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 2017-08

Leon-Michael Tholson v. Kevin Dillon , 695 F. App'x 321 ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEON-MICHAEL THOLSON,                           No. 16-36036
Plaintiff-Appellant,            D.C. No. 3:16-cv-00243-RRB
v.
MEMORANDUM*
KEVIN L. DILLON; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted August 9, 2017**
Before:      SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Alaska state prisoner Leon-Michael Tholson appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging retaliation and
deliberate indifference to his safety. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Resnick v. Hayes,
    213 F.3d 443
    , 447 (9th Cir. 2000)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(dismissal under 28 U.S.C. § 1915A); Barren v. Harrington,
    152 F.3d 1193
    , 1194
(9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)). We vacate and
remand.
Although the district court properly concluded that Tholson failed to state
deliberate indifference and retaliation claims, the district court abused its discretion
in dismissing Tholson’s action without leave to amend because it is not absolutely
clear that the deficiencies could not be cured by amendment. See Lucas v. Dep’t of
Corr.,
    66 F.3d 245
    , 248 (9th Cir. 1995) (“Unless it is absolutely clear that no
amendment can cure the defect, . . . a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to dismissal of the
action.”); Lopez v. Smith,
    203 F.3d 1122
    , 1130 (9th Cir. 2000) (setting forth
standard of review). We vacate the judgment and remand for the district court to
provide Tholson with an opportunity to amend.
In light of our disposition, we do not consider the district court’s order
denying Tholson’s motion for preliminary injunctive relief.
VACATED and REMANDED.
2                                     16-36036