James D. MacIel v. James Gomez, Director M. Pickett, Warden

17 F.3d 395 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. James D. MACIEL, Petitioner-Appellant, v. James GOMEZ, Director; M. Pickett, Warden, et al., Respondents-Appellees. No. 93-55358. United States Court of Appeals, Ninth Circuit. Submitted Feb. 7, 1994. * Decided Feb. 10, 1994. Before: SCHROEDER, CANBY, and WIGGINS, Circuit Judges. 1 MEMORANDUM ** 2 James D. Maciel, a California state prisoner, appeals pro se the district court's sua sponte dismissal of his complaint prior to service of process pursuant to 28 U.S.C. Sec. 1915 (d). The district court initially dismissed Maciel's complaint with leave to amend. After Maciel failed to file an amended complaint, the court dismissed the action. We review the district court's frivolousness determination and the dismissal for failure to file an amended complaint for abuse of discretion. Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992); McKeever v. Block, 932 F.2d 795, 797 (9th Cir.1991). We vacate and remand. 3 A district…