
USCA1 Opinion

	




          May 8, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2298                                     ZYRONE COOPER,                                Plaintiff, Appellant,                                          v.                                TERRY SHORTT, 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.                                            ______________                                 ____________________            Zyrone Cooper on brief pro se.            _____________            Neil  S.  Shankman   and  Shankman  &   Associates  on  brief  for            __________________        ________________________        appellees.                                 ____________________                                 ____________________                      Per  Curiam.    Appellant  Zyrone  Cooper  filed  a                      ___________            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                                            ____________________            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,                                                        ___    _________            876 F.2d 1, 2 (1st Cir. 1989) (per curiam).  Also,    241 and            242 do not provide for a civil action for damages.  Id.                                                                ___            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                                  _______    ________            (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).            ___                      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.                                            ___  ____  _______________                                         -3-            Greene, 451 U.S. 100, 120 (1981) (  1982); Curtis v. Loether,            ______                                     ______    _______            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),            _______     _________            cert. denied, 112 S.Ct. 948 (1992).  See also Street v. Fair,            ____________                         ___ ____ ______    ____            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                                    ______            court  and   remand  the   matter  for   further  proceedings                         ______            consistent with this opinion.2                                            ____________________            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                                                          ___ __            court, therefore,  had to look  beyond its face  to determine            whether  it was  frivolous.   Here, the  judge looked  in the            wrong direction.                                         -4-
