101 F.3d 705

Michael W. ESTES, Plaintiff-Appellant, v. The JUDICIARY OF STATE OF NEVADA; Cheryl Lau; Frankie Sue Del Papa; Rodney Burr; Lee A. Gates; Robert B. Gaston; Henderson Police Dept.; H.P.D. Detective 1, a white male; H.P.D. Detective 2, a black male; H.P.D. Detective 3, a white male; H.P.D. Detective 4, a white female; Henderson Jail; Clark County District Attorney's Office Deputy D.A. 1, a white female; Clark County Board of Commissioners; John Moran; Clark County Detention Center; Director of C.C.D.C.; Las Vegas Metropolitan Police Dept.; Clark County Public Defenders Office; Curtis L. Brown, atty; D. Bruce Anderson, atty; Nevada Department of Prisons; Southern Desert Correctional Center; Leon Hardison; S.D.C.C. Classification Committee; Northern Nevada Correctional Center; Brenda Burns, N.N.C.C. Classification Committee; Nevada State Prison; John Ignacio; Robert G. Farrar; c/o White; c/o Adams; N.S.P. Classification Committee; Larry Adamson; Charles Hillsabeck; Craig Farwell; Randolph G. Prillaman; George H. Burttram; John W. Hawkin; Donald L. Helling; Don Fagen; Mike Bradly; Assist 1; Assist 2; Sgt. Fosnaugh; Jeffrey Froschauer; c/o Giraldo; Control Officer on Duty 3/29/95 @ 2:30 p.m.; C.C.D.C. Medical Provider; Graveyard Shift Nurse 1; Rex Bell, Deputy District Atty # 2; Nevada Department of Parole & Probation; P & P Officer # 1, a white male; Karl L. Sannicks; George M. Weeks, III; Bruce Harkreader; Nevada Bell Telephone Co.; Jean Roberts; Dr. Brandenburg; Dr. Moldy; Robert Bayer; John Slansky; Nevada Board of Parole Commissioners, Defendants-Appellees.

No. 96-15081.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1996.*
Decided Nov. 13, 1996.

Before: PREGERSON, REINHARDT, and T.G. NELSON, Circuit Judges.

¶1

MEMORANDUM…

¶2

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.

¶3

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).

¶4

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).

¶5

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.

¶6

VACATED and REMANDED.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Estes's request for oral argument is denied

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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