Unpublished Disposition, 940 F.2d 668 (9th Cir. 1991)

MEMORANDUM^** 

Dennis Nelson Fixel, a Nevada state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action pursuant to Fed. R. Civ. P. 41(b) for failure to comply with a court order to file an amended complaint. We review for an abuse of discretion, McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991), and we vacate and remand.

In his complaint, Fixel alleged various civil rights violations, including loss of good time credits as a result of prison disciplinary proceedings, confiscation of personal property, denial of access to the law library, inadequate food, improper disciplinary action, and deliberate indifference to his serious medical needs. The district court dismissed the complaint because some claims apparently were either barred by the statute of limitations or frivolous, and gave him twenty days to file an amended complaint. After Fixel failed to file an amended complaint within the time allotted by the district court, the district court dismissed the entire action for failure to prosecute.

A district court may dismiss an action sua sponte under Rule 41(b) before service of process for an unreasonable failure to prosecute. Id. A refusal to file an amended complaint is not an unreasonable failure to prosecute if the first complaint was dismissed erroneously. Id.

Here, the district court sua sponte dismissed Fixel's original complaint before service of process, which we construe as a dismissal under 28 U.S.C. § 1915(d). See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). A district court may dismiss a complaint under section 1915(d) if it is frivolous. A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). In civil rights cases where the plaintiff appears pro se, the court must construe pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640 (citing Neitzke, 490 U.S. at 329-30).

Here, we cannot say from the face of Fixel's complaint that his claims lack an arguable basis in law or in fact. Furthermore, whether a claim is barred by the statute of limitations is a defense that must be raised by the defendants. See Fed. R. Civ. P. 8(c); Nicholson v. Board of Education Torrance Unified School Dist., 682 F.2d 858, 862 (9th Cir. 1982). Because Fixel's claims are not wholly frivolous, the district court erred in dismissing the action for failure to prosecute. McKeever, 932 F.2d at 798. Moreover, because Fixel has arguable claims, he is entitled to issuance and service of process. See Jackson, 885 F.2d at 640.¹ 

VACATED AND REMANDED.