Jesus T. Evangelista, Plaintiff-appellant, v. James Blodgett; Jeff Mcmann; Walla Walla General Hospital,defendants-appellees, 976 F.2d 736 (9th Cir. 1992)

MEMORANDUM^*

Jesus T. Evangelista, a Washington state prisoner, appeals pro se the district court's sua sponte dismissal of his civil rights action. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review for an abuse of discretion. Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992). We vacate and remand for service of process.

We construe the district court's dismissal of Evangelista's complaint prior to service of process as a dismissal pursuant to 28 U.S.C. § 1915(d). See Jackson v. Arizona, 885 F.2d 639, 640-41 (9th Cir. 1989). An in forma pauperis complaint may be dismissed before service of process under 28 U.S.C. § 1915(d) if it is frivolous. Neitzke v. Williams, 490 U.S. 319, 324 (1989). A complaint is frivolous if "it lacks an arguable basis in law or in fact." Id. at 325. In civil rights actions 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). A pro se plaintiff with an arguable claim is entitled to issuance and service of process, even if the complaint does not state a claim under Fed. R. Civ. P. 12(b) (6). Denton, 112 S. Ct. at 1733; Jackson, 885 F.2d at 640-41.

In his complaint, Evangelista alleged that he was raped by his physician and/or his prison guard while unconscious during surgery on his hemorrhoids at Walla Walla General Hospital. If true, such allegations would state a section 1983 claim. See generally Hudson v. McMillian, 112 S. Ct. 995 (1992). While we may find this claim highly dubious, we cannot say from the face of the complaint that it is wholly delusional or "clearly baseless." See Denton, 112 S. Ct. at 1733-34 (" [a]n in forma pauperis complaint may not be dismissed ... simply because the court finds the plaintiff's allegations unlikely").

Because Evangelista's complaint contains an arguable basis in law and fact, we vacate the district court's sua sponte dismissal with instructions that process be served. See Neitzke, 490 U.S. at 324; Jackson, 885 F.2d at 640.

VACATED and REMANDED.