92 F.3d 1192 (9th Cir. 1996), 95-16125, Hoke v. Symington

Docket Nº:95-16125.
Citation:92 F.3d 1192
Party Name:Robert Allen HOKE, Plaintiff-Appellant, v. Fife SYMINGTON, Governor of the State of Arizona; Grant Woods, Attorney General; Samuel A. Lewis, Director, Defendants-Appellees.
Case Date:August 05, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1192

92 F.3d 1192 (9th Cir. 1996)

Robert Allen HOKE, Plaintiff-Appellant,

v.

Fife SYMINGTON, Governor of the State of Arizona; Grant Woods, Attorney General; Samuel A. Lewis, Director, Defendants-Appellees.

No. 95-16125.

United States Court of Appeals, Ninth Circuit

August 5, 1996

Submitted July 29, 1996. [*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of Arizona, No. CV-95-00612-RGS; Roger G. Strand, District Judge, Presiding.

D.Ariz.

AFFIRMED.

Before: HUG, Chief Judge; SCHROEDER and TASHIMA, Circuit Judges.

Robert Allen Hoke, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1985(3) action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review the district court's dismissal before service of process for abuse of discretion. See Denton v. Hernandez, 504 U.S. 25, 33 (1992); Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir.1995). The district court may dismiss an in forma pauperis complaint as frivolous if it "lacks an arguable basis in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

In his complaint, Hoke alleged that defendants conspired to violate the constitutional rights of Arizona state prisoners. Section 1985(3) applies only where there is some racial or other class-based discriminatory animus behind the actions of the conspirators. Griffin v. Breckenridge, 403 U.S. 88 (1971). To state a claim under section 1985(3) for a non-race-based class, "we require 'either that the courts have designated the class in question a suspect or quasi-suspect classification requiring more exacting scrutiny or that Congress has indicated through legislation that the class required special protection.' " Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir.1992) (quoting Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir.1985) (per curiam)).

Because prisoners have not been so classified by either the courts or Congress, we conclude that Hoke's allegations did not have an arguable basis in law or fact. See Neitzke, 490 U.S. at 325; see also Sever, 978 F.2d at 1538 (holding that individuals who wish to...

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