Summary
holding that a court may sua sponte dismiss a complaint for failure to state a claim, without providing notice or an opportunity to respond, where the plaintiff cannot possibly win relief
Summary of this case from Hawkins v. WesleyOpinion
No. 14-55773
03-03-2016
JASON BARNARD, Plaintiff - Appellant, v. U.S. GOVERNMENT, Defendant - Appellee.
NOT FOR PUBLICATION
D.C. No. 5:14-cv-00814-GW-JC MEMORANDUM Appeal from the United States District Court for the Central District of California
George H. Wu, District Judge, Presiding Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jason Barnard appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging a First Amendment claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a sua sponte dismissal for failure to state a claim. Barrett v. Belleque, 544 F.3d 1060, 1061 (9th Cir. 2008). We affirm.
The district court properly dismissed Barnard's action as frivolous because Barnard's claims lacked any arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (a "frivolous" claim lacks an arguable basis either in law or in fact; the "term 'frivolous' . . . embraces not only the inarguable legal conclusion, but also the fanciful factual allegation"); see also Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (court may sua sponte dismiss for failure to state a claim without notice or an opportunity to respond where plaintiff cannot possibly win relief). Moreover, Barnard failed to show that the United States has waived its sovereign immunity from suit. See United States v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."); Jachetta v. United States, 653 F.3d 898, 904 (9th Cir. 2011) (§ 1983 does not waive sovereign immunity).
AFFIRMED.