FILED
NOT FOR PUBLICATION JAN 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HORACE THOMAS, AKA Horace No. 14-16204
Andrew Bell,
D.C. No. 2:14-cv-00619-MMD-
Plaintiff - Appellant, CWH
v.
MEMORANDUM*
MERLE BRUCE, M.D.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Horace Thomas, a.k.a. Horace Andrew Bell, a California state prisoner,
appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983
action alleging an Eighth Amendment violation. 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 a dismissal for failure to state a claim.
Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (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)(B)(ii)). We vacate and remand.
Although the district court properly dismissed Thomas’s complaint because
Thomas failed to allege facts sufficient to state a deliberate indifference claim
relating to his jaw surgery, the district court abused its discretion by dismissing
Thomas’s action without first providing him with an opportunity to amend. 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)); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting
forth standard of review). Accordingly, we vacate the judgment and remand to the
district court with instructions to provide Thomas with an opportunity to file an
amended complaint.
VACATED and REMANDED.
2 14-16204