Unpublished Disposition, 897 F.2d 533 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 897 F.2d 533 (9th Cir. 1990)

Ken R. HULBERT, Plaintiff-Appellant,v.Mollye SILFIES-HULBERT, et al., Defendants-Appellees.

No. 88-15204.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 28, 1990.* Decided March 5, 1990.



Ken Hulbert and his minor children, Unity H., Keni H., and Kati H.,1  appeal pro se the district court's dismissal of their diversity action for injunctive relief and damages. 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.

In his complaint, Hulbert alleged that his former wife, sister-in-law, mother-in-law, and stepson conspired to interfere with his visitation rights with his children in violation of a visitation decree. He sought an injunction to restrain the defendants from further interfering with his visitation rights, as well as compensatory and punitive damages for past interference. The district court dismissed the complaint before serving process upon the defendants because it found Hulbert's claim for injunctive relief was barred by the domestic relations exception to diversity jurisdiction. The court also dismissed the claim for damages believing that "equitable considerations favor the resolution of the damages issue and the enforcement issue in a single proceeding [in state court]."2 

Hulbert contends the district court erred in dismissing his complaint sua sponte. 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).3  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 Hulbert's entire complaint sua sponte. Although Hulbert's request for injunctive relief was barred by the domestic relations exception to diversity jurisdiction, the domestic relations exception does not apply where a husband seeks monetary damages from his former wife for the alleged tortious interference with visitation rights. See McIntyre v. McIntyre, 771 F.2d 1316, 1318 (9th Cir. 1985). Therefore, Hulbert has alleged an arguable claim for monetary damages. He is entitled to issuance and service of process on this claim.

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


Although Hulbert's notice of appeal only listed the name of his daughter, Unity, in the caption, the term "plaintiffs" in the body of the notice of appeal fairly indicated that all of the plaintiffs were appealing. See National Center for Immigrants' Rights, Inc. v. I.N.S., 892 F.2d 814, 816 (9th Cir. 1989)


The district court also found that Hulbert's inclusion of John Doe defendants from California defeated diversity jurisdiction. This is no longer the law in our circuit. See Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1425 (9th Cir. 1989)


The district court dismissed the 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