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[NOT FOR PUBLICATION]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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