Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1989)

On August 2, 1989, Justice filed an amended complaint alleging the following: (1) that he had been denied treatment at various medical facilities, including two Veterans Administration hospitals, and that the government had tampered with his medical records and was negligent; (2) that his mail had been stolen, including a "D.O.D. surplus catalogue" by his own mailman, and that a postal inspector had failed to help even though the inspector knew the identity of the person stealing items from his post office box; (3) that various local officials had failed to investigate his claim that he was subject to mind tampering or to aid him despite knowing of his health problems and stolen mail; (4) that the government interfered with his attempts to upgrade his military discharge status; and (5) that an unnamed individual was destroying his medication, and that he was unable to contact Oral or Richard Roberts to find out who it was. The remaining claims in Justice's amended complaint allege the use of mental telepathy by unnamed individuals to inflict mental and physical pain and suffering upon Justice.

On January 26, 1990, the district court granted the United States's motion to dismiss the United States as a defendant. The district court, citing 28 U.S.C. § 1915(d), found that " [d]espite granting Justice an opportunity to amend his original complaint to more fully specify the factual basis of his claims, the amended complaint contains only conclusory, unsupported allegations which are frivolous." The district court observed that Justice's amended complaint did contain several possible claims against the Postal Service, the Veterans Administration, and the military but found that Justice had failed to exhausted his administrative remedies regarding these possible claims. On March 1, 1990, the district court dismissed Justice's action as to all defendants.² 

II

Analysis

We review the district court's dismissal of Justice's action de novo. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (de novo review of dismissal as frivolous under 28 U.S.C. § 1915(d)); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 1446, 1447 (9th Cir. 1987) (de novo review of dismissal for failure to state a claim upon which relief can be granted); Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990) (de novo review of dismissal of lack of subject-matter jurisdiction).

B. Dismissal for Failure to Exhaust Administrative Remedies

Prior to filing an action alleging a wrongful act of an employee of the United States government, a claimant must first present the claim to the appropriate federal agency for resolution. 28 U.S.C. § 2675(a). "A claim is presented properly to an agency ... when the agency is given sufficient written notice ... and the claimant places a value on the claim." Avery v. United States, 680 F.2d 608, 610 (9th Cir. 1982). A claimant's proper presentation of the claim to the agency is a jurisdictional prerequisite to filing suit. Wright v. Gregg, 685 F.2d 340, 341 (9th Cir. 1982).

Here, Justice, before filing his suit, did not present claims for loss to the Veterans Administration as required by section 2675(a). Nor does it appear that he presented a claim to the Postal Service.³  Because Justice failed to exhaust his administrative remedies, the district court was without jurisdiction as to those claims. Moreover, to the extent that his action can be construed as a challenge to his military discharge status, the district court was also without jurisdiction to hear this claim because of Justice's pending appeal before the Board for Correction of Naval Records. Accordingly, the district court did not err in dismissing these claims for lack of subject-matter jurisdiction.

The district court found that the remaining claims in Justice's amended complaint were frivolous. A district court may dismiss an action as frivolous pursuant to 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. An indigent pro se plaintiff's complaint, however, may not be deemed frivolous merely because it fails to state a claim for which relief can be granted. Id. at 1833. Moreover, unless it is absolutely clear that the deficiencies of the complaint cannot be cured, the pro se plaintiff also must be given an opportunity to amend the complaint. See Hernandez v. Denton, 919 F.2d 573, 575 (9th Cir. 1990); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987).

Here, Justice's remaining claims are frivolous. See Neitzke, 109 S. Ct. at 1831; Jackson, 885 F.2d at 640. Despite being given an opportunity to amend, Justice's claims are either not cognizable by a federal court or so deficient that it "is absolutely clear that the deficiencies of the complaint could not be cured by amendment." See Franklin v. Murphy, 745 F.2d 1221, 1228 n. 9 (9th Cir. 1984) (quotations omitted); see also North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 583 (9th Cir. 1983) (" [b]ecause the complaint is vague, conclusory, and general and does not set forth any material facts in support of the allegations, these claims were properly dismissed").

Accordingly, we hold that the district court did not err in dismissing Justice's action.

AFFIRMED.