Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1991)

MEMORANDUM^** 

Minor Moody, an Arizona state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action against prison authorities. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm.

A court's sua sponte dismissal of a complaint before issuance and service of process upon the defendants is construed as frivolous under 28 U.S.C. § 1915(d). Jackson, 885 F.2d at 640. A frivolous claim is one which lacks an arguable basis in either law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A district court must afford a pro se plaintiff notice of the deficiencies of the complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

Moody contends that prison authorities deprived him of adequate medical care by refusing to operate on his throat. This contention lacks merit.

"In order to state a cognizable [civil rights] claim, a prisoner must allege acts or admissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106. The indifference to medical needs must be substantial; inadequate treatment due to negligence or inadvertence, or differences in judgment between an inmate and medical personnel does not constitute cruel and unusual punishment. Estelle, 429 U.S. at 106; Shields v. Kunkel, 442 F.2d 409, 410 (9th Cir. 1971).

Here, Moody attached to his complaint documents showing he was examined by a physician who determined that Moody did not require surgery. Thus, Moody's allegations amount only to a difference of opinion as to the proper treatment of his medical needs and fail to state a constitutional violation. See Estelle, 429 U.S. at 106; Shields, 442 F.2d at 410. Because Moody's claim fails to state an arguable basis in law or in fact, the district court properly dismissed the action.

AFFIRMED.