Unpublished Disposition, 911 F.2d 738 (9th Cir. 1990)

MEMORANDUM^** 

Dennis Nelson Fixel, a Nevada state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(d). Fixel's complaint alleged that (1) Nev.Rev.Stat. Sec. 193.165, the statute under which his sentence was enhanced, is unconstitutional and (2) the fifty-plus defendants are liable under section 1983 because they persisted in enforcing section 193.165 when they knew it was unconstitutional. Fixel also asserted that the police officers who arrested him used excessive force, his home was searched without a warrant, and he was not given proper medical treatment after he was arrested. We have jurisdiction under 28 U.S.C. § 1291 and review de novo. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). We affirm in part, reverse in part, and remand.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis in law or in fact." Id. A district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

Fixel has raised the constitutionality of Nev.Rev.Stat. Sec. 193.165 in a prior habeas corpus proceeding. The district court rejected his claim, and we denied Fixel's motion for a certificate of probable cause. In addition, Fixel presented the same issues to the district court in two prior civil rights actions, which the district court resolved against him. We therefore affirm the district court's dismissal as to these claims. See Jackson, 885 F.2d at 641.

In its dismissal, however, the district court did not address Fixel's assertions that the arresting officers used excessive force, that his home was searched without a warrant, and that he was denied proper medical treatment. It is unclear from the record before us whether Fixel has already litigated these issues in previous actions. We therefore reverse the district court's order and remand so that the district court may determine whether these claims have been properly alleged or previously considered.

AFFIRMED in part, REVERSED in part, and REMANDED.