Donald Gene Henthorn, Petitioner-appellant, v. United States Internal Revenue Service, Respondent-appellee, 24 F.3d 246 (9th Cir. 1994)

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U.S. Court of Appeals for the Ninth Circuit - 24 F.3d 246 (9th Cir. 1994)

Submitted May 11, 1994. *Decided May 13, 1994


Before: HUG, D.W. NELSON, and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Donald Gene Henthorn, a federal prisoner, appeals pro se the district court's sua sponte dismissal of his petition for a writ of mandamus for lack of jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992), and we affirm.

A complaint may be dismissed sua sponte before service of process if it is frivolous. Neitzke v. Williams, 490 U.S. 319, 324 (1989); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke, 490 U.S. at 325. Accordingly, the district court may dismiss a complaint that is based on a meritless legal theory or factual contentions that are clearly baseless. Id.

In his petition, Henthorn essentially sought a court order directing the Internal Revenue Service to "cease and desist" from charging interest and penalties on Henthorn's outstanding tax liability. Because the Anti-Injunction Act prohibits a taxpayer from bringing "a suit for the purpose of restraining the assessment or collection of any tax" the district court did not abuse its discretion by dismissing Henthorn's "petition for a writ of mandamus" as frivolous. See 26 U.S.C. § 7421(a); Elias v. Connet, 908 F.2d 521, 523 (9th Cir. 1990).

AFFIRMED.

 *

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