Gregory Barren, Sr. v. T. Robinson , 540 F. App'x 810 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORY D. BARREN, Sr., No. 12-15822
Plaintiff - Appellant, D.C. No. 2:11-cv-00650-RLH-
CWH
v.
T. ROBINSON, Officer P7466; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Submitted September 24, 2013 **
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Gregory D. Barren, Sr., appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging constitutional violations in
connection with his arrest for domestic violence. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo. Romano v. Bible, 169 F.3d 1182, 1185 (9th
Cir. 1999). We vacate and remand.
Although the district court properly dismissed Barren’s complaint because
Barren named the police officer defendants only in their official capacities while
failing to allege a municipal policy or custom, it would not be apparent to a pro se
litigant that dismissal without prejudice would allow amendment. Construing
Barren’s request for reinstatement as a request for leave to amend, we remand for
the district court to consider the request. See Lopez v. Smith, 203 F.3d 1122, 1130
(9th Cir. 2000) (en banc) (district court must “grant leave to amend even if no
request to amend the pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other facts” (citation and internal
quotation marks omitted)); cf. Soffer v. City of Costa Mesa, 798 F.2d 361, 363 (9th
Cir. 1986) (construing pro se complaint as suing municipal employee defendants in
their personal capacities, reasoning that suit against the individuals is otherwise
unnecessary because a § 1983 suit may be brought directly against a municipality).
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
2 12-15822