Unpublished Disposition, 930 F.2d 27 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 27 (9th Cir. 1990)

No. 90-15741.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 11, 1990.* Decided March 21, 1991.

Before POOLE, CANBY and DAVID R. THOMPSON, Circuit Judges.


Dennis Nelson Fixel brought two actions under 42 U.S.C. § 1983 alleging constitutional violations by the United States of America, the United States District Court, various court personnel, the Nevada Department of Prisons ("NDOP"), and the prison warden. These actions were consolidated pursuant to Fed. R. Civ. P. Sec. 42. Fixel appeals pro se the district court's dismissal of both complaints as frivolous. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


Fixel is an inmate at Nevada's Ely State Prison. He brought two section 1983 actions alleging that his constitutional right of access to the courts of the United States has been violated, together with his right to petition the government for redress. In addition, he claims double jeopardy violations against the warden for neglecting to release him from a lock-down unit, and ultimately from prison, after his sentence was lengthened for his use of a weapon during the commission of a crime.

On November 8, 1989, Fixel mailed the deputy clerk two habeas corpus petitions which were returned because Fixel failed to include the appropriate financial certificate as required by the Federal Local Court Rules, Nevada (local court rules) governing motions for leave to proceed in forma pauperis. After receiving the correct forms from the NDOP approximately two months later, Fixel resubmitted the petitions only to have them returned by the pro se law clerk for failure to comply with local court rules regarding page limit and number of grounds which can be filed in a habeas corpus petition.

The district court granted Fixel leave to proceed in forma pauperis ; however, the court dismissed, prior to service of process, both of Fixel's complaints as frivolous pursuant to 28 U.S.C. § 1915(d) and this circuit's holding in Franklin v. Murphy, 745 F.2d 1221, 1225-26 (9th Cir. 1984).


We review a district court's decision to dismiss an in forma pauperis complaint as frivolous de novo. Jackson v. State of Arizona, 885 F.2d 639, 640 (9th Cir. 1989). Under 28 U.S.C. § 1915(d), a court is authorized to dismiss an in forma pauperis action sua sponte without issuance or service of process if it is determined that the allegation of poverty is untrue, or that the action is frivolous or malicious. Id.

The Supreme Court, interpreting section 1915(d), has held that a claim is frivolous under section 1915(d) when it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319 (1989). See Jackson, 885 F.2d at 640.

We have recognized that an in forma pauperis action may be dismissed as frivolous when (1) the complaint contains only legal conclusions with no supporting facts, (2) the claims are repetitious or barred by the doctrine of res judicata, (3) a defense is clear from the face of the complaint or from the court's own records, or (4) the claim is "wholly fanciful." Hernandez v. Denton, 861 F.2d 1421, 1425-26 (9th Cir. 1988).

We have carefully reviewed Fixel's complaints. The district court's order dismissing the complaints as frivolous under 28 U.S.C. § 1915(d) is affirmed for the reasons stated by the district court in its Memorandum Decision and Order filed April 23, 1990.



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