Joseph Mcinerney, Plaintiff-appellant, v. David Richman, M.d., et al., Defendants-appellees, 985 F.2d 573 (9th Cir. 1993)

MEMORANDUM^** 

Joseph McInerney appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action prior to service of process.¹  McInerney appears to contend that the district court erred by: (1) dismissing his complaint prior to service of process; and (2) failing to give him notice of the deficiencies of his complaint and an opportunity to amend it.²  McInerney claims that his psychiatrists and their attorneys conspired to invade his privacy by disclosing and publishing his medical records to the public. The district court dismissed the complaint for lack of jurisdiction because: (1) there was no diversity of citizenship and (2) there was no federal question. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

We review de novo the existence of subject matter jurisdiction. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990). The district court's factual findings on jurisdictional issues must be accepted unless clearly erroneous. Stock West, Inc. v. Confederate Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

Frivolous in forma pauperis complaints may be dismissed before service of process under 28 U.S.C. § 1915(d). Neitzke v. Williams, 490 U.S. 319, 324 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Id. at 325. In civil rights actions, allegations of a pro se complaint, however inartfully pleaded, should be liberally construed. Lopez v. Dep't of Health Services, 939 F.2d 881, 882-83 (9th Cir. 1991) (per curiam). Moreover, a pro se plaintiff with an arguable claim is entitled to issuance and service of process. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).

To state a claim under section 1983, a plaintiff must allege: (1) the violation of a right secured by the constitution; and (2) that the alleged deprivation was caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, McInerney alleges that his former private psychiatrists and their attorneys conspired to invade his privacy by disclosing confidential information to the public.

While his psychiatrists may have breached the doctor-patient privilege or committed the tort of defamation, this claim does not rise to the level of a constitutional deprivation. Because the psychiatrists and their attorneys are not "state actors," McInerney fails the second prong of the section 1983 test as well. Therefore, the district court properly dismissed his complaint prior to service of process. See id.

McInerney also contends that the district erred by dismissing his complaint without giving him notice and an opportunity to amend his complaint prior to dismissal. "The law is clear that before a district court may dismiss a pro se complaint for failure to state a claim, the court must provide the pro se litigant with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal." McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992).

Nevertheless, there is a limited exception to the "notice" requirement. When it is absolutely clear that the deficiencies in a complaint cannot be overcome by amendment, the opportunity to amend need not be given prior to dismissal. See id.

District courts have jurisdiction in civil actions where there is complete diversity of citizenship among parties. 28 U.S.C. § 1332; see also Teledyne v. Kone Corp., 892 F.2d 1404, 1408 (9th Cir. 1990). Here, at least one of the defendants and McInerney were residents of the State of California.³ 

The district court dismissed McInerney's complaint for lack of jurisdiction. In order to cure the "deficiencies" in his complaint, McInerney would have to "create" diversity jurisdiction. In addition, he would have to make his private psychiatrists "state actors" in order to state a federal question.

Therefore, the district court properly dismissed the complaint for lack of jurisdiction without leave to amend.

AFFIRMED.