Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

MEMORANDUM^** 

Michael E. Donati appeals pro se the district court's order dismissing his 42 U.S.C. § 1983 claim as frivolous. Donati's complaint alleged that inadequate screening for communicable diseases in the Montana State Prison, and confinement of infected prisoners in close proximity to non-infected inmates as a result of overcrowding, constituted cruel and unusual punishment. We reverse.

The district court correctly held that allegations of overcrowding without more do not state a claim under the eighth amendment. See Hoptowit v. Ray, 682 F.2d 1237, 1249 (9th Cir. 1982). A plaintiff may, however, state a cognizable eighth amendment claim where he or she alleges that overcrowding results in some unconstitutional condition. See, e.g., Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987) (reversing district court's dismissal of prisoner claim that prison overcrowding caused increased stress, tension and communicable disease among inmate population), cert. denied, 108 S. Ct. 1301 (1988); see also Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (eighth amendment violation may occur as a result of overcrowded prison conditions causing increased violence, tension and psychiatric problems).

The standard for dismissing an in forma pauperis claim as frivolous under 28 U.S.C. § 15(d) is similar to that for dismissing a pro se complaint for failure to state a claim. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). A trial court may not grant a motion to dismiss for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim entitling him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A pro se litigant must be given leave to amend his or her complaint "unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), quoting, Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam). Although Donati's allegations are conclusory, it is not absolutely clear that the deficiencies in his complaint could not be cured by amendment. Akao v. Shimoda, 832 F.2d at 120.

Finally, we do not agree with the district court that Donati's complaint fails to state a claim because a complete defense is obvious from the pleadings. Franklin v. Murphy, 745 F.2d at 1228. The mere fact that the Montana State Prison has a screening procedure in place neither establishes its efficacy nor precludes the potential for close confinement of infected and non-infected prisoners during periods of overcrowding.

The order of dismissal is REVERSED and the matter REMANDED to the district court to give Donati an opportunity to amend his complaint.

REVERSED and REMANDED.