Rodney T. Kralovetz v. Marion Spearman;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY T. KRALOVETZ,
Plaintiff-Appellant,
v.
MARION SPEARMAN; et al.,
Defendants-Appellees.
No. 16-15615
D.C. No. 3:16-cv-00299-WHA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Rodney T. Kralovetz, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging claims
arising out of the investigation of allegedly false allegations that he sexually
assaulted another inmate. We have jurisdiction under 28 U.S.C. § 1291. We
* 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).
FILED
MAR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A.
Belanus v. Clark, 796 F.3d 1021, 1024 (9th Cir. 2015). We vacate and remand.
The district court dismissed Kralovetz’s action for failure to state a due
process claim after considering the allegations in the complaint but not the
attachments to the complaint, and denied leave to amend as futile. However, we
conclude it is not absolutely clear that amendment would be futile. 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 prior to dismissal of the
action.”). For instance, Kralovetz alleges, including in his motion for
reconsideration, that he was held near naked in a booth near an open window in 30
to 40 degree weather for close to three hours, after having been taken from a
medical triage unit where he was registering a lower than normal body
temperature. We vacate the judgment and remand for the district court to provide
Kralovetz with leave to amend his complaint.
VACATED and REMANDED.

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