Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 1394 (9th Cir. 1989)

Kenneth F. and Lillian HYATT, Plaintiffs-Appellants,v.CALIFORNIA FEDERAL SAVINGS AND LOAN, et al., Defendants-Appellees.

No. 88-2725.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 31, 1989.* Decided Sept. 5, 1989.

Before TANG, NELSON and REINHARDT, Circuit Judges.


MEMORANDUM** 

Kenneth F. Hyatt and Lillian Hyatt ("the Hyatts") appeal pro se the district court's refusal to block the foreclosure sale of their home and its dismissal for frivolity of their in forma pauperis complaint against the California Federal Savings and Loan Association ("the Association") and the United States Bankruptcy Court. The Hyatts contend that the district court erred in refusing to block the sale of their home by the Association and in dismissing their action. The Association contends that the dismissal was proper because the Hyatts' claims have no arguable basis in law or in fact. We review for abuse of discretion the district court's dismissal of an in forma pauperis complaint. See Franklin v. Murphy, 745 F.2d 1221, 1233 (9th Cir. 1984).

* Background

The Hyatts brought suit against the Association and the Bankruptcy Court to block the foreclosure sale of their home by the Association pursuant to the terms of a deed of trust. The deed was recorded by the Association to secure a loan on which the Hyatts failed to make timely payments subsequent to the Bankruptcy Court's final dismissal of their third bankruptcy petition. The Hyatts alleged violations of their civil rights, extortion and violations of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c). They applied for a temporary restraining order and also sought a preliminary injunction, damages, a jury trial, costs and a finding that the Association's claim to repayment of the loan was extinguished. Their complaint was dismissed as frivolous, vexatious and interposed to delay and impede the administration of justice.

II

Dismissal

The district court may dismiss as frivolous an in forma pauperis (IFP) complaint if a "defense is complete and obvious from the face of the pleadings or the court's own records." Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984); 28 U.S.C. § 1915(d); see also Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989) (an IFP action is frivolous if it lacks an arguable basis in law or in fact).

Self-help repossession procedures undertaken by California creditors do not involve the requisite state action to establish a federal cause of action under 42 U.S.C. § 1983. Adams v. Southern California First National Bank, 492 F.2d 324, 329 (9th Cir. 1973), cert. denied, 419 U.S. 1006 (1974). Moreover, bankruptcy judges "are absolutely immune from civil liability for damages for their judicial acts." Mullis v. United States Bankruptcy Court, District of Nevada, 828 F.2d 1385, 1388 (9th Cir. 1987), cert. denied, 108 S. Ct. 2031 (1988). Because the Hyatts base their civil rights claim to injunctive relief and damages on the district court's failure to block the foreclosure sale of their home by the Association pursuant to a private deed of trust and on the Bankruptcy's Court's dismissal of their petition in bankruptcy, dismissal was proper because the defenses of lack of state action1  and judicial immunity are obvious from the language of the complaint and the facts before the district court. See Franklin, 745 F.2d at 1228; Adams, 492 F.2d at 329; Mullis, 828 F.2d at 1388.

In order to set forth a civil cause of action under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), the claimant must allege "(1) conduct, (2) of an enterprise, (3) through a pattern ... (4) of racketeering activity." See Jarvis v. Regan, 833 F.2d 149, 151-52 (9th Cir. 1987) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 [495-96] (1985)); 18 U.S.C. § 1964(c). Because the Hyatts failed to allege a single requisite element of a civil RICO violation on the part of the Association or the Bankruptcy Court, there was no basis for their RICO claim, and dismissal of that aspect of the complaint was proper as well. See Neitzke, 109 S. Ct. at 1831; Jarvis, 833 F.2d at 151-52.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The Hyatts cite Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), in support of the proposition that the foreclosure sale could be deemed to have occurred under color of state law, but fail to appreciate the distinct facts of that case. The Lugar court found that debt collection proceedings in state court pursuant to a Virginia attachment statute constitute state action as required by 42 U.S.C. § 1983. See id. at 934-35. A self-help foreclosure action pursuant to the terms of a private deed of trust does not involve state court proceedings and hence does not provide the requisite state action contemplated by Lugar. Compare id. with Adams, 492 F.2d at 329 (self-help repossession procedures by California creditors do not constitute state action)