James Green v. Romeo Aranas ( 2015 )

FILED
NOT FOR PUBLICATION JUL 07 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES HENRY GREEN, No. 14-16249
Plaintiff - Appellant, D.C. No. 3:14-cv-00245-RCJ-VPC
v.
MEMORANDUM*
ROMEO ARANAS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Nevada state prisoner James Henry Green appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various
constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We
*
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, and denies Cannon’s request for oral argument, set forth in
his opening brief. See Fed. R. App. P. 34(a)(2).
review de novo a district court’s dismissal under 28 U.S.C. § 1915A for failure to
state a claim, Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007), and for an
abuse of discretion the district court’s dismissal of a complaint without leave to
amend, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). We vacate
and remand.
The district court dismissed Green’s original complaint, which it construed
as raising only an Eighth Amendment deliberate indifference claim, without first
providing him with notice of the deficiencies and an opportunity to amend with the
benefit of that notice. The district court did not address Green’s retaliation and
procedural due process claims relating to the discontinuation of medical treatment
of his ichthyosis. Accordingly, we vacate the judgment and remand to the district
court with instructions to address the retaliation and procedural due process claims
and to provide Green with an opportunity to amend his deliberate indifference
claim. See Weilburg, 488 F.3d at 1205 (“Dismissal of a pro se complaint without
leave to amend is proper only if it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.” (citation and internal quotation
marks omitted)); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)
(“[B]efore dismissing a pro se complaint the district court must provide the litigant
2 14-16249
with notice of the deficiencies in his complaint in order to ensure that the litigant
uses the opportunity to amend effectively.”).
VACATED and REMANDED.
3 14-16249