940 F.2d 1534
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
John FRAZIER, Plaintiff-Appellant,
v.
C. GLENSOR, et al., Defendants-Appellees.
No. 91-15050.
United States Court of Appeals, Ninth Circuit.
Submitted July 29, 1991.*
Decided Aug. 2, 1991.
Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.
MEMORANDUM**
John Frazier, a California state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. Sec. 1983 action as frivolous under 28 U.S.C. Sec. 1915(d) because Frazier's complaint did not contain a short and plain statement of his claims as required by Fed.R.Civ.P. 8(a). We affirm in part, reverse in part, and remand for issuance and service of process.1
In his complaint, Frazier alleged that the defendant prison officials violated his civil rights by (1) continuing to house him near members of the Aryan Brotherhood after he warned them he had been assaulted and he was in continuing danger, which resulted in subsequent assaults, (2) injuring him while breaking up a prison riot, (3) denying him access to the law library in retaliation for his litigation activities, (4) fabricating documents to justify disciplinary action and denying him access to his file to review or challenge the documents, (5) confiscating or losing his personal property, (6) refusing to transfer him to a lower custody classification within the prison system, and (7) denying him rehabilitative programs.
The magistrate dismissed Frazier's original complaint because it contained some frivolous claims and because the other claims were vague and conclusory. Frazier filed three more complaints which asserted the same claims in more detail. The district court eventually dismissed the entire action for failure to comply with Rule 8(a) because "the statement of the [potentially cognizable claims] ... remained so vague and conclusory, imbedded among frivolous claims, that it did not suffice to give fair notice of the substance of the claims against them."
A complaint may "properly be dismissed sua sponte and before the filing of responsive pleadings only if it [is] ... frivolous." McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991) (original complaint dismissed for failure to comply with Rule 8(a); after pro se litigant failed to file amended complaint, district court dismissed for failure to prosecute; on appeal, this court reversed and remanded for service of process) (citing 28 U.S.C. Sec. 1915(d); Neitzke v. Williams, 490 U.S. 319, 325 (1989)). A complaint is frivolous if it "lacks an arguable basis in law or in fact." Neitzke, 490 U.S. at 325. In civil rights cases where the plaintiff appears pro se, the court must construe pleadings liberally and afford the plaintiff the benefit of any doubt. McKeever, 932 F.2d at 798. If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989) (citing Neitzke, 490 U.S. at 329-30).
Here, the district court properly determined that Frazier's claims concerning loss of property, his custody status, and right to rehabilitative programs are frivolous. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (loss of property does not state a section 1983 claim if state law provides adequate postdeprivation remedies); Olim v. Wakinekona, 461 U.S. 238, 245-49 (1983) (no due process right to be housed in a particular institution); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987) (no constitutional right to a custody classification); Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir.1982) (no right to rehabilitation).
We cannot say from the face of Frazier's complaint, however, that the rest of his claims are frivolous. Although the magistrate dismissed for failure to comply with Rule 8(a), all that is required are sufficient allegations to put the defendants fairly on notice of the claims against them. McKeever, 932 F.2d at 798. Because Frazier's complaint contains arguable claims, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640.2
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth 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
Frazier's notice of appeal was filed more than thirty days after the district court's entry of judgment, which was mailed to Frazier and returned to the district court as "undeliverable." Because Frazier has maintained the same address throughout the proceedings in the district court and on appeal and did "all that reasonably could be expected" to perfect his appeal, his notice of appeal is deemed timely. See United States v. Giddings, 740 F.2d 770, 771 (9th Cir.1984)
Although the magistrate gave Frazier notice of the deficiencies of his complaint and an opportunity to amend, this requirement is appropriate for dismissals for failure to state a claim under Fed.R.Civ.P. 12(b)(6). See Neitzke, 490 U.S. at 329-30; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987). In contrast, the appropriate inquiry for a sua sponte dismissal under section 1915(d) is whether the claim has an arguable basis in law or in fact. Neitzke, 490 U.S. 325; Jackson, 885 F.2d at 640