Unpublished Disposition, 940 F.2d 667 (9th Cir. 1991)

MEMORANDUM^** 

Douglas C. Farmer, a California state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action for failure to prosecute. We review for an abuse of discretion, Franklin v. Murphy, 745 F.2d 1221, 1232 (9th Cir. 1984), and affirm.

On May 10, 1985, Farmer filed this section 1983 action alleging that prison officials deprived of a $130.78 investment in hobby materials and illegally seized some of his hobby materials during a search of his cell. On July 3, 1985, the district court sua sponte dismissed with leave to amend "to specify the precise circumstances of the alleged cell search and seizure." Farmer never amended his complaint. On September 6, 1985, Farmer filed "a motion requesting that the complaint [be] tabled until plaintiff was out of prison." On October 14, 1986, the district court dismissed the action with prejudice for failure to prosecute. Farmer filed a motion for reconsideration on November 3, 1986, which the district court denied.

Farmer contends that the district court erred in dismissing his complaint for failure to prosecute. This contention lacks merit.

A district court may sua sponte dismiss an action for failure to prosecute. McKeever v. Block, No. 89-55552, slip op. at 5625 (9th Cir. May 2, 1991). But a case should be dismissed only for an unreasonable failure to prosecute. Id. Whether the failure to prosecute was unreasonable depends on whether Farmer's complaint was frivolous. See id. A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989).

To state a section 1983 claim, a plaintiff must allege facts which show a deprivation of a right, privilege or immunity secured by the Constitution by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

Here, Farmer's complaint alleged that prison officials confiscated his property and failed to reimburse him for hobbies ordered but not received. Farmer does not have an arguable section 1983 claim even if prison officials intentionally deprived him of his property because California law provides an adequate post-deprivation remedy for his alleged loss. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 544 (1981); Cal.Govt.Code Sec. 900 et seq. Thus the district court's sua sponte dismissal was proper because Farmer's complaint lacks an arguable basis in law or in fact. See Neitzke, 109 S. Ct. at 1831.

AFFIRMED.