Edward E. Allen, Plaintiff-appellant, v. Milt Howell, Librarian of Crci; Barbara Mcneely, Programdirector of Crci, Defendants-appellees, 86 F.3d 1161 (9th Cir. 1996)

MEMORANDUM^** 

Edward E. Allen, a federal prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915(d). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand for further proceedings.

We review the district court's sua sponte dismissal prior to service of process for abuse of discretion. See Denton v. Hernandez, 504 U.S. 25, 33 (1992). The district court may dismiss an in forma pauperis complaint pursuant to 28 U.S.C. § 1915(d) if it is frivolous. Neitzke v. Williams, 490 U.S. 319, 324 (1989); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). A complaint is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke, 490 U.S. at 325.

Unless it is absolutely clear that no amendment can cure the defect, a pro se litigant proceeding in forma pauperis is entitled to notice and an opportunity to amend the complaint before dismissal. See Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Moreover, in civil rights actions 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).

Here, Allen alleged in his complaint that his constitutional rights were violated when a prison official retained copies of Allen's legal documents for his own use, distributed the copies to another prison official as well as to a prosecutor, and used the documents against Allen in prison disciplinary proceedings. Because Allen's allegations have an arguable basis in law, see Rizzo v. Dawson, 778 F.2d 557, 530-31 (9th Cir. 1985); Casey v. Lewis, 43 F.3d 1261, 1269 (9th Cir. 1994), cert. granted, 63 U.S.L.W. 3832 (U.S. May 22, 1995) (No. 94-1511), Allen's claim is not frivolous, see Neitzke, 490 U.S. at 325. Moreover, because it is not absolutely clear that no amendment would have enabled Allen to allege a constitutional violation, the district court abused its discretion by dismissing this claim without providing Allen with the opportunity to amend. See Karim-Panahi, 839 F.2d at 624-25; Noll, 809 F.2d at 1448.

Accordingly, we vacate and remand the action to the district court so that specific notice of the complaint's deficiencies and an opportunity to amend can be provided to Allen. See Lucas, 66 F.3d at 248.¹ 

VACATED and REMANDED.