Unpublished Disposition, 937 F.2d 613 (9th Cir. 1991)Annotate this Case
Mikeal Glenn STINE, Plaintiff-Appellant,v.ARIZONA DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Submitted June 27, 1991.* Decided July 1, 1991.
Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.
Mikeal Glenn Stine, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action.1 Stine contends that the district court erred in dismissing his complaint as frivolous.2 We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we reverse and remand.
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. An indigent plaintiff with an arguable claim is entitled to issuance and service of process. Jackson, 885 F.2d at 640. "In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford the plaintiff the benefit of any doubt." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
Stine's complaint alleged that he was denied due process because prison officials failed to give him adequate notice of alleged rule violations before holding a disciplinary hearing. Stine's complaint stated that the prison's "Form number one, Notice of Alleged Rule Violation" gives the prisoner the categorical definitions of the charge, but does not contain any factual circumstances or events that describe the alleged violations. Stine further alleged that he was not informed of the factual basis of the alleged violations until he appeared at the hearing, and therefore he was not able to marshal the facts and prepare a defense.
The Supreme Court has held that due process requires that a prisoner accused of disciplinary infractions must be given advance written notice of the charges that is sufficiently specific "to inform him of the charges and to enable him to marshal the facts and prepare a defense." Wolff v. McDonnell, 418 U.S. 539, 564 (1974). Because Stine's complaint alleged that the notice he received did not describe any of the facts underlying the alleged infractions, and that therefore he did not have an opportunity to marshal the facts and prepare a defense, his due process claim has an arguable basis in law. See id. Therefore, the district court erred in dismissing Stine's complaint as frivolous. See Neitzke, 109 S. Ct. at 1831; Jackson, 885 F.2d at 640. Accordingly, we reverse and remand for issuance and service of process.
REVERSED AND REMANDED.
The panel unanimously finds this case suitable for decision 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
Although the notice of appeal lists the names of eight other plaintiffs, it is signed only by Stine. To be effective, the notice of appeal must be signed by each party or his attorney. McKinney v. De Bord, 507 F.2d 501, 503 (9th Cir. 1974); see also Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir. 1986) (each pro se litigant must personally sign the notice of appeal). Accordingly, because Stine is not an attorney and the other pro se plaintiffs did not sign the notice of appeal, the purported appeals by Arthur Mayhan, Woodrow Miles, Robert Burton, Mitchell Jackson, Charles Serva, Ricardo Acosta, Johnny Saenz, and Shawn Brewster are dismissed. See id
We interpret the district court's sua sponte dismissal of the in forma pauperis complaint before service of process as a dismissal under 28 U.S.C. § 1915(d). See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989)