Notice: Ninth Circuit Rule 36-3 Provides That Dispositions Other Than Opinions or Orders Designated for Publication Are Not Precedential and Should Not Be Cited Except when Relevant Under the Doctrines of Law of the Case, Res Judicata, or Collateral Estoppel, 101 F.3d 705 (9th Cir. 1995)

MEMORANDUM^** 

Michael W. Estes, a Nevada state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

We review a district court's sua sponte dismissal prior to service of process for abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

Here, the district court denied Estes's motion to file a third amended complaint and dismissed the action, stating that Estes alleged claims that were insufficient as a matter of law. Upon review of Estes's proposed third amended complaint, we conclude that Estes raised claims with an arguable basis in law. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). Estes's claims that defendant Ignacio deprived Estes of heat in his prison cell and that his clearly marked legal mail had been opened outside of his presence have an arguable basis in law. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wolff v. McDonell, 418 U.S. 539, 577 (1974).

Accordingly, the district court abused its discretion by dismissing the action. See Denton, 504 U.S. at 33. We vacate the dismissal. On remand, the district court shall file Estes's third amended complaint and issue service of process.

VACATED and REMANDED.