USCA1 Opinion

May 12, 1995

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1859
AARON J. MILLER,
Plaintiff, Appellant,
v.
KENNEBEC COUNTY SHERIFF'S DEPARTMENT, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Selya and Boudin, Circuit Judges.
______________
____________________
Aaron J. Miller on brief pro se.

_______________

____________________
____________________

Per Curiam.
__________
the

district

action.

court's

Aaron J. Miller
1915(d)

appeals pro se
___ __

dismissal

of

his

from
1983

We affirm in part and reverse in part.

A district

court may dismiss a

complaint filed in

__
forma pauperis if "the action
_____ ________
U.S.C.

1915(d).

is frivolous or malicious." 28

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
Williams,
________

490 U.S. 319, 327-28

claim under Fed.

R. Civ.

render a complaint
at 331.

alleged

is also subject

are

'clearly
that

'delusional.'"

baseless,'

are

necessarily
1915(d). Id.
___

to dismissal

encompassing

'fantastic,'

Hernandez, 112
_________

(citations omitted).

under

"if the facts

category

'fanciful,'

Denton v.
______

to state a

does not

it is "factually frivolous," i.e.,

____

allegations

(1992)

P. 12(b)(6)

Failure

frivolous for purposes of

A complaint

1915(d) if

(1989).

law." Neitzke v.
_______

S. Ct.

and

1728, 1733

district court's

1915(d)

dismissal is reviewed for abuse of discretion. Id. at 1734.

___
Due Process Claim
_________________

occasioned

"When

deprivation

by

random

and

of

property

unauthorized

interest

conduct

by

is

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."

Scott, 959 F.2d
_____

323, 340 (1st Cir. 1992).

Lowe v.
____

In reliance upon

-2-

that
was

rule of law, the Magistrate Judge to whom the complaint

referred recommended dismissal

claim.

The

specifically
because

Magistrate
noted

that

Plaintiff can

of Miller's

Judge's
"an

file a

due process

Recommended

adequate

remedy

state court

Decision
does

exist

suit to

recover

Magistrate

Judge's

damages for the loss of his property."

In
Recommended

his

objection

Decision,

Miller

adequate

post-deprivation

disputed

the

Magistrate

Miller's deprivation
unauthorized"
"challenging

to

the

failed

to

remedy

exists.

Judge's

implicit

of property was based

conduct.

contest

Miller

that

an

Instead,

he

finding

that

upon "random and

claimed

that

he

was

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."

failed, however,

identify the

customs"

to

to

which

he

referred.

Miller

specific "ordinances
Nor

do

the

and

factual

allegations in Miller's complaint

support his claim that the

conduct was not "random and unauthorized."

Magistrate
the

Judge's Recommended Decision

deficiencies

of his

due

process

G i v e n

t h e

notifying Miller of
claim, and

Miller's

failure to correct those inadequacies, the district court did

not abuse

its discretion in dismissing

claim pursuant to

1915(d).

Miller's due process

See Purvis v. Ponte,

___ ______
_____

822, 826-27 (1st Cir. 1991) (affirming

929 F.2d

1915(d) dismissal of

-3-

complaint

for failure

report notified

to state

plaintiff

a claim

of complaint's

where magistrate's
deficiencies

and

plaintiff failed to cure them).

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

Miller's Fourth

dismissal was proper only

was

based

upon an

Amendment

claim.

Therefore,

the

if Miller's Fourth Amendment claim

"indisputably

meritless

legal theory,"

lacking "even an arguable basis in law," Neitzke, 490 U.S. at

_______
327-28, or was based upon "fantastic" or "delusional" factual
allegations.

Denton, 112 S. Ct. at 1733.

______

The complaint alleges that defendants, acting under

color

of state

law, searched Miller's

property under authority of a

by probable cause.
valid

Fourth

These

Amendment

home and

seized his

warrant that was not supported

facts, if proved,
claim.

The

could state

allegation

that

a
the

warrant was issued by a Justice of

the Peace does not render

Miller's

"Judicial

warrant

legal theory
cannot

serve

baseless.
as an

absolute

bar

approval of
to

the

1983

liability of the officer who obtained the warrant." Briggs v.

______
Malley,
______

748 F.2d 715, 721

(1st Cir. 1984),

aff'd, 475 U.S.

_____

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

-4-

dismissal order.

We remand the
limited
process,

to
and

case for
the

Fourth
for

the filing of
Amendment

further

a redacted

claim,

proceedings

for
not

complaint
service

of

inconsistent

herewith.
Affirmed in part, vacated in part, and remanded.
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