OpenJurist

917 F2d 27 Barela v. State of Arizona

917 F.2d 27

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Frank BARELA, Plaintiff-Appellant,
v.
STATE OF ARIZONA, Defendant-Appellee.

No. 89-16461.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1990.*
Decided Oct. 25, 1990.

Before HUG, NELSON and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Frank Barela appeals pro se the district court's order dismissing his civil rights action as frivolous under 28 U.S.C. Sec. 1915(d). We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989), and affirm.

3

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. Sec. 1915(d). Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or fact." Id. Generally, the district court must afford a pro se plaintiff notice of the deficiencies of the complaint and leave to amend unless it is absolutely clear that the complaint's deficiencies could not be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.1987).

4

Barela's complaint alleged that the state improperly deprived him of custody of his daughter. The district court did not err in dismissing the complaint as frivolous because the complaint lacks an arguable basis in law or fact and is not curable by amendment. Under the eleventh amendment the state of Arizona is immune from suits brought in federal court, see Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984), and the complaint's factual allegations are clearly baseless, see Neitzke, 109 S.Ct. at 1833.

AFFIRMED.1

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Barela's requests for oral argument are denied

**

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

1

Barela's nine-page document titled "Memorandum," received by this court on April 4, 1990, is construed as his opening brief and is considered filed as of the date it was received