Jason Barnard v. U.S. Government , 635 F. App'x 387 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON BARNARD, No. 14-55825
Plaintiff - Appellant, D.C. No. 5:14-cv-00833-GW-JC
v.
MEMORANDUM*
U.S. GOVERNMENT,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Jason Barnard appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging an Eighth 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).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.
2 14-55825