53 F. 3d 327 - Cooper v. Shortt et al.

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. Sec. 1915(d). The magistrate judge construed the complaint as attempting to state a claim under 42 U.S.C. Sec. 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 court judge accepted the magistrate's recommendation and dismissed the complaint. This appeal ensued.

A district court may dismiss a complaint pursuant to Sec. 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, Sec. 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 Sec. 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. Sec. 1982 (race), and the Fair Housing Act, 42 U.S.C. Sec. 3604 (race and handicap). Both statutes permit an aggrieved person to sue private parties. See, e.g., City of Memphis v. Greene, 451 U.S. 100, 120 (1981) (Sec. 1982); Curtis v. Loether, 415 U.S. 189, 190 (1974) (Sec. 3604). Whether Cooper's sparse, rather conclusory allegations ultimately will support claims based on Sec. 1982 and Sec. 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