Nolan Edward Klein, Plaintiff-appellant, v. Steven P. Elliott; Timothy G. Randolph; City of Sparks;mark Mccartt, Defendants-appellees, 15 F.3d 1086 (9th Cir. 1994)

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U.S. Court of Appeals for the Ninth Circuit - 15 F.3d 1086 (9th Cir. 1994) Submitted Dec. 20, 1993. *Decided Jan. 6, 1994

Before: SNEED, NOONAN, and TROTT, Circuit Judges.

MEMORANDUM^**

Nolan Edward Klein, a Nevada state prisoner, appeals pro se the district court's order dismissing Klein's civil rights complaint with prejudice as frivolous pursuant to 28 U.S.C. § 1915(d). The district court dismissed Klein's complaint sua sponte prior to service of process after requiring Klein to pay a partial filing fee. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

" [A] district court may not sua sponte dismiss an action as frivolous under section 1915(d) after the plaintiff has paid a partial filing fee." Butler v. Leen, 4 F.3d 772, 773 (9th Cir. 1993) (per curiam). Thus, the district court should not have dismissed Klein's complaint with prejudice prior to service of process. See id.

REVERSED.

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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