FILED
NOT FOR PUBLICATION JUL 31 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARRISON S. JOHNSON, No. 13-16752
Plaintiff - Appellant, D.C. No. 1:10-cv-01918-LJO-DLB
v.
MEMORANDUM**
JEFFREY A. BEARD, Secretary of the
California Department of Corrections and
Rehabilitation;* KELLY HARRINGTON,
Warden,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted July 22, 2014***
Before: GOODWIN, CANBY, and CALLAHAN Circuit Judges.
*
Jeffrey A. Beard, Secretary of the California Department of
Corrections and Rehabilitation, is substituted for his predecessor pursuant to Fed.
R. App. P. 43(c)(2).
**
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).
California state prisoner Garrison S. Johnson appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging an equal
protection violation in connection with the election process for the Inmate
Advisory Council. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A, Hamilton v.
Brown, 630 F. 3d 889, 892 (9th Cir. 2011), 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 properly dismissed Johnson’s action because Johnson
failed to allege facts showing that defendants discriminated against him because of
his race. See Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003) (setting
forth requirements for § 1983 equal protection claim based on membership in a
protected class); see also DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th
Cir. 2000) (bare allegations of state action cannot defeat a motion to dismiss;
rather, plaintiff must allege facts showing that defendants acted under color of state
law or authority).
Dismissal without leave to amend was premature, however, because it is not
absolutely clear that the deficiencies of Johnson’s complaint “could not possibly be
cured” by amendment. Lopez, 203 F.3d at 1130. Accordingly, we vacate the
2 13-16752
judgment and remand to allow Johnson an opportunity to file an amended
complaint.
We do not consider issues raised for the first time in the reply brief. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Defendants’ motion for judicial notice, filed on January 21, 2014, is granted.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
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