Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1990)

Gerald Arthur FRIEND, Plaintiff-Appellant,v.Frederick NORTON, et al., Defendants-Appellees.

No. 89-35303.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Feb. 9, 1990.

E.D. Wash.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

Appeal from the United States District Court for the Eastern District of Washington, Alan A. McDonald, District Judge, Presiding.

Before CANBY, BRUNETTI, and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Gerald Friend, a Washington state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action without prejudice. We review de novo, Jackson v. State of Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm in part and reverse and remand in part.

Friend's second amended complaint alleged that police officers violated his fourth and fourteenth amendment rights in searching and impounding his Honda motorcycle, Ford Grand Torino, and the personal property within these vehicles. The district court interpreted Friend's claim as one alleging only a deprivation of property without due process of law. Pursuant to that interpretation, the court dismissed the complaint for failing to allege facts sufficient to invoke federal subject matter jurisdiction. The court reasoned that Friend did not allege that the police acted pursuant to a state procedure or that no state post-deprivation remedies were available.

Friend contends that the district court erred in dismissing his complaint because he stated a colorable claim under the fourth amendment.1  This contention has merit.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989).2  A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Id. In civil rights cases where the plaintiff appears pro se, the court must construe pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640.

The district court erred in dismissing Friend's complaint sua sponte. Friend alleges that police officers seized his motorcycle and the personal property therein without authorization. Friend also alleges that police officers seized personal property from his car which was not listed in the warrant, nor related to the charged crime. These allegations arguably state a claim under the fourth amendment. See Mann v. City of Tucson, Dept. of Police, 782 F.2d 790, 793 (9th Cir. 1986). Therefore, Friend is entitled to issuance and service of process on his fourth amendment claim. See Jackson, 885 F.2d at 640.3 

AFFIRMED in part, REVERSED and REMANDED in part.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th 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

Friend does not contend nor do we find that the district court erred in dismissing his fourteenth amendment claim. We therefore affirm the district court's dismissal on this ground

 2

The district court dismissed Friend's complaint sua sponte before service of process. We interpret this dismissal as a dismissal under 28 U.S.C. § 1915(d). See Jackson, 885 F.2d at 640

 3

On remand, the district court should reevaluate Friend's motion for appointment of counsel