Guillermo Rodriguez v. J. Steck, individual

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO RODRIGUEZ,
Plaintiff-Appellant,
v.
J. STECK, individual and official
capacity; B. SPEER, individual and
official capacity; B. MUMMERT,
individual and official capacity; L.
WESTPHAL, individual and official
capacity; J. REED, individual and
official capacity; J. JAVAUX,
individual and official capacity; R.
VILES, individual and official
capacity; S. JOHNSON, individual and
official capacity; M. ROCHA; E.
VALENZUELA, Warden, individual
and official capacity; K. J. ALLEN,
individual and official capacity; R.
L. BRIGGS, individual and official
capacity; and JEFFREY BEARD,
individual and official capacity,
Defendants-Appellees.
No. 15-55654
D.C. No.
2:15-cv-02287-
VAP (JEM)
ORDER
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding

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RODRIGUEZ V. STECK 2
Submitted to Motions Panel
July 28, 2015
Filed August 6, 2015
Before: Mary M. Schroeder, William C. Canby, Jr.,
and Alex Kozinski, Circuit Judges.
SUMMARY*
Prisoner Civil Rights
The panel vacated the district court’s order denying a
request to file an action in forma pauperis, and remanded.
Plaintiff brought a complaint under 42 U.S.C. § 1983
against officials of the California Department of Corrections
and Rehabilitation, alleging violations of his Eighth
Amendment rights. The district court denied plaintiff leave
to proceed in forma pauperis because it found that the
complaint was frivolous, malicious, or failed to state a claim.
This disposition operated as a dismissal of the complaint
under 28 U.S.C. § 1915(e).
The panel noted that a district court’s denial of leave to
proceed in forma pauperis is an abuse of discretion unless the
district court first provides a plaintiff leave to amend the
complaint or finds that amendment would be futile. The
panel determined that in this case, plaintiff may be able to
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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RODRIGUEZ V. STECK 3
cure the defects in his complaint by alleging more facts.
Accordingly, the panel vacated and remanded for further
proceedings.
COUNSEL
Guillermo Rodriguez, pro se, Maywood, California, Plaintiff-
Appellant.
No appearance for Defendants-Appellees.
ORDER
Guillermo Rodriguez appeals pro se the district court’s
order denying his request to file the action in forma pauperis.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review for abuse of discretion the district court’s denial of
leave to proceed in forma pauperis. Tripati v. First Nat’l
Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). We
vacate and remand.
Rodriguez brought a complaint under 42 U.S.C. § 1983
against officials of the California Department of Corrections
and Rehabilitation, alleging violations of his Eighth
Amendment rights. The district court denied Rodriguez
leave to proceed in forma pauperis because it found that the
complaint was frivolous, malicious, or failed to state a claim.
This disposition operated as a dismissal of the complaint
under 28 U.S.C. § 1915(e). See O’Neal v. Butler, 531 F.3d
1146, 1153 (9th Cir. 2008).

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RODRIGUEZ V. STECK 4
We have held that a district court’s denial of leave to
proceed in forma pauperis is an abuse of discretion unless
the district court first provides a plaintiff leave to amend the
complaint or finds that amendment would be futile. See
Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per
curiam) (“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 prior to
dismissal of the action.”). In this case, the district court
found that Rodriguez failed to state a claim because he had
not alleged specific threats to his safety or facts sufficient to
show that the defendants were deliberately indifferent to a
risk of harm to him. Rodriguez may be able to cure these
defects in the complaint by alleging more facts. Accordingly,
we vacate and remand for further proceedings.
All pending motions are denied as moot.
VACATED and REMANDED.

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