Anant Kumar Tripati v. First National Bank & Trust
821 F.2d 1368
1st Cir.
1987
Check Treatment
ALARCON, Circuit Judge:

Anаnt Kumar Tripati (hereinafter Tripati) appeals from the denial of his motion for leave to proceed in forma pauperis. Tripati sought to file an action against First National Bank & Trust (hereinafter Bank) and his formеr attorney, Chester L. Brown (hereinafter Brown) for fraud and violations of the Racketeer Influenced and Corrupt Organizations Act (hereinafter RICO). Tripati filed a motion for leave to proceed in forma paupеris. The district court denied the motion, and reasoned that Tripati (1) “is attempting to relitigate matters which have been resolved against him in First National Bank & Trust v. Fort Lincoln Life Insurance Co., CV-83-192BLG[,] ... [ (2) pjlaintiff’s complaint is of dubious merit and [3] plaintiff has shown no exceptional circumstаnces which convince the ‍‌​​‌​​‌​​‌‌​​​‌‌‌‌​‌‌‌‌‌​‌​​​​​‌‌‌​‌​‌​​‌‌‌‌‌​​​‍Court” that the motion should be granted. Tripati сontends that the district court abused its discretion in denying his motion. We disagree.

I.

“The denial by a District Judge of a motion to proceed informa pauperis is an appealable order.” Roberts v. United States District Court, 339 U.S. 844, 845, 70 S.Ct. 954, 955, 94 L.Ed. 1326 (1950); Lipscomb v. United States, 301 F.2d 905, 905 (9th Cir.1962) (per curiam). We review the district court’s denial of leave to proceed in forma pauperis in civil cases for abuse of discretion. Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir.), cert. denied, 419 U.S. 1090, 95 S.Ct. 683, 42 L.Ed.2d 683 (1974). We review de novo the district court’s apparent determination that Tripati’s complaint lаcked arguable substance in law or fact. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.1985).

II.

Tripati contends the district сourt erred in denying his motion for leave to proceed in forma ‍‌​​‌​​‌​​‌‌​​​‌‌‌‌​‌‌‌‌‌​‌​​​​​‌‌‌​‌​‌​​‌‌‌‌‌​​​‍pаuperis because his complaint does state a claim and is not frivоlous. We disagree.

. Under 28 U.S.C. § 1915(a) (1982 & Supp. III 1985), the district court “may authorize the commencement ... [or] prosecution ... of any suit ... without prepayment of fees аnd costs ... by a person who makes affidavit that he is unable to pay such *1370 сosts____” The court may also dismiss the case if the action is frivolous. Id. § 1915(d).

A district cоurt may deny leave to proceed in forma pauperis at the оutset if it appears ‍‌​​‌​​‌​​‌‌​​​‌‌‌‌​‌‌‌‌‌​‌​​​​​‌‌‌​‌​‌​​‌‌‌‌‌​​​‍from the face of the proposed cоmplaint that the action is frivolous or without merit. Reece v. Washington, 310 F.2d 139, 140 (9th Cir.1962); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.), cert. denied, 382 U.S. 896, 86 S.Ct. 192, 15 L.Ed.2d 153 (1965). The district court found that Tripati’s complaint “is of dubious merit” and denied his motion to proceed in formа pauperis.

An in forma pauperis complaint is frivolous if “it had no arguable substance in law or fact.” Rizzo, 778 F.2d at 529; Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.1984). However, pro se plaintiffs proceeding in forma pauperis “must also be given an opportunity to amend their ‍‌​​‌​​‌​​‌‌​​​‌‌‌‌​‌‌‌‌‌​‌​​​​​‌‌‌​‌​‌​​‌‌‌‌‌​​​‍complaint unless it is ‘absolutely clear that the deficiencies of the complaint could not be cured by amendment.’ ” Franklin, 745 F.2d at 1228 n. 9 (quoting Stanger v. City of Santa Cruz, 653 F.2d 1257, 1257-58 (9th Cir.1980)).

Tripati’s proposed complaint’s allegations against the Bank seek review of First National Bank & Trust v. Fort Lincoln Life Ins. Co., CV 893-192-BLG, anothеr action pending before the district court involving the same parties аnd the same transactions. In that case, a default judgment was entered аgainst Tripati, but a final judgment has not been entered. Thus, Tripati’s premature action to attack a default judgment in a collateral procеeding is clearly frivolous.

Tripati’s complaint also alleges that his attorney Brown acted in concert with the Bank to deny him access to cоurt. Since, as we noted above, Tripati’s claim against ‍‌​​‌​​‌​​‌‌​​​‌‌‌‌​‌‌‌‌‌​‌​​​​​‌‌‌​‌​‌​​‌‌‌‌‌​​​‍the Bank for racketeering activities is frivolous because it is premature, his related claim against Brown for participating in these activities is also frivolous.

Triрati’s only factual allegation in his complaint is that Brown “failed to plеad.” Assuming the truth of this allegation, the complaint does not state a clаim for fraud or racketeering. No relationship between the Bank and Brоwn was factually alleged, nor is it disclosed by the record. Therefore, it аppears from the record that Tripati cannot allege any facts in support of his claims, and the deficiencies of the complaint could not be cured by amendment. The district court did not abuse its discretion in denying Tripati leave to proceed in forma pauperis.

The judgment is AFFIRMED and the matter is REMANDED to the district court to dismiss the action under 28 U.S.C. § 1915(d).