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Schwarz v. California Department of Corrections

*fn* submitted: October 13, 1993.

BARBARA SCHWARZ, PLAINTIFF-APPELLANT,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, SAN QUENTIN PRISON WARDEN AND STAFF, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-92-04119-EFL. Eugene F. Lynch, District Judge, Presiding

Before: Beezer, Kozinski, and Kleinfeld, Circuit Judges.

MEMORANDUM

Barbara Schwarz appeals pro se the district court's sua sponte dismissal of her action prior to service of process. We construe the district court's dismissal of an action prior to service of process as a dismissal under 28 U.S.C. § 1915(d). See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). We have jurisdiction under 28 U.S.C. § 1291. We review the district court's dismissal under 28 U.S.C. § 1915(d) for an abuse of discretion, see Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1734 (1992), and we affirm.

The district court may dismiss sua sponte as frivolous in forma pauperis complaints where the claims raised lack an arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 324-25, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989). Schwarz filed a complaint alleging that various California corrections officials had violated 42 U.S.C. § 1983 and the Freedom of Information Act though their failure to respond to her queries regarding the whereabouts of a Mark Rathbun, allegedly incarcerated at San Quentin in 1989. Here, the district court thoroughly examined Schwarz's possible claims under the facts alleged in her complaint and rejected them as not having an arguable basis in law or fact. We agree with the district court that to the extent any of these claims may have some basis in law, Schwarz might have stated a claim under the California Information Practices Act, see Cal. Civ. Code § 1798, which fails to provide an independent basis for federal court jurisdiction. See 28 U.S.C. §§ 1330-1367. Accordingly, for this reason and those stated in the district court's order dismissing this action, we affirm. See Neitzke, 490 U.S. at 324-25.

AFFIRMED.

Disposition

AFFIRME ...


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