Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1990)

MEMORANDUM^** 

Larry D. Morrow, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(d).¹  Morrow contends that he was deprived of property without due process. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Id. Before dismissing a complaint, the district court must give a pro se litigant an opportunity to amend, unless it is absolutely clear that the complaint's deficiencies cannot be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

Here, Morrow argues that Deputy Warden Gaspar violated his right to due process by withholding an acetylene tank and torch Morrow had purchased from a mail-order company. Gaspar initially approved Morrow's request to purchase a "casting system" for use in a hobbycraft class. When the tank and torch arrived at the prison, however, Gaspar notified Morrow that the approval was an oversight, and that the torch was being withheld because it was a fire hazard and a security risk.

The district court's sua sponte dismissal was proper because Morrow's complaint lacks an arguable basis in law and fact, and could not be cured by amendment. See Neitzke, 109 S. Ct. at 1831; Noll, 809 F.2d at 1448. Courts must accord prison officials wide-ranging deference in adopting and executing policies that in the officials' judgment are necessary to preserve internal order and maintain prison safety and security. Bell v. Wolfish, 441 U.S. 520, 547 (1979). Because the acetylene tank and torch pose a threat to institutional security, the district court correctly deferred to Deputy Warden Gaspar's decision to withhold these items from Morrow. See id.

Morrow also argues that Gaspar discriminated against him, because another inmate allegedly possesses the same type of tank and torch. Because Gaspar's decision to withhold the tank and torch was based on his judgment that Morrow's possession of these items would threaten institutional security, the fact that another inmate may be allowed to have such items does not amount to a violation of Morrow's constitutional rights. See id.

AFFIRMED.²