*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 1/3/96

TENTH CIRCUIT

RANDALL ALLEN RUST, 

Plaintiff - Appellant, No. 95-1307

v. (D. Colorado)

SGT. FERRO, (D.C. No. 95-S-465)

Defendant - Appellee.

 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and LOGAN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

1

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Randall Allen Rust filed an action under 42 U.S.C. § 1983 against Sergeant Ferro

in his capacity as an Arapahoe County deputy sheriff. The district court dismissed before
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service pursuant to 28 U.S.C. § 1915(d). Rust appeals on procedural and substantive

grounds. 

A court may dismiss an in forma pauperis case “if satisfied that the action is

frivolous.” 28 U.S.C. § 1915(d); Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991). 

A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). This determination may be made “sua sponte before

the defendant has even been asked to file an answer.” Denton v. Hernandez, 504 U.S. 25,

32 (1992). “[W]henever a plaintiff states an arguable claim for relief, dismissal for

frivolousness under § 1915(d) is improper, even if the legal basis underlying the claim

ultimately proves incorrect.” Hall, 935 F.2d at 1109 (quoting McKinney v. Oklahoma,

925 F.2d 363, 365 (10th Cir. 1991)); see Abbott v. McCotter, 13 F.3d 1439, 1441 (10th

Cir. 1994). Liberally construing pro se pleadings, Haines v. Kerner, 404 U.S. 519, 520

(1972), we review a § 1915(d) dismissal for abuse of discretion. Denton, 504 U.S. at 33.

Rust, a Colorado state prisoner at the Arkansas Correctional Facility, filed a

complaint alleging false imprisonment. He claimed that he was held four days “against

his will after bond had been posted,” in violation of the Eighth Amendment’s prohibition

against cruel and unusual punishment. Complaint at 2. On appeal, Rust contends that he

was falsely imprisoned in violation of the Fourth, Fifth, and Fourteenth Amendments. 

The district court found Rust’s complaint vague, conclusory, and inarguable and

accordingly dismissed the complaint. We respectfully disagree because although the
2The Fourteenth Amendment, rather than the Eighth Amendment, protects the

rights of pretrial detainees. See, e.g., Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979);

Garcia v. S.L. County, 768 F.2d 303, 307 (10th Cir. 1985); Harris v. Angelina County,

Tex., 31 F.3d 331, 334 (5th Cir. 1994).

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claim stated in the complaint may be deemed ambiguous and mislabeled, it is not

inarguable.

Rust alleged that bond was set on May 3, 1994, posted on May 5, 1994, and signed

by Judge Dana Murray on May 6, 1994. He claimed that he repeatedly asked Ferro about

his bond status and that Ferro continually responded that no bond had been posted. He

also alleged that on one occasion Ferro said, “This is my fucking jail and I’ll let you go

when I feel like it.” Complaint at 3. Finally, Rust stated that on May 9, 1994, Judge

Murray asked why Rust was still being held since the bond had been posted days before. 

Construing the pro se plaintiff’s complaint liberally, Haines, 404 U.S. at 520, we find that

Rust stated an arguable claim of unlawful detainment despite mislabeling his alleged

constitutional violation as an Eighth Amendment violation, rather than a liberty interest

protected by the Fourteenth Amendment.2

To recover on his § 1983 claim against Ferro, Rust must show that Ferro acted

under state law and deprived him of a right secured by the United States Constitution. 

West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981)

(overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986)). We

express no opinion as to the ultimate merit of such a claim here, only noting that it is not
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inarguable. See, e.g., Baker v. McCollan, 443 U.S. 137, 145 (1979); Poe v. Ullman, 367

U.S. 497, 543 (1961) (Harlan, J., dissenting). Likewise, contrary to Ferro’s argument on

appeal, it is not inarguable, in view of the language quoted above, that Rust’s complaint

implicates Ferro personally, thus rendering Eleventh Amendment immunity inapplicable.

For the foregoing reasons, the judgment of the district court is REVERSED and

REMANDED to the district court for further proceedings consistent with this order and

judgment. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge