Cooper v. Shortt ( 1995 )

USCA1 Opinion

          May 8, 1995
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 94-2298 

                                    ZYRONE COOPER,

                                Plaintiff, Appellant,

                                          v.

                                TERRY SHORTT, 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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            Zyrone Cooper on brief pro se.
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            Neil  S.  Shankman   and  Shankman  &   Associates  on  brief  for
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        appellees.


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                      Per  Curiam.    Appellant  Zyrone  Cooper  filed  a
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            complaint in  Maine's federal  district court  concerning the

            conditions  of his tenancy in the Glenridge Apartments, a 24-

            apartment complex which receives federal funds.  Cooper  sued

            Terry Shortt, the site manager, Ray McNeal, a  representative

            of Realty Resources Management (the agent for Glenridge), and

            three tenants (collectively, "appellees").

                      Cooper  alleged that  the  appellees  conspired  to

            prohibit him  from  the  full  enjoyment  of  his  apartment.

            Specifically,  he  stated  that  the tenants  made  excessive

            noise.  When Cooper complained to Shortt, Shortt called him a

            "nigger"  and refused to believe Cooper's story.  Shortt also

            threatened to  evict Cooper, refused  to fix his  toilet, and

            entered his  apartment when  Cooper  was not  there.   Cooper

            claims  that the actions of  the appellees were  based on his

            race, mental handicap and age.

                      The court  granted  IFP  status  to  Cooper  but  a

            magistrate  judge recommended the  dismissal of the complaint

            under 28  U.S.C.   1915(d).   The magistrate  judge construed

            the  complaint as attempting to state a claim under 42 U.S.C.

              1983.1   He then found that  the appellees were not  acting

            under  color of  state  law.   Thus,  he concluded  that  the

            complaint lacked any  arguable factual basis.   The  district







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            1.  Cooper  only  cited  18 U.S.C.      241  and  242 in  the
            complaint.  "Generally, a private citizen has no authority to
            initiate a federal criminal  prosecution."  Cok v. Cosentino,
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            876 F.2d 1, 2 (1st Cir. 1989) (per curiam).  Also,    241 and
            242 do not provide for a civil action for damages.  Id.
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            court  judge accepted  the  magistrate's  recommendation  and

            dismissed the complaint.  This appeal ensued.

                      A district  court may dismiss  a complaint pursuant

            to    1915(d) if "the action is  frivolous or malicious."  An

            action is frivolous "where it  lacks an arguable basis either

            in law or  in fact."  Neitzke v. Williams,  490 U.S. 319, 325
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            (1989).  Thus,   1915(d)

                      accords judges not only the  authority to
                      dismiss  a claim based on an indisputably
                      meritless  legal  theory,  but  also  the
                      unusual power  to pierce the veil  of the
                      complaint's   factual   allegations   and
                      dismiss   those   claims  whose   factual
                      contentions    are   clearly    baseless.
                      Examples of the  former class are  claims
                      against  which  it   is  clear  that  the
                      defendants  are  immune  from   suit  and
                      claims   of   infringement  of   a  legal
                      interest which clearly  does not exist. .
                      . .

            Id. at 327 (citation omitted).
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                      While we agree with  the district court that Cooper

            cannot  state  a     1983 claim,  his  complaint  nonetheless

            concerns   neither   "clearly    baseless"   facts   nor   an

            "undisputably meritless legal theory."   Cooper alleges  that

            appellees  discriminated against  him based  on his  race and

            because he is  handicapped.  Discrimination in  the rental of

            property  is prohibited by the  Civil Rights Act  of 1866, 42

            U.S.C.    1982 (race), and the  Fair Housing Act, 42 U.S.C.  

            3604 (race and handicap).  Both statutes permit  an aggrieved

            person to sue private parties.  See, e.g., City of Memphis v.
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            Greene, 451 U.S. 100, 120 (1981) (  1982); Curtis v. Loether,
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            415  U.S. 189, 190 (1974) (  3604).  Whether Cooper's sparse,

            rather conclusory allegations  ultimately will support claims

            based on   1982 and   3604 is a matter on which we express no

            opinion.   We only hold  that, giving Cooper  "the benefit of

            all  the suggested facts and . . . indulg[ing] all reasonable

            inferences  in  his  favor," the  complaint  should  proceed.

            Johnson v.  Rodriguez,  943 F.2d  104, 107  (1st Cir.  1991),
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            cert. denied, 112 S.Ct. 948 (1992).  See also Street v. Fair,
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            918 F.2d 269, 273 (1st Cir. 1990) (per curiam) (a complaint's

            factual deficiencies do not make it frivolous).  

                      We therefore  vacate the  judgment of the  district
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            court  and   remand  the   matter  for   further  proceedings
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            consistent with this opinion.2

















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            2.  We  appreciate  that the  complaint  mentions  neither 42
            U.S.C.    1982 nor  42 U.S.C.    3604;  but, as  the district
            court  recognized,  the complaint  was filed  pro se  and the
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            court, therefore,  had to look  beyond its face  to determine
            whether  it was  frivolous.   Here, the  judge looked  in the
            wrong direction.

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