OpenJurist

876 F2d 897 Morales v. Soto Fci Fci Fci

876 F.2d 897

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Domingo Martinez MORALES, Plaintiff/Appellant,
v.
Juan SOTO, Lt., FCI, Safford, Arizona, Officer Lopez, FCI,
Safford, Arizona, Officer Polaha, FCI, Safford,
Arizona, Defendants/Appellees.

No. 87-2701.

United States Court of Appeals, Ninth Circuit.

Submitted April 27, 1989.
Decided June 9, 1989.*

Before BARNES, WALLACE, and SKOPIL, Circuit Judges.

1

MEMORANDUM**

2

Domingo Martinez Morales appeals the district court's dismissal of his action seeking damages for an alleged assault by a prison guard. The district court instructed Morales to amend his complaint in another pending action to include the assault claim. Morales contends the district court erred in concluding that his assault claim should be joined with his prior action for property loss. We agree and reverse.

DISCUSSION

3

A district court may dismiss a plaintiff's claims filed in former pauperis if "satisfied that the action is frivolous or malicious." 28 U.S.C. Sec. 1915(d) (1982). Redundant claims may also be dismissed under section 1915(d). Hernandez v. Denton, 861 F.2d 1421, 1426 (9th Cir.1988).

4

The two actions filed by Morales, however, raise distinct issues arising from different conduct. Here, Morales alleges assault; in his other action Morales alleges the negligent loss of property. Morales' assault claim has an arguable basis in law and fact, and is not redundant of the property loss action. Accordingly, the dismissal of Morales's action is reversed.

5

REVERSED.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3