778 F.2d 527 (9th Cir. 1985), 84-1602, Rizzo v. Dawson

Docket Nº:84-1602.
Citation:778 F.2d 527
Party Name:Patrick R. RIZZO, Plaintiff-Appellant, v. J. DAWSON, Correctional Counselor; L. Williams, Correctional Counselor; J. Stocker, Vocational Instructor; and T. Howell, Correctional Counselor, et al., Defendants-Appellees.
Case Date:December 12, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 527

778 F.2d 527 (9th Cir. 1985)

Patrick R. RIZZO, Plaintiff-Appellant,


J. DAWSON, Correctional Counselor; L. Williams,

Correctional Counselor; J. Stocker, Vocational

Instructor; and T. Howell, Correctional

Counselor, et al., Defendants-Appellees.

No. 84-1602.

United States Court of Appeals, Ninth Circuit

December 12, 1985

Argued and Submitted May 13, 1985.

Page 528

Patrick R. Rizzo, pro se.

John K. Van de Kamp, Atty. Gen., Thomas A. Brady, Kenneth C. Young, Dep. Attys. Gen., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, TANG, and FLETCHER, Circuit Judges.

Page 529

FLETCHER, Circuit Judge:

The district court dismissed the plaintiff's in forma pauperis civil rights action by a summary order before process issued. We reverse and remand.

The plaintiff's claims of fourth amendment and equal protection violations were properly dismissed as frivolous because they lacked substance in law and fact. The plaintiff's due process claims were similarly correctly dismissed because no cognizable liberty or property interest was alleged. 1 However, the plaintiff's claim of retaliation was sufficient to state a claim and dismissal of that claim at this stage of the proceedings was therefore improper.


Patrick Rizzo, a state prisoner, filed a civil rights complaint and, at the same time, requested a temporary restraining order. Plaintiff's complaint alleged wrongful reassignment out of a prison vocational course without a hearing to contest the reassignment. He claimed that a subsequent transfer to a different state prison was made easier because of the reassignment and that the transfer subjected him to inferior conditions and other hardships. Plaintiff also claimed that his transfer out of San Quentin was in retaliation for his work as a "jailhouse lawyer" assisting other inmates with habeas petitions and other federal actions. Plaintiff's final claim, that gave rise to his request for a temporary restraining order, was that transfer would endanger his health because he required a hand operation that could be performed only at San Quentin.

The district court initially withheld service of process and then, on March 4, 1983, issued an Order to Show Cause referring only to those portions of the complaint asking for injunctive relief. The court concluded that none of the alleged prospective injuries threatened immediate, irreparable, harm that would warrant the issuance of a temporary restraining order. The district court accordingly issued an order denying the plaintiff's request for a temporary restraining order and, granting plaintiff leave to proceed in forma pauperis.

However, the court expressed concern that the plaintiff might suffer irreparable harm if not operated on before his impending transfer. The court required the defendants to file a return showing cause why a preliminary injunction should not issue enjoining them to insure proper medical treatment and directed the clerk to furnish the defendants with a copy of the complaint and order to assist them in meeting this requirement.

The Attorney General filed a return and supplemental return assuring that the plaintiff's medical needs were being taken care of. Based on that assurance, the district court entered a terse order and judgment denying plaintiff's application for a temporary restraining order and dismissing the action with prejudice. The order contains no reasons for the court's decision and the plaintiff was not given an opportunity to amend.


  1. Applicable Legal Standard

    We assume that process did not issue since no summons and complaint were served on defendants pursuant to Fed.R.Civ.P. 4(a). Accordingly, we review the district court's dismissal of plaintiff's in forma pauperis action before process issued to determine whether the action was properly dismissed as frivolous under 28 U.S.C. Sec. 1915(d). Franklin v. Murphy, 745 F.2d 1221 (9th Cir.1984) (Franklin II).

    In Franklin II we affirmed the dismissal as frivolous of an in forma pauperis complaint because it had no arguable substance in law or fact. Id. at 1227. We pointed out that, "[t]he legal component of the 1915(d) frivolity standard is thus similar to the test for dismissal of pro se complaints for failure to state a claim." Id. at 1228. The Supreme Court test cited in Franklin II, allows dismissal of a pro se complaint for failure...

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