Unpublished Disposition, 897 F.2d 533 (9th Cir. 1990)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

Stanley Ezell SINGLETON, Plaintiff-Appellant,v.D. LABRANCH, Defendant-Appellee.

No. 87-2672.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 28, 1990.* Decided March 6, 1990.

Before ALARCON, CYNTHIA HOLCOMB HALL and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Stanley Ezell Singleton appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(d). We review de novo, Jackson v. State of Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm.

Singleton's complaint alleged that after police officers stopped and searched his car, Officer Labranch intentionally left Singleton's car keys in the car, thus allowing vandals to steal and destroy his property. He contends that Labranch is liable for (1) violating his fifth amendment property rights; (2) negligence; and (3) depriving him of the key to his car and personal property within the car without due process of law. The district court dismissed the complaint as frivolous under section 1915(d). The court found that the existence of an adequate state post-deprivation remedy precluded a finding that Singleton's due process rights were violated.1 

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). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Id. Generally, the district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). However, if it is absolutely clear that the deficiencies of the complaint cannot be cured, the district court may dismiss the complaint without granting leave to amend. Id.

The district court was correct in dismissing Singleton's complaint without allowing him leave to amend. Singleton's due process claims under the fifth and fourteenth amendments fail because intentional deprivations of property by a state employee do not violate the due process clause if a meaningful post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984).2  Here, Singleton concedes that such a remedy exists. Moreover, Singleton's claim of negligence fails because mere negligence by state officials is insufficient to state a claim under section 1983. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). Finally, the deficiencies of the complaint were not curable by amendment. See Noll, 809 F.2d at 1448.3 

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Singleton's request for oral argument is denied

 **

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

Singleton contends on appeal that the district court erred in requiring him to exhaust administrative remedies without first determining that such remedies are in compliance with 42 U.S.C. § 1997e. Singleton further contends that if the district court finds that exhaustion is appropriate, it should allow him time to exhaust such remedies. These contentions misconstrue the district court's judgment, which does not discuss section 1997e

 2

Even if we liberally construe Singleton's complaint to state a claim under the fifth amendment takings clause, this claim also fails because his private property was not taken for public use. See U.S. Const. amend. V

 3

Singleton's motion for an extension of time to prepare additional citations is denied as moot