Joseph Jackson, II v. State of Arizona (Unknown) Terry, Deputy Acting Warden (Unknown) Avenenti, Deputy Warden
885 F.2d 639
9th Cir.
1989
Check Treatment

*1 Bеfore THOMPSON and TROTT, Judges. Circuit THOMPSON, R. DAVID Judge:

Joseph appeals pro se the dis- judgment dismissing trict court’s his action damages ‍‌‌‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​‍against the Stаte of Arizona and two jurisdic- finds this case for submis- *2 to process, to issuance of so as sponte prior affirm in 1291. We 28 U.S.C. tion undеr prospective defendants the inconven- spare and remand. part, reverse answering com- expense of such ience and Neitzke, BACKGROUND plaints.” 109 S.Ct. at 1831. complaint alleged that Jackson’s is no in the record There evidence range of his violated a wide have officials impoverished or that that Jackson is not petition also filed a rights. Jаckson Therefore, is malicious. the dis the action (“IFP”), which pauperis proceed in forma sponte trict cоurt’s sua dismissal granted. was prior process only service of could action noted, complaint justified if the was frivolоus court Jackson’s district de unintelligible.” The section We review the “largely ‍‌‌‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​‍under complaint is is de a claim un- termination that a claim frivolous complaint clearly fails to state Carlson, 12(b)(6). F.2d 1447 Fed.R.Civ.P. novo. Noll v. 809 der 12(b)(6). pro- Declining to order service of cess, sponte dis- court sua the district within complaint A is “frivolous” complaint with leave to amend missed the 1915(d) only if thе of section it on cor- instructions how to and with brief in law or fact. lacks an complaint’s numerous defects. rect Nеitzke, Thus, judge 109 S.Ct. at 1831. a days gave thirty Jackson The court may dismiss IFP claims which are “based complaint. After failed his Jackson amend legal indisputably meritless theories” or on complaint thirty- to amend clearly are whose “factual contentiоns court dismissed the day period, the district baseless.” Id. at against him. action and entered hand, indigent plaintiff On the other an motion to reconsider and filed a with an claim is entitled to is- complaint, amendments for the some late Neitzke, prоcess. cure amendments did not the defi- but the 1834; Rackmill, 109 S.Ct. at 878 Wilson by the district ciencies identified court. (3d Cir.1989). F.2d 774-75 Service of denied the mоtion to re- The district court process “indigent plaintiffs the assures consider. practical protections against unwarranted paying plain- dismissal accorded 28 DISMISSALS UNDER Neitzke, tiffs under the Federal Rules.” 1915(d) U.S.C. § “Congress’ at ‍‌‌‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​‍1834. And over- statute, pauperis “The federal forma arching goal enacting pau- the in forma presently codified as 28 enacted in 1892 peris equality statute ‘to assure [was] designed to ensure that is U.S.C. § ” Neitzke, litigants.’ consideration for all meaningful indigent litigants have access (quoting Coppedge at 1834 courts.” Neitzke v.

to the federal States, 438, 447, United 369 U.S. 82 S.Ct. 109 S.Ct. 917, 922, (1962)). In 8 L.Ed.2d (1989) (unanimous 1831, 104 L.Ed.2d 338 case, present district court did nоt or- decision). litigant may prosecute IFP An Thus, der and service of issuance paying filing fees or court lawsuit without Neitzke, inquiry our critical is wheth- result, litigants, IFP As a un- costs. Id. any er claims has an litigants, little “economic paying like basis in law and fact. frivolous, filing from incentive to refrain malicious, Deciphering pro repetitive lawsuits.” Id. To se or difficult, litigation, plaint but we cоnstrue the com prevent such abusive section 1915(d) redundant permits plaint federal courts to dismiss nine somewhat allegаtion poverty the State of Arizona and IFP claims “if ‍‌‌‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​‍the untrue, Initially, we note that if satisfied that the action is two or Neitzke, bars Jackson’s 109 S.Ct. the eleventh amendment frivolous or malicious.” 1831; against the state. Edelman v. Jor “Dismissals at 1347, 1355, dan, grounds made 415 U.S. on these are often sua List, (1974); that officials Taylor v. Cir.1989); right process by to due U.S. Const. violated XI; refusing prisoners carry “to Michigan Dеpt. per to allow amend. Will cf. — U.S. -, Police, type sonal writers over to the State Law State (a is Library.” prisoners right state have a While courts, purposes U.S.C. person meaningful not a access to the inmates *3 1983). Therefore, clаim right to the “have no constitutional use of arguable legal Lewis, is without the state typewriter.” v. 878 F.2d Sands Pugh Parish St. Tamma 1188, basis. See 7 is Clаim friv (5th Cir.1989) (claim 436, ny, 875 olous. immunity is against prosecutors with clear allegations makes Jackson also other meaning of section frivolous within the interpreted stating which could be as inde- 1915(d)). now consider individual However, none pendent claims. of these defendants. against the two named claims potential claims has even merit. 1, 3, 5, 6, and 8 We construe claims of the thаt maintenance CONCLUSION amounted to cruel and conditions described judgment The district court’s is reversed punishment. Jackson sеems to unusual 1, 3, 5, 6 and and is affirmed as handling pol unsanitary food contend as to claims 7 and 9. We also affirm water at the “сould lead luted the district court’s as to the State death, type[s]” all of diseases. See [and] of Arizona. We remand thе case for is- Chapman, 452 U.S. Rhodes v. Neitzke v. 2392, 2398-99, 337, 345-46, 101 — -, Williams, U.S. (1981) (discussing L.Ed.2d (1989). 104 L.Ed.2d 338 unusual”). most “cruel and And while allegations highly either seem part, part AFFIRMED REVERSED greatly exaggerated, if the improbable or and REMANDED. ‍‌‌‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​‍threatening as prison conditions were safety health and as he сoncurring: Judge, they and “if were the result deliberate Williams, offi

indifference on I would affirm but Neitzke v. — cials, alleged arguably 1827, 1830-31, has U.S. -, then [Jackson] punishment unusual under the cruel and requires the result that Eighth Amendment.” Franklin v. State we reach. Cir. Oregon, 662 F.2d remand, may Uрon the district court dis- 1981). claims are not frivolous for These complaint for failure to state a miss the 1915(d).

purposes оf section 12(b)(6). The re- claim under Jeopardy Threat- 2 is “Double ... requires sult will the same but Neitzke occurring ening-as-Slaves ... Still ... standаrd when the dis- a more restricted Threatening to caused violents Reactions upon frivolousness missal based totally inсom- This claim is from convicts.” Supreme 28 U.S.C. § without prehensible and therefore Court held Neitzke: in law. question presented The whether pauperis which complaint filed in forma In claims 4 and Rule claim under Federal fails to state a slippery prison floors and plains about the 12(b)(6)is automatical- of Civil Procedure These served for meals. the dried beans meaning of 28 ly frivolous even an claims do not state answer, hold, we punishment. and unusual for cruel “[T]he is no. mandate comfortable does not Constitution Rhodes, U.S. at 101 Neitzke prisons.” (1989). S.Ct. at therefore, join the compelled I am

majority. HANSEN, Plaintiff-Appellant,

Kathleen BLACK, al., et

Ronald L.

Defendants-Appellees. Court

United States

Ninth Circuit. 7, 1989 *. submis- this case finds