Unpublished Disposition, 940 F.2d 668 (9th Cir. 1991)
Annotate this CaseMusa HAS, Plaintiff-Appellant,v.T.D. AYERS, Defendant-Appellee.
No. 89-16041.
United States Court of Appeals, Ninth Circuit.
Submitted July 23, 1991.* Decided July 25, 1991.
Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.
MEMORANDUM**
Musa Has, a California state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.1 We review for an abuse of discretion, McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991), and we vacate and remand.
In his original complaint, Has alleged that correctional officer T.D. Ayers violated the eighth amendment when he injured Has while breaking up a prison disturbance. The magistrate dismissed his original complaint as frivolous because it did not allege facts sufficient to state a section 1983 claim, and gave him thirty days to file an amended complaint. Has then filed an amended complaint, which the magistrate again dismissed as frivolous with leave to amend to state facts sufficient to support a section 1983 claim. Has then filed a second amended complaint, which the magistrate again dismissed with leave to amend. Has failed to file his third amended complaint within the time allotted by the magistrate, and the district court dismissed the entire action without prejudice for failure to prosecute.
A district court may dismiss an action sua sponte before service of process for an unreasonable failure to prosecute. Id. A refusal to file an amended complaint is not an unreasonable failure to prosecute if the first complaint was dismissed erroneously. Id.
Here, the magistrate sua sponte dismissed Has's initial complaints as frivolous 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). In civil rights cases where the plaintiff appears pro se, the court must construe pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citing Neitzke, 490 U.S. at 329-30).
Here, we cannot say from the face of Has's complaints that his eighth amendment claim lacks an arguable basis in law or in fact. Because his claim is not frivolous, the district court erred in dismissing the amended complaint for failure to prosecute. McKeever, 932 F.2d at 798. Moreover, because Has has an arguable claim, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640.2
VACATED AND REMANDED.
The panel unanimously finds this case suitable for decision 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
The district court's dismissal of the action without prejudice is a final appealable order. See United States v. Wallace & Tiernan Co., 336 U.S. 793, 794-95 n. 1 (1949); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985)
Although the magistrate gave Has notice of the deficiencies of his complaint and an opportunity to amend to state facts sufficient to support his 1983 claim, this requirement is appropriate for dismissals for failure to state a claim under Fed. R. Civ. P. 12(b) (6). See Neitzke, 490 U.S. at 329-30; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). In contrast, the appropriate inquiry for a sua sponte dismissal under section 1915(d) is whether the claim has an arguable basis in law or in fact. Neitzke, 490 U.S. at 325; Jackson, 885 F.2d at 640
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