Unpublished Disposition, 907 F.2d 154 (9th Cir. 1990)

MEMORANDUM^** 

John Joseph Albano, a Nevada state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights complaint without service and with prejudice. He argues that the district court erred by 1) dismissing his complaint as frivolous, 2) ruling that his claims are barred by the statute of limitations, and 3) denying him leave to amend the complaint. We vacate the district court's order to dismiss the complaint as frivolous and remand the case with instructions.

Albano sued five public defenders for conspiring with the state judge and state prosecuting attorneys to get him to plead guilty of a felony offense. It is unclear from the complaint whether he is entitled to relief under section 1983. He alleges no intelligible set of facts showing that the defendants acted under color of state law by concerting with the judge and prosecutors to deprive him of his civil rights. Conclusory allegations of a conspiracy are insufficient to support a section 1983 claim. That his complaint may not survive a motion to dismiss for failure to state a claim does not automatically mean that his action is frivolous. See Neitzke v. Williams, 109 S. Ct. 1827 (1989); Jackson v. Arizona, 885 F.2d 639 (9th Cir. 1989).

A complaint is frivolous if it lacks an arguable basis in either law or in fact. Neitzke, 109 S. Ct. at 1831. Albano's complaint would lack an arguable basis in law if his claim were time-barred. However, it is unclear from the complaint when his cause of action accrued. As a result, we cannot determine whether his claim is time-barred. Consequently, his claim cannot be deemed to lack an arguable basis in law.

If Albano's factual contentions were clearly baseless, his complaint would be dismissed as frivolous. However, it is unclear whether his factual allegations are baseless or just incomprehensibly pled. Therefore, the complaint cannot be deemed to be frivolous.

Accordingly, we vacate the district court's order and remand with instructions that Albano's complaint be served on defendants.

VACATED and REMANDED with instructions.

NOONAN, Circuit Judge, dissenting:

The complaint in this case is unintelligible. It is an imposition upon the district court, this court, and the resources of the judicial system to give the plaintiff further opportunity to continue his course. I would affirm.