Unpublished Disposition, 897 F.2d 533 (9th Cir. 1990)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

Ramon SANCHEZ, Plaintiff-Appellant,v.Samuel A. LEWIS, James R. Upchurch, and T.L. Sherman,Defendants-Appellees.

No. 89-15268.

United States Court of Appeals, Ninth Circuit.

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



Ramon Sanchez, an Arizona state prisoner, appeals pro se and in forma pauperis the district court's order dismissing his 42 U.S.C. § 1983 civil rights action. Sanchez contends that Arizona prison officials wrongfully deprived him of his personal property. We review de novo, Jackson v. State of Arizona, 885 F.2d 639, 640 (9th Cir. 1989) and we reverse and remand.

Sanchez was transferred from the Missouri Department of Corrections to the Arizona Department of Corrections. His television and stereo were mailed from Missouri to the Alhambra Reception Center (Alhambra) in Phoenix, Arizona. The property was sent back to Missouri in error by Alhambra officials. When the property arrived in Arizona for the second time, it had been damaged in transit. The property was apparently declared contraband because it was damaged, and Sanchez was given 30 days to dispose of it. Because he could not afford to mail the property home within the 30 day period, prison officials disposed of it. The district court dismissed Sanchez'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.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Nietzke v. Williams, 109 S. Ct. 1827, 1831 (1989). 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, we liberally construe pleadings 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 service of process. Jackson, 885 F.2d at 640.

To the extent that Sanchez's complaint can be construed as alleging that his television and stereo were damaged in transit as a result of official negligence, the due process clause is not implicated and Sanchez fails to state a cognizable section 1983 claim. See Daniels v. Williams, 474 U.S. 327, 330-32 (1986).

However, Sanchez's complaint may be construed as alleging that his stereo and television were damaged in transit as a result of some random and unauthorized official conduct. If Sanchez has no adequate post-deprivation remedy, he would state an arguable section 1983 claim. See Parratt v. Taylor, 451 U.S. 527, 539-41 (1981); Hudson v. Palmer, 468 U.S. 517, 536 (1984). Although Ariz.Rev.Stat. Secs. 12-821 et seq. allows recovery for the tortious taking of property, Sanchez claims that this statute does not provide an adequate state remedy because Arizona requires him to prepay a mandatory fee prior to filing his civil action. Sanchez asserts that because he cannot pay this fee, it effectively bars recovery in his case. We have found no Ninth Circuit or Supreme Court case law which determines whether such a mandatory filing fee renders a state remedy inadequate. He therefore states an arguable claim. Cf. Blancada v. Turnage, 883 F.2d 836, 838 (9th Cir. 1989).

Sanchez's complaint may also be construed as alleging that his property was ultimately destroyed pursuant to an Arizona corrections prison policy or procedure, another arguable section 1983 claim. See Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1985). See also Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985) (en banc). Sanchez is therefore entitled to issuance and service of process upon defendants. See Jackson, 885 F.2d at 640.



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 Circuit R. 36-3