Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1988)

MEMORANDUM^** 

On May 4, 1988, appellant Luca, an Arizona state prisoner, filed a pro se 42 U.S.C. § 1983 action in district court alleging that he had been given a failing grade in English Composition at the Florence Central Arizona College Prison Campus. Luca named Fred Pennigar, who was the instructor, and Central Arizona College as defendants. Luca asked the district court to order Central Arizona college to give him a grade of "C" or higher. After granting Luca leave to proceed in forma pauperis, the district court denied Luca's motion for appointment of counsel and sua sponte dismissed the action without allowing service of the complaint on the defendants. Luca now appeals pro se from the district court's judgment.

* An in forma pauperis action may be dismissed sua sponte prior to service of process if the action is frivolous. 28 U.S.C. § 1915(d); Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous so long as it has no arguable basis in fact or law. Neitzke, 109 S. Ct. at 1831. The district court must give the plaintiff an opportunity to amend unless it is clear that the complaint's deficiencies could not be cured through amendment. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985).

Merely receiving a failing grade does not, of course, give rise to a constitutional claim. Luca's complaint is clearly frivolous because it is utterly devoid of any allegation of denial of substantive due process. Moreover, we are persuaded that Luca's deficient complaint could not be cured through an amendment. Therefore, the district court did not err in dismissing Luca's action.

II

The district court is authorized under 28 U.S.C. § 1915(d) to appoint an attorney to represent an indigent civil litigant. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). However, counsel will only be appointed under section 1915(d) in "exceptional circumstances." Id. "A finding of exceptional circumstances requires the evaluation of both 'the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.' " Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)).

Luca's pleadings are sufficiently articulate under these circumstances and his section 1983 claim has no likelihood of success on the merits. Therefore, the district court did not abuse its discretion in refusing to appoint counsel under section 1915(d).

AFFIRMED.