Baron Bement v. James Cox

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                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             APR 20 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
BARON BEMENT,                                    No.   15-17225

              Plaintiff-Appellant,               D.C. No.
                                                 3:12-cv-00475-MMD-WGC
 v.

JAMES G. COX and GREG SMITH,                     MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                            Submitted April 18, 2017**
                             San Francisco, California

Before: D.W. NELSON and IKUTA, Circuit Judges, and BURGESS,*** Chief
District Judge.




      *
             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).
      ***
             The Honorable Timothy M. Burgess, United States Chief District
Judge for the District of Alaska, sitting by designation.
      Baron Bement appeals the district court’s entry of summary judgment in

favor of the Nevada Department of Corrections (NDOC) on his claim under section

504 of the Rehabilitation Act, 29 U.S.C. § 794. Bement also appeals the district

court’s alternative holding, dismissal for failure to state a claim. We have

jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

      The district court erred in granting summary judgment on a ground not

raised in the Appellees’ initial motion because the district court did not give

Bement “notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f); see also

Norse v. City of Santa Cruz, 629 F.3d 966, 972–73 (9th Cir. 2010) (en banc).

Bement was not required to invoke section 504 by name in his complaint. See

Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014) (per curiam).

      The district court also erred in dismissing Bement’s section 504 claim for

failure to state a claim without giving him the opportunity to amend his complaint.

Absent a determination that the complaint “could not possibly be cured by the

allegation of other facts,” the district court was required to grant leave to amend.

See, e.g., Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).

      REVERSED and REMANDED.




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