FILED
NOT FOR PUBLICATION NOV 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES DAVID KARNATH, No. 09-35822
Plaintiff - Appellant, D.C. No. 2:08-cv-01002-RSM
v.
MEMORANDUM *
TRACY DANIELS,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted November 16, 2010 **
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Washington state prisoner James Karnath appeals pro se from the district
court’s judgment dismissing with prejudice his 42 U.S.C. § 1983 action alleging an
excessive force claim, and from its order striking as moot his motion to amend.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
*
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).
court’s dismissal for lack of standing. Colwell v. Dep’t of Health and Human
Servs., 558 F.3d 1112, 1121 (9th Cir. 2009). We review for abuse of discretion
dismissal without leave to amend. Leadsinger, Inc. v. BMG Music Publ’g, 512
F.3d 522, 532 (9th Cir. 2008). We vacate and remand.
The district court correctly identified critical deficiencies in the operative
complaint, and determined that the record showed that Karnath was no longer
housed at the facility where the sole defendant—against whom Karnath sought
only injunctive relief—worked. However, the district court abused its discretion
when it rejected Karnath’s motion for leave to amend on the ground that it was
moot. See Fed. R. Civ. P. 15(a); see also Lucas v. Dep’t of Corr., 66 F.3d 245, 248
(9th Cir. 1995). The court did not discuss the fact that Karnath’s proposed second
amended complaint added a claim for money damages, analyze whether
amendment would have been futile, address Karnath’s allegations that he could not
file his proposed second amended complaint earlier due to lack of access to his
legal papers, point to any harm to defendant, or explain why the matter was moot.
See Lucas, 66 F.3d at 248. Thus, we vacate the judgment and remand for further
proceedings consistent with this disposition.
We grant Karnath’s request for judicial notice of pages omitted from his
opening brief. Karnath’s remaining motions are denied as moot.
2 09-35822
The parties shall bear their own costs on appeal.
VACATED AND REMANDED.
3 09-35822