Unpublished Disposition, 898 F.2d 156 (9th Cir. 1990)

MEMORANDUM^** 

In 1986, Johnson sought leave to file a civil rights action against Wallace Deen Mohammad and Louis Farrakhan without prepayment of the filing fee. Johnson apparently was excluded from the appellees' church some years ago; he suggests it was in retaliation for his knowledge of their alleged illegal activities. Johnson further alleges that Mohammad and Farrakhan are self-serving false prophets, that he is a true teacher, and that by preaching falsely, they are depriving him of his first amendment right to freely exercise his religious beliefs. The district court denied filing of Johnson's in forma pauperis action because it was unintelligible and sermon-like and because Johnson failed to describe the injury he suffered, how the defendants caused the injury, and the basis for federal jurisdiction. We affirm.

Under 28 U.S.C. § 1915(a), a district court may grant in forma pauperis status if a litigant is unable to pay the costs of the suit. Nevertheless, the district court may deny leave to proceed in forma pauperis if the action is frivolous. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). A claim is frivolous if it lacks an arguable basis in law or in fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). In civil rights cases where the plaintiff appears pro se, the court must construe pleadings liberally and afford the plaintiff notice of the deficiencies and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies cannot be cured by amendment. Tripati, 821 F.2d at 1370; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

To state a section 1983 claim, the plaintiff must allege facts showing a deprivation of a constitutional right, privilege, or immunity by a person acting under color of state law. 42 U.S.C. § 1983; see also Parratt v. Taylor, 451 U.S. 527, 535 (1981). Here, Mohammad and Farrakhan are private persons who do not act under color of state law, and thus Johnson cannot state a section 1983 claim against them. Because it is absolutely clear that the deficiencies of his complaint cannot be cured by amendment, we affirm the district court's denial of Johnson's motion to proceed in forma pauperis. See Tripati, 821 F.2d at 1370.

AFFIRMED.