Unpublished Disposition, 936 F.2d 576 (9th Cir. 1991)

MEMORANDUM^** 

David M. Bandstra, an Arizona 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).¹  Bandstra contends that he was deprived of his first and fourteenth amendment right to exercise his religious beliefs. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and reverse.

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 either in law or fact." Id. Before dismissing a complaint, the district court must give a pro se litigant an opportunity to amend, unless it is absolutely clear that the complaint's deficiencies cannot be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

To state a claim under section 1983, the plaintiff must allege facts showing that a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the United States Constitution. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

Here, Bandstra claims that he was improperly denied visitation and consultation privileges with an out of state minister. The district court found that because Bandstra did not allege a denial of the right to practice his religion or that pastors within the prison were inadequate, Bandstra merely alleged a denial of visitation, requiring dismissal of his complaint. Our examination of the record reveals that Bandstra was not extended an opportunity to amend his complaint to assert a potential first amendment violation. Because it is not absolutely clear that Bandstra could not amend his complaint to allege a first amendment violation, the district court erred by not allowing him leave to amend. See Noll, 809 F.2d at 1448-49. Accordingly, we remand the matter to the district court to give Bandstra an opportunity to amend his complaint.

Bandstra also contends that his eighth and fourteenth amendment right to be free from cruel and unusual punishment was violated when he was denied contact visitation in retaliation for his participation in previous litigation involving prison authorities. We find that this alleged retaliation states a cause of action.

An inmate has a first amendment right to participate in civil rights litigation. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Moreover, an inmate can state a first amendment claim against prison officials for retaliating against him for bringing his own action or for assisting other inmates with their litigation. Id. at 531-32. To state a section 1983 claim of retaliation for participation in civil rights litigation, an inmate must "allege that the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Id. at 532

Here, Bandstra has alleged that the prison authorities' denial of visitation privileges was in retaliation for his participation in civil rights litigation and was without "valid or logical penological or security interest." This allegation sufficiently states a cause of action for retaliation and therefore summary dismissal as to this claim was improper. Accordingly, we remand to the district court for further proceedings on Bandstra's claim of retaliation.

REVERSED AND REMANDED.