OpenJurist

36 F3d 1102 Broadnax v. K Carney

36 F.3d 1102

Lawrence BROADNAX, Plaintiff-Appellant,
v.
K. CARNEY; Brad Coleman; Bud Snider, Defendants-Appellees.

No. 94-55291.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 20, 1994.*
Decided Sept. 22, 1994.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: SNEED, WIGGINS, and FERNANDEZ, Circuit Judges.

1

MEMORANDUM**

2

California state prisoner Lawrence Broadnax appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. Sec. 1983 action against prison food service personnel, alleging his civil rights were violated by the temporary use of manual dishwashing methods. A court's sua sponte dismissal of a complaint before issuance and service of process upon the defendants is construed as a dismissal as frivolous under 28 U.S.C. Sec. 1915(d). Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989). We review for an abuse of discretion, Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992).

3

A frivolous claim is one which lacks an arguable basis in either law or fact. Nietzke v. Williams, 490 U.S. 319, 324 (1989). Broadnax alleged that the prison's use of manual dishwashing methods, while the prison kitchen facilities were being renovated, violated his rights, and sought a temporary restraining order and monetary damages. Prison officials submitted evidence that the dishwashing methods complied with state regulations and had passed the inspection of a state safety inspector. Accordingly, the district court did not abuse its discretion in denying Broadnax's motion for a temporary restraining order, and in dismissing his complaint as frivolous. Id.

4

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