Unpublished Disposition, 908 F.2d 976 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 908 F.2d 976 (9th Cir. 1989)

Alfred Leon JONES, Plaintiff-Appellant,v.Tom SPRATT, News Reporter, Phoenix Gazette Newspaper;Phoenix Gazette Newspaper, Defendants-Appellees.

No. 89-15791

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1989.* Decided July 10, 1990.

Before ALARCON, O'SCANNLAN and LEAVY, Circuit Judges.


MEMORANDUM** 

OVERVIEW

Alfred Leon Jones ("Jones"), proceeding pro se and in forma pauperis, appeals the district court's dismissal of his 42 U.S.C. § 1983 civil rights action against the Phoenix Gazette and one of its reporters, Tom Spratt. Jones alleges that the defendants prejudiced his criminal trial by publishing a news article which was not factual in content. The district judge dismissed Jones' complaint prior to service for failure to show that the defendants acted "under color of state law." We affirm.

DISCUSSION

The district court may dismiss a complaint sua sponte prior to issuance of process if "satisfied that the action is frivolous or malicious." Jackson v. Arizona, No. 88-1550, slip op. 11609, 11612 (9th Cir. Sept. 18, 1989); 28 U.S.C. § 1915(d). A complaint is frivolous within the meaning of section 1915(d) if it has no arguable basis in law or fact. Jackson, slip op. at 11612. However, a pro se plaintiff proceeding in forma pauperis is entitled to have process issued and served and an opportunity to amend the complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Stanger v. City of Santa Cruz, 653 F.2d 1257, 1257-58 (9th Cir. 1980).

In order to state a claim for relief under section 1983, Jones must show that the defendants deprived him of his constitutional rights while acting "under color of state law." Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The Phoenix Gazette is purely a private organization which is not in any way connected with or controlled by the state with respect to the content of its newspapers. Therefore, Jones has not alleged, nor is it possible for him to allege, the "state action" necessary to support his section 1983 claim. Accordingly, Jones' complaint was properly dismissed by the district court as having no basis in law or fact.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 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 Ninth Circuit Rule 36-3