Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1990)

George SOKOVICH, Plaintiff-Appellant,v.Sgt. THOMAS, in official and individual capacity, EuniceMartin, in official and individual capacity,Richard Fimbres, in official andindividual capacity,Defendant-Appellees.

No. 90-15185.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 11, 1990.* Decided May 29, 1991.

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


MEMORANDUM** 

George Sokovich, an Arizona state prisoner, appeals pro se the dismissal of his 42 U.S.C. § 1983 action. We affirm the district court's dismissal.

FACTS

In his complaint, Sokovich alleged that he was removed from the general prison population and placed in administrative segregation without advance notice. The next day, he was given written notice of a hearing to be held the following day. The hearing was to determine whether he would continue to be held in administrative segregation. The notice listed "administration investigation" as the reason for the placement.

At the hearing, Sokovich alleges he was told, for the first time, he was being investigated for "introducing contraband to the facility and strong-arming." A week later, Sokovich received written notification the hearing committee decided to continue housing him in administrative segregation, pending completion of the investigation, with further hearings to be held every thirty days.

Sokovich then filed this complaint with the district court. He was granted in forma pauperis status. On January 5, 1990, before process was served on the defendants, the district court dismissed the action. On January 30, 1990 Sokovich filed a "Motion for Leave to File Amendment to Original Complaint" under Fed. R. Civ. P. 15(a) and a "Motion for Relief of Judgment" under Fed. R. Civ. P. 60(b) (6). The district court did not rule on these motions. On February 1, 1990, Sokovich filed his notice of appeal from the judgment filed January 5, 1990, which dismissed his action.

DISCUSSION

Initially we observe that Sokovich has not appealed from any ruling by the district court on his motions filed January 30, 1990. Indeed, his notice of appeal deprived the district court of jurisdiction to rule on these motions. Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir. 1979). Sokovich's appeal raises only the question of the propriety of the district court's dismissal of his action without the service of process on the defendants.

We review de novo a district court's decision to dismiss an in forma pauperis complaint prior to service of process. Jackson v. State of Arizona, 885 F.2d 639, 640 (9th Cir. 1989). Under 28 U.S.C. § 1915(d), federal courts are authorized to dismiss a complaint filed in forma pauperis if the allegation of poverty is untrue, or if satisfied the action is frivolous or malicious. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989).

Sokovich's complaint, filed under 42 U.S.C. § 1983, is premised on his allegation that he has a constitutionally-protected liberty interest in remaining in the general prison population. He argues that he was deprived of this constitutional right without due process of law. We reject this contention.

Sokovich has no liberty interest under Arizona law to remain in the general prison population. McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986). Nor does he have any such right independently protected under federal law. Hewitt v. Helms, 459 U.S. 460, 468 (1983). Because this asserted right, and its alleged violation, is the gravamen of Sokovich's complaint under 42 U.S.C. § 1983, it is plain that the complaint lacks any arguable basis in law or in fact and was properly dismissed by the district court prior to service of process.

AFFIRMED.

 *

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