139 F. 3d 903 - Brown v. H Gomez
139 F3d 903 Brown v. H Gomez
139 F.3d 903
Joel BROWN, Plaintiff-Appellant,
v.
James H. GOMEZ, Defendant-Appellee.
No. 97-15594.
D.C. No. CV-96-00107-EJG.
United States Court of Appeals, Ninth Circuit.
Submitted February 9, 1998.**
Decided Feb. 19, 1998.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Appeal from the United States District Court for the Eastern District of California Edward J. Garcia, District Judge, Presiding.
Before PREGERSON, CANBY, and LEAVY, Circuit Judges.
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MEMORANDUM*
Joel Brown, a California state prisoner, appeals pro se the district court's 28 U.S.C. § 1915(d)1 dismissal of his 42 U.S.C. § 1983 action for insufficient nutrition. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's dismissal prior to service of process for an abuse of discretion, see Denton v. Hernandez, 504 U.S. 25, 33-34, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), and we reverse.
Brown contends that the district court erred in finding his action frivolous. This contention has merit.
The Eighth Amendment requires prisons to furnish adequate nutrition. See Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). Because Brown's amended complaint alleged that he has shed fifty pounds over the past ten years of incarceration, and that he can only maintain his current weight through supplementing his diet with food provided from friends and relatives, we find the district court abused its discretion by dismissing the action as frivolous.
REVERSED 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
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
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On April 26, 1996, former section 28 U.S.C. § 1915(d) was redesignated 1915(e) by the Prison Litigation Reform Act, Pub.L. No. 04-134, 110 Stat. 1321 (1996). The portion of 1915(d) that allowed district courts to dismiss frivolous in forma pauperis complaints is now codified at 28 U.S.C. § 1915(e)(2)(B)(i) (1996)