Unpublished Disposition, 940 F.2d 668 (9th Cir. 1991)
Annotate this CaseWilliam R. KNIGHT, Plaintiff-Appellant,v.Jeff SANDERS, Detective, Tucson Police Department, WalterSpalding, Officer, Tucson Police Department,Rupel, Officer, Tucson PoliceDepartment, Tucson PoliceDepartment,Defendants-Appellees.
No. 89-15654.
United States Court of Appeals, Ninth Circuit.
Submitted July 23, 1991.* Decided July 26, 1991.
Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.
MEMORANDUM**
William Knight, an Arizona state prisoner, appeals pro se the district court's dismissal of his action under 42 U.S.C. § 1983 as frivolous under 28 U.S.C. § 1915(d).1 Knight's complaint alleges that the Tucson Police Department and its officers negligently lost his impounded automobile. We vacate and remand.
We review de novo the district court's sua sponte dismissal of a frivolous in forma pauperis complaint under 28 U.S.C. § 1915(d). Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640.
A state employee's random, unauthorized deprivation of property does not violate the procedural requirements of the due process clause if the state provides a meaningful postdeprivation remedy for the loss. Zinermon v. Burch, 110 S. Ct. 975, 978 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). The requirement that a party pay a filing fee does not render a remedy meaningless as long as the case does not implicate a fundamental interest and the party has some alternative recourse. Ortwein v. Schwab, 410 U.S. 656, 658-60 (1973) (per curiam) (filing fee for appellate review of agency determination resulting in reduced welfare benefits); United States v. Kras, 409 U.S. 434, 443-46 (1973) (filing fee for bankruptcy discharge); Piatt v. MacDouglall, 773 F.2d 1032, 1034-35 (9th Cir. 1985) (per curiam) (prisoner's claim for wages); cf. Little v. Streater, 452 U.S. 1, 16-17 (1981) (due process requires waiver of costs for blood tests in quasi-criminal paternity suit); Boddie v. Connecticut, 401 U.S. 371, 383 (1971) (same; filing fee for divorce action).
Knight contends in part that the postdeprivation remedy for the loss of his automobile, see A.R.S. Sec. 12-821 et seq., is not meaningful because the Arizona superior court denied his request to waive filing fees. We cannot say from the face of the complaint Knight's contention regarding the filing fee is frivolous. See Neitzke, 490 U.S. at 324. While no fundamental right is implicated, Knight may have no other means of seeking compensation for his lost automobile. See Piatt, 773 F.2d at 1035. Whether the absence of such means is sufficient raises an arguable question of law. Such a question may not be resolved on a Sec. 1915(d) dismissal. Accordingly, we vacate the district court's order and remand for issuance and service of process. See Jackson, 885 F.2d at 640.
VACATED 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
The district court dismissed the in forma pauperis complaint sua sponte before service of process. We interpret this dismissal as a dismissal under 28 U.S.C. § 1915(d). See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989)
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