Miller v. Kennebec County ( 1995 )

USCA1 Opinion

          May 12, 1995
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 94-1859

                                   AARON J. MILLER,

                                Plaintiff, Appellant,

                                          v.

                    KENNEBEC COUNTY SHERIFF'S DEPARTMENT, ET AL.,

                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            Aaron J. Miller on brief pro se.
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                      Per Curiam.   Aaron J. Miller  appeals pro se  from
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            the  district  court's    1915(d)  dismissal  of  his    1983

            action.  We affirm in part and reverse in part.

                      A district  court may dismiss a  complaint filed in
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            forma pauperis if "the action  is frivolous or malicious." 28
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            U.S.C.   1915(d).  A claim is frivolous within the meaning of

               1915(d) if it is "based on an indisputably meritless legal

            theory," lacking "even an arguable basis in  law." Neitzke v.
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            Williams,  490 U.S. 319, 327-28  (1989).  Failure  to state a
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            claim under Fed.  R. Civ.  P. 12(b)(6)  does not  necessarily

            render a complaint  frivolous for purposes of    1915(d). Id.
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            at 331.   A complaint  is also subject  to dismissal  under  

            1915(d) if  it is "factually frivolous," i.e.,  "if the facts
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            alleged  are  'clearly  baseless,'  a  category  encompassing

            allegations   that   are    'fanciful,'   'fantastic,'    and

            'delusional.'"  Denton v.  Hernandez, 112  S. Ct.  1728, 1733
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            (1992)  (citations omitted).   A  district court's    1915(d)

            dismissal is reviewed for abuse of discretion. Id. at 1734.
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                      Due Process Claim
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                      "When   a  deprivation  of   property  interest  is

            occasioned  by  random  and  unauthorized  conduct  by  state

            officials, . . . the Court has repeatedly emphasized that the

            due process inquiry is  limited to the issue of  the adequacy

            of postdeprivation remedies provided by the state."   Lowe v.
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            Scott, 959 F.2d  323, 340 (1st Cir. 1992).   In reliance upon
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            that  rule of law, the Magistrate Judge to whom the complaint

            was  referred recommended dismissal  of Miller's  due process

            claim.     The   Magistrate   Judge's  Recommended   Decision

            specifically  noted  that  "an  adequate  remedy  does  exist

            because  Plaintiff can  file a  state court  suit to  recover

            damages for the loss of his property." 

                      In   his  objection   to  the   Magistrate  Judge's

            Recommended  Decision,  Miller  failed  to  contest  that  an

            adequate  post-deprivation   remedy  exists.     Instead,  he

            disputed  the  Magistrate   Judge's  implicit  finding   that

            Miller's deprivation  of property was based  upon "random and

            unauthorized"   conduct.     Miller  claimed   that   he  was

            "challenging  the Sheriff's Department ordinances and customs

            allowing disposal of property without notice or a hearing, or

            any procedures as to  how to reclaim said property."   Miller

            failed, however,  to  identify the  specific "ordinances  and

            customs"  to  which  he  referred.     Nor  do  the   factual

            allegations in Miller's complaint  support his claim that the

            conduct was not "random and unauthorized."  G i v e n   t h e

            Magistrate  Judge's Recommended Decision  notifying Miller of

            the  deficiencies  of his  due  process  claim, and  Miller's

            failure to correct those inadequacies, the district court did

            not abuse  its discretion in dismissing  Miller's due process

            claim pursuant to   1915(d).   See Purvis v. Ponte,  929 F.2d
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            822, 826-27 (1st Cir. 1991) (affirming   1915(d) dismissal of



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            complaint  for failure  to state  a claim  where magistrate's

            report notified  plaintiff  of complaint's  deficiencies  and

            plaintiff failed to cure them).

                      Fourth Amendment Claim
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                      The Magistrate Judge's Recommended Decision did not

            address  Miller's Fourth  Amendment  claim.   Therefore,  the

            dismissal was proper only  if Miller's Fourth Amendment claim

            was  based  upon an  "indisputably  meritless  legal theory,"

            lacking "even an arguable basis in law," Neitzke, 490 U.S. at
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            327-28, or was based upon "fantastic" or "delusional" factual

            allegations.  Denton, 112 S. Ct. at 1733.
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                      The complaint alleges that defendants, acting under

            color  of state  law, searched Miller's  home and  seized his

            property under authority of a  warrant that was not supported

            by probable cause.   These  facts, if proved,  could state  a

            valid  Fourth  Amendment  claim.   The  allegation  that  the

            warrant was issued by a Justice of  the Peace does not render

            Miller's  legal theory  baseless.   "Judicial  approval of  a

            warrant  cannot  serve  as an  absolute  bar  to  the    1983

            liability of the officer who obtained the warrant." Briggs v.
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            Malley,  748 F.2d 715, 721  (1st Cir. 1984),  aff'd, 475 U.S.
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            335 (1986).

                      Since the district court failed to address Miller's

            Fourth Amendment claim, and since that claim is not meritless

            on its face, we  vacate that portion of the  dismissal order.



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            We remand the  case for  the filing of  a redacted  complaint

            limited  to  the  Fourth  Amendment  claim,  for  service  of

            process,  and   for  further  proceedings   not  inconsistent

            herewith.

                      Affirmed in part, vacated in part, and remanded.
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