972 F. 2d 1341 - Pellegrino v. G Borg

MEMORANDUM**

Salvatore Pellegrino, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action as frivolous under 28 U.S.C. § 1915(d).1 We review for abuse of discretion, Denton v. Hernandez, 112 S.Ct. 1728 (1992), and we affirm.²

A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Although this court "respects an incarcerated prisoner's right to bodily privacy, ... assigned positions of female guards that require only infrequent and casual observation, or observation at distance, and that are reasonably related to prison needs are not so degrading as to warrant court interference." Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir.1988) (citations omitted). Allegations of a threat for the purpose of denying one's access to the courts are insufficient to state a cause of action under section 1983. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987).

In his amended complaint, Pellegrino contends that (1) he was deprived of his right to privacy because female prison guards observed him from the prison's control booth while he was showering; and (2) he was denied access to the courts because prison officials threatened him for intending to take legal action. Pellegrino's first contention is insufficient to constitute a deprivation of Pellegrino's right to bodily privacy. See Michenfelder, 860 F.2d at 334. Pellegrino's second contention also fails to state a constitutional violation. See Gaut, 810 F.2d at 925. Accordingly, because Pellegrino's complaint lacks an arguable basis in law, the district court did not abuse its discretion in dismissing it. See Neitzke, 490 U.S. at 325.

AFFIRMED.