Moody v. City of Hayward, 89-16174

• Decision Date: 16 September 1990
• Docket Number: No. 89-16174,89-16174
• Citation: 914 F.2d 263
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Cordell MOODY, Plaintiff-Appellant, v. CITY OF HAYWARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 263

914 F.2d 263

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Cordell MOODY, Plaintiff-Appellant, v. CITY OF HAYWARD, Defendant-Appellee.

No. 89-16174.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 16, 1990. ^*

Decided Sept. 21, 1990.

Appeal from the United States District Court for the Northern District of California; D. Lowell Jensen, District Judge, Presiding.

N.D.Cal.

AFFIRMED.

Before GOODWIN, Chief Judge, and HUG and BEEZER, Circuit Judges.

MEMORANDUM ^**

Cordell Moody, a Texas state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. Sec. 1983 complaint without leave to amend. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and review de novo. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989). We affirm.

The district court dismissed Moody's complaint before issuing and serving process upon the defendants. ¹ We therefore construe the dismissal as one under 28 U.S.C. Sec. 1915(d). Jackson, 885 F.2d at 640.

Under section 1915(d), a district court may dismiss frivolous in forma pauperis complaints sua sponte. 28 U.S.C. Sec. 1915(d); Jackson, 885 F.2d at 640. A frivolous claim is one which lacks an arguable basis in either law or fact. Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989). Unless it is absolutely clear that the deficiencies of a complaint cannot be cured by amendment, the district court must give a pro se litigant notice of the deficiencies of the complaint and an opportunity to amend before dismissal. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).

Section 1983 requires a claimant to prove (1) that a person acting under color of state law (2) committed an act that deprived the claimant of some right protected by the Constitution or laws of the United States. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir.1988). A city may be held liable under section 1983 for the constitutional violations of its police officers only if the violations resulted from a municipal "policy or custom." Monell v. Dept. of Social Services, 436 U.S. 658, 694 (1978); Perez v. Simmons, 859 F.2d 1411, 1417 (9th Cir.1988).

Moody contends that his fourth amendment rights were violated when (1) he was arrested by an Oakland Bart Station Security Officer without probable cause and (2) the security officer conducted an illegal search of his briefcase. The district court gave Moody four chances to amend his complaint before finally dismissing it without leave to amend. Further, the district court twice advised Moody of the specific information required in order to cure the deficiencies of the complaint. Moody has failed to provide any of the necessary information. He has not named any state actor as a defendant and cannot maintain his section 1983 action without the necessary state actor. See Leer, 844 F.2d at 632-33. Moreover, he has failed to allege how the only named defendant, the City of Hayward, was involved in these violations and whether the alleged violations were the result of a municipal policy or custom. See Monell, 436 U.S. at 694. Because Moody has been given ample opportunities to amend his complaint and has failed to do so, the district court did not err in dismissing the complaint under section 1915(d). See Noll, 809 F.2d at 1448.

AFFIRMED.

* The panel unanimously finds this...