911 F. 2d 738 - Rice v. Lewis
911 F2d 738 Rice v. Lewis
911 F.2d 738
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Larry RICE, Plaintiff-Appellant,
v.
Samuel LEWIS, Defendant-Appellee.
No. 90-15108.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 20, 1990.*
Decided Aug. 22, 1990.
Before TANG, ALARCON and WIGGINS, Circuit Judges.
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MEMORANDUM**
Larry Rice, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. Sec. 1983 complaint as frivolous under 28 U.S.C. Sec. 1915(d). Rice's complaint alleged that a prison policy requires him to be clean-shaven but that there is no policy requiring the prison to provide him with shaving materials. He asserts that the failure to provide shaving materials constitutes cruel and unusual punishment because he lives in constant fear that he will violate prison policies if at some point he is unable to purchase shaving materials. We have jurisdiction under 28 U.S.C. Sec. 1291 and review de novo. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989). We affirm.
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 in law or in fact." Id. A district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).
To establish a section 1983 claim, the plaintiff must allege facts showing a deprivation of a constitutional right, privilege, or immunity by a person acting under color of state law. 42 U.S.C. Sec. 1983; see also Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). To establish an eighth amendment violation, a defendant's conduct must be incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quotation omitted). A prison meets its eighth amendment obligation "if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982).
Here, Rice's speculative fear that he may be unable to obtain shaving supplies in the future does not rise to the level of an eighth amendment violation.
AFFIRMED.