Patrick W. O'bryan, Plaintiff-appellant, v. Loretta Bowman, Defendant-appellee, 983 F.2d 1077 (9th Cir. 1992)

MEMORANDUM^** 

Patrick W. O'Bryan (O'Bryan), a Nevada state prisoner, appeals pro se the district court's dismissal of his complaint under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as frivolous pursuant to 28 U.S.C. § 1915(d)¹ . O'Bryan seeks copies of all documents in "Case No. C93991." Defendant Loretta Bowman (Bowman) is the clerk of court for the eighth judicial district court of the State of Nevada.

The district court dismissed O'Bryan's complaint on the basis that the alleged deprivation of O'Bryan's civil rights occurred pursuant to 5 U.S.C. § 552, which applies only to federal government agencies. Since Bowman was a state agent, O'Bryan's action was frivolous. See Franklin v. State of Oregon, 563 F. Supp. 1310, 1311 (Or.1983), aff'd sub. nom., Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984).

O'Bryan argues that the district court mistakenly construed his complaint as one under 42 U.S.C. § 1983 and, therefore, required that O'Bryan plead state action. He contends that his action is under 5 U.S.C. §§ 552 and 552a, not 42 U.S.C. § 1983.

The district court construed O'Bryan's complaint as one under 42 U.S.C. § 1983. This construction derives from a preprinted form used by O'Bryan for his motion for leave to proceed in forma pauperis. (C.R. 2) That form requires the author to characterize his/her action as one of two types: "habeas corpus/civil rights" or "action [s] under 28 U.S.C. § 2255 or Fed. R. Crim. P. 35." (Id.) Faced with this choice, O'Bryan chose the former alternative.

A review of O'Bryan's one page complaint reveals that O'Bryan seeks to state a claim under 5 U.S.C. § 552, not 42 U.S.C. § 1983. Nonetheless, the district court did not err in dismissing O'Bryan's complaint. The FOIA applies to all "agencies," 5 U.S.C. § 552. "Agencies" are defined as "each authority of the Government of the United States." 5 U.S.C. § 552(1). The FOIA does not apply to state governments. St. Michael's Convalescent v. State of Cal., 643 F.2d 1369, 1373 (9th Cir. 1981); Kerr v. United States Dist. Ct. for North. Dist. of Cal., 511 F.2d 192, 197 (9th Cir. 1975). As O'Bryan seeks records from a state agency, which is not subject to the FOIA, the district court properly dismissed his complaint.

AFFIRMED.