129 F3d 125

129 F.3d 125

Lewis Edward FRANKLIN, Plaintiff-Appellant,
v.
STATE OF OREGON; City of Portland; Dawn D. Urban,
OPS/Youth Gang Task Force Officer # 1560-10/# 14012; Pat
Campbell, OPS/Youth Gang Task Force Force Officer #
1551-10/# 14781; John E. Downey, Robert W. Miller; Steve
Hollingsworth; Pete Poulos; Glen Campbell; Bob Foster;
Keith Killian; John Salle, Bill Tolle; Larry Craig; Gregg
Willeford; Jerry Tate; Jim O'Leary; Bill Brooks, Riz
Bradshaw; Bob Songer; Pat O'Conner; Charles Mathews;
Fred Pearce; Leron Howland; Dean L. Renfrow; Dan Noelle;
Matt Lockett; Don Eilert; Bob King, Scott Upham,
Defendants-Appellees.

No. 96-36230.

United States Court of Appeals, Ninth Circuit.

Submitted November 4, 1997.**
Decided Nov. 6, 1997.

Appeal from the United States District Court for the District of Oregon, No. CV-92-0015-HJF; Helen J. Frye, District Judge, Presiding.

Before: HUG, Chief Judge, PREGERSON and BEEZER, Circuit Judges.

1

MEMORANDUM*

2

Federal prisoner Lewis Edward Franklin ("Franklin") appeals the district court's dismissal of his complaint against City of Portland, State of Oregon, and federal officials (collectively "Defendants") for alleged violations of 42 U.S.C. §§ 1981, 1983 and 1986. Franklin's amended complaint alleges that Defendants, in conjunction with Oregon's Youth Gang Strike Force, targeted individuals on account of their race, and referred black violators to federal court, where sentences and time served are longer than those in the state court system. The district court dismissed the amended complaint because Franklin failed to state a claim. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we affirm.

3

A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Cohen v. Stratosphere Corp., 115 F.3d 695, 700 (9th Cir.1997). A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.1997). Additionally, where the party is proceeding pro se, his allegations must be viewed under an even less stringent standard. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, "a pleading will not be sufficient to state a claim under the Civil Rights Act if the allegations are mere conclusions." Sherman v. Yakahi, 549 F.2d 1287, 1289 (9th Cir.1977).

4

To prove a selective prosecution claim, the claimant must show "that the prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose." United States v. Armstrong, 116 S.Ct. 1480, 1487 (1996); United States v. Bourgeois, 964 F.2d 935, 939 (9th Cir.). Specifically, the complainant must show that (1) others similarly situated have not been prosecuted for conduct similar to his, and (2) the government's discriminatory selection was based on impermissible grounds such as race, religion, or exercise of First Amendment rights. Wayte v. United States, 470 U.S. 598, 604 (1985); see also Armstrong, 116 S.Ct. at 1487 ("To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.").

5

This court, in allowing Franklin to replead his equal protection claims under 42 U.S.C. §§ 1983, 1985, and 1986, explicitly informed Franklin that

6

to state a claim for selective prosecution or enforcement, he must allege specific facts that (1) defendants referred Blacks to federal court for prosecution and more severe sentences when persons of other races engaged in the same conduct were treated more leniently; or that Blacks were otherwise investigated or arrested when others engaged in the same conduct were not....

7

Franklin v. Oregon, Nos. CA 94-35364, CA 94-35768, 1996 WL 136911, at * 2 (9th Cir. Mar. 26, 1996) (unpublished disposition) (emphasis added). Furthermore, Franklin was warned that he was "entitled on remand to only one additional opportunity." Id. Despite this admonishment, Franklin's amended complaint sets forth no specific facts that similarly situated individuals of a different race, arrested for the sale of five grams of crack, were escaping federal prosecution. Instead, he makes overly broad and conclusory allegations such as, "African-Americans were prosecuted for firearms and drugs violations while Caucasians or Europeans went to state court." Complaint at 11. These allegations are insufficient to establish that similarly situated persons were not prosecuted in a similar manner. United States v. Turner, 104 F.3d 1180, 1184-85 (9th Cir.1997), cert. denied, 117 S.Ct. 1566 (data suggesting more African Americans are prosecuted federally does "not advance a defense of selective prosecution without further consideration of the sociological factors affecting the pattern of crime and without a showing that similarly situated defendants of other races had been left unprosecuted").

8

Because Franklin has failed to meet the pleading requirements for a claim of selective prosecution, his complaint was properly dismissed.

9

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 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 9th Cir. R. 36-3