Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1991)
Annotate this CaseDennis Nelson FIXEL, Plaintiff-Appellant,v.The NEVADA LEGISLATIVE COMMISSION, Defendant-Appellee.
No. 89-15405.
United States Court of Appeals, Ninth Circuit.
Submitted July 29, 1991.* Decided Aug. 2, 1991.
Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.
MEMORANDUM**
Dennis Nelson Fixel, a Nevada state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action as frivolous pursuant to 28 U.S.C. § 1915(d). In his complaint, Fixel alleged that Nev.Rev.Stat. Sec. 193.165, the statute under which his sentence was enhanced, is unconstitutional. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we affirm.
Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640 (citing Neitzke, 490 U.S. at 329-30).
The district court properly construed Fixel's complaint as a habeas petition because he challenges the propriety of his sentence and conviction. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Young v. Kenny, 907 F.2d 874, 875-76 (9th Cir. 1990), cert. denied, 111 S. Ct. 1090 (1991). In addition, the district court properly dismissed Fixel's action before service of process. Fixel has raised the constitutionality of Nev.Rev.Stat. Sec. 193.165 in at least two prior habeas proceedings. The district court rejected his challenges in both proceedings, and we denied Fixel's motion for a certificate of probable cause in one appeal and affirmed the district court's dismissal in the second appeal. In addition, Fixel has presented the same issue to the district court in at least two prior civil rights actions, which the district court resolved against him. See also Eckert v. Tansy, No. 89-16476, slip op. (9th Cir. June 17, 1991) (1991 WESTLAW 101667) (upholding constitutionality of Nev.Rev.Stat. Sec. 193.165). We therefore affirm the district court's dismissal.1
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.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 9th Cir.R. 36-3
In his complaint, Fixel also alleged that prison officials are denying him access to the courts by debiting his prison account for the cost of legal postage and refusing to copy his legal documents. Because Fixel did not name any prison officials as parties in his complaint, we construe his allegations as a claim regarding denial of access to the courts in this action. Because we affirm the district court's dismissal of Fixel's action, we do not address this claim. To the extent that Fixel may be alleging a general access to the courts claim, he has a civil rights action concerning his access to courts claim pending in district court. See Fixel v. Sumner, No. 89-16487, unpublished memorandum disposition (9th Cir. July 23, 1991) (remanding section 1983 action for service of process). Because a court may dismiss actions that are redundant, we affirm the district court's dismissal as to this claim. See Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987); Stiltner v. Rhay, 322 F.2d 314, 316 (9th Cir. 1963), cert. denied, 376 U.S. 920 (1964)
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