Lawrence Broadnax, Plaintiff-appellant, v. K. Carney; Brad Coleman; Bud Snider, Defendants-appellees, 36 F.3d 1102 (9th Cir. 1994)

MEMORANDUM^** 

California state prisoner Lawrence Broadnax appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action against prison food service personnel, alleging his civil rights were violated by the temporary use of manual dishwashing methods. A court's sua sponte dismissal of a complaint before issuance and service of process upon the defendants is construed as a dismissal as frivolous under 28 U.S.C. § 1915(d). Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). We review for an abuse of discretion, Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992).

A frivolous claim is one which lacks an arguable basis in either law or fact. Nietzke v. Williams, 490 U.S. 319, 324 (1989). Broadnax alleged that the prison's use of manual dishwashing methods, while the prison kitchen facilities were being renovated, violated his rights, and sought a temporary restraining order and monetary damages. Prison officials submitted evidence that the dishwashing methods complied with state regulations and had passed the inspection of a state safety inspector. Accordingly, the district court did not abuse its discretion in denying Broadnax's motion for a temporary restraining order, and in dismissing his complaint as frivolous. Id.

AFFIRMED.