Unpublished Disposition, 902 F.2d 40 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1989)

Joe Allen ROBLES, Plaintiff-Appellant,v.A. MICHIENZI, Defendant-Appellee.

No. 89-16037.

United States Court of Appeals, Ninth Circuit.

Submitted April 24, 1990* .Decided April 26, 1990.

Before TANG, NELSON, and O'SCANNLAIN, Circuit Judges.


MEMORANDUM*

Joe Allen Robles, an Arizona state prisoner, appeals pro se and in forma pauperis the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and reverse and remand.

The district court dismissed Robles's complaint before issuing and serving process upon the defendants. We therefore construe the dismissal as one under 28 U.S.C. § 1915(d). Jackson, 885 F.2d at 640.

Under section 1915(d), a district court may dismiss frivolous in forma pauperis complaints sua sponte. 28 U.S.C. § 1915(d); Jackson, 885 F.2d at 640. A frivolous claim is one which lacks an arguable basis in either law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). Generally, unless it is absolutely clear that the deficiencies of a complaint cannot be cured by amendment, the district court must give a pro se litigant notice of the deficiencies of the complaint and an opportunity to amend before dismissal. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

Although Robles's complaint is difficult to comprehend, he appears to allege that on February 27, 1989, there was human feces in the food given to the prisoners. He alleges that sixty-seven prisoners were witnesses. Further, Robles appears to allege that on April 13, 1989, Michienzi told him that the food did in fact contain feces. Finally, Robles alleges that by eating the contaminated food, he could contract hepatitis. The district court dismissed the complaint on the ground that Robles recited bare legal conclusions without supporting facts. We disagree.

If Robles's allegations are true, then he arguably has alleged a claim for cruel and unusual punishment under the eighth amendment. See Jackson, 885 F.2d at 641 (finding that a prisoner's section 1983 claim based on unsanitary food handling and polluted water was not frivolous); accord Robles v. Coughlin, 725 F.2d 12, 15-16 (2d Cir. 1983) (holding that a prisoner's allegation that prison officials had contaminated the inmates' meals with, inter alia, human waste was sufficient to withstand a motion to dismiss). Moreover, it is not absolutely clear that Robles could not cure the deficiencies in his complaint by amendment. See Noll, 809 F.2d at 1448. Therefore, the district court should have notified Robles of the deficiencies in his complaint and allowed him an opportunity to amend. Id.1 

REVERSED AND REMANDED.

 *

The panel unanimously finds this case suitable for disposition 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

 1

Robles alleges numerous other constitutional violations for the first time on appeal. Because we generally do not consider issues raised for the first time on appeal, see Vincent v. Trend Western Technical Corp., 828 F.2d 563, 570 (9th Cir. 1987), and because we remand to the district court to allow Robles to amend his complaint, we will not address Robles's new allegations