Unpublished Disposition, 935 F.2d 273 (9th Cir. 1991)

MEMORANDUM^** 

Edward Dianmontiney, a California state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action as frivolous under 28 U.S.C. § 1915(d). We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we affirm.

A district court may dismiss an in forma pauperis action sua sponte if the action is frivolous or malicious. 28 U.S.C. § 1915(d). An action is frivolous if it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640.

In his complaint, Dianmontiney alleged the following: "Defendants are committing racial discrimination and prejudice by forcing American Indian inmates, who are categorized and ethnically classified as American Indians, into cell living with white inmates. That this forced inter-racial housing deprives the plaintiff of his 1st, 8th, and 14th amendment rights...." In his response to the magistrate's findings and on appeal, Dianmontiney concedes that racial segregation is prohibited by the Constitution but argues that his equal protection rights have been violated because Native American prisoners, who are housed with white prisoners, are the only ethnic group to be integrated. He alleges that other ethnic groups, such as blacks or hispanics, are not forced to integrate.

"Racial segregation, which is unconstitutional outside the prison, is unconstitutional within prisons, save for 'the necessities of prison security and discipline.' " Cruz v. Beto, 405 U.S. 319, 321 (1972) (quoting Lee v. Washington, 390 U.S. 333, 334 (1968) (per curiam)). Thus, Dianmontiney's claim that he is is entitled to segregated housing is frivolous.

AFFIRMED.