
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          May 12, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.   Aaron J. Miller  appeals pro se  from                      __________                             ___ __            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                                                                       __            forma pauperis if "the action  is frivolous or malicious." 28            _____ ________            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.                                                               _______            Williams,  490 U.S. 319, 327-28  (1989).  Failure  to state a            ________            claim under Fed.  R. Civ.  P. 12(b)(6)  does not  necessarily            render a complaint  frivolous for purposes of    1915(d). Id.                                                                      ___            at 331.   A complaint  is also subject  to dismissal  under              1915(d) if  it is "factually frivolous," i.e.,  "if the facts                                                     ____            alleged  are  'clearly  baseless,'  a  category  encompassing            allegations   that   are    'fanciful,'   'fantastic,'    and            'delusional.'"  Denton v.  Hernandez, 112  S. Ct.  1728, 1733                            ______     _________            (1992)  (citations omitted).   A  district court's    1915(d)            dismissal is reviewed for abuse of discretion. Id. at 1734.                                                           ___                      Due Process Claim                      _________________                      "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.                                                                  ____            Scott, 959 F.2d  323, 340 (1st Cir. 1992).   In reliance upon            _____                                         -2-            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                                           ___ ______    _____            822, 826-27 (1st Cir. 1991) (affirming   1915(d) dismissal of                                         -3-            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                      ______________________                      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                                                     _______            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  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.                                                                ______            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  dismissal order.                                         -4-            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.                      _______________________________________________                                         -5-
