Donald Gene Henthorn v. United States Internal Revenue Service

24 F.3d 246 73 A.F.T.R.2d 94 -2130 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Donald Gene HENTHORN, Petitioner-Appellant, v. UNITED STATES INTERNAL REVENUE SERVICE, Respondent-Appellee. No. 93-17056. United States Court of Appeals, Ninth Circuit. Submitted May 11, 1994. * Decided May 13, 1994. Before: HUG, D.W. NELSON, and FERNANDEZ, Circuit Judges. 1 MEMORANDUM ** 2 Donald Gene Henthorn, a federal prisoner, appeals pro se the district court's sua sponte dismissal of his petition for a writ of mandamus for lack of jurisdiction. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 . We review for abuse of discretion, Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992), and we affirm. 3 A complaint may be dismissed sua sponte before service of process if it is frivolous. Neitzke v. Williams, 490 U.S. 319, 324 (1989); McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke, 490 U.S.…