NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOJO EJONGA-DEOGRACIAS, AKA No. 16-35512
JoJo Ejonga,
D.C. No. 3:15-cv-05784-RJB
Plaintiff-Appellant,
v. MEMORANDUM*
DEPARTMENT OF CORRECTIONS; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Jojo Ejonga-Deogracias, a Washington state prisoner, appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
deliberate indifference to his serious medical needs. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6).
Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We vacate and remand.
The district court properly dismissed Ejonga-Deogracias’s deliberate
indifference claim against the Washington Department of Corrections because this
claim is barred by the Eleventh Amendment. See Taylor v. List, 880 F.2d 1040,
1045 (9th Cir. 1989) (Eleventh Amendment immunity applies to state agencies,
including the department of prisons). However, dismissal of the deliberate
indifference claim without leave to amend was premature because it is not
absolutely clear that the deficiencies in Ejonga-Deogracias’s complaint could not
possibly 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[.]”); 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 for the district court to provide Ejonga-Deogracias an opportunity to
file an amended complaint that names the correct defendants.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
VACATED and REMANDED.
2 16-35512