John J. Zichko, Plaintiff-appellant, v. State of Idaho; Kootenai-shoshone Soil Conservationdistrict; Wade Maclean, Chairman; A.j. Arave, Warden,department of Corrections; Richard A. Vernon, Director,department of Corrections, Defendants-appellees, 978 F.2d 717 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 978 F.2d 717 (9th Cir. 1992)

Submitted Oct. 22, 1992. *Decided Oct. 28, 1992

Before SNEED, BEEZER and WIGGINS, Circuit Judges.


John Zichko appeals pro se from the district court's dismissal of his 42 U.S.C. § 1983 civil rights complaint against prison officials as frivolous under 28 U.S.C. § 1915(d). We review for an abuse of discretion. Denton v. Hernandez, 112 S. Ct. 1728, 1730 (1992). We affirm.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Nietzke v. Williams, 490 U.S. 319, 324 (1989). A complaint is frivolous "where it lacks an arguable basis in law or in fact." Id. A district court must afford a pro se plaintiff an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

To establish a section 1983 claim, the plaintiff must allege facts showing a deprivation of a constitutional right, privilege, or immunity by a person acting under color of state law. 42 U.S.C. § 1983; Parrat v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniel v. Williams, 474 U.S. 327 (1986). Here, Zichko was advised of the deficiencies in his original complaint and was given the opportunity to amend. Nevertheless, his second amended complaint is vague, confusing and does not appear to specifically allege a proper cause of action under section 1983. Accordingly the district court did not abuse its discretion by dismissing Zichko's complaint. See Denton, 112 S. Ct. at 1730.



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