                                                                            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                            NOT FOR PUBLICATION                             MAR 03 2016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.




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