977 F.2d 594
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.James Edward WAGNER, Petitioner-Appellant,v.Leonard A. BROSNAN, Clerk of Court, Respondent-Appellee.
No. 91-56214.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 21, 1992.*Decided Oct. 14, 1992.

Before CHOY, SNEED and SKOPIL, Circuit Judges.


1
MEMORANDUM**


2
James Edward Wagner appeals the district court's refusal to allow him to file a civil rights action without prepayment of filing fees.   Wagner's proffered complaint alleges that he is entitled to witness fees for testifying in criminal trials when he was incarcerated in 1982.   We agree with the district court that Wagner's complaint is frivolous, and, accordingly, the complaint was properly refused.


3
A district court may deny an indigent litigant's application to file an action when the court determines that the complaint is frivolous or without merit.   Tripati v. First National Bank & Trust, 821 F.2d 1368, 1369 (9th Cir.1987).   A pro se litigant must be given an opportunity to amend the complaint, however, unless it is absolutely clear that the deficiency cannot be cured by amendment.   Id.


4
Wagner seeks witness fees based on  Demarest v. Manspeaker, 111 S.Ct. 599 (1991).   There, the Supreme Court held that a prisoner testifying at a federal trial is entitled to witness fees pursuant to 28 U.S.C. § 1821.   Id. at 601.   Shortly after that decision, Congress responded by amending section 1821 to prohibit, except for the plaintiff in Demarest, payment of witness fees to an incarcerated person.   Pub.L. 102-27, Title II, § 102, 105 Stat. 136.   Accordingly, Wagner's complaint "lacks an arguable basis in law or in fact" and is therefore frivolous.   See Neitzke v. Williams, 490 U.S. 319, 325 (1989).   The district court correctly concluded that no amendment will cure the deficiency.


5
AFFIRMED.



*
 The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument.   Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4


**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


