David Roy Stilwell v. Clark County, Nevada

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ROY STILWELL, et al.,
Plaintiffs - Appellants,
v.
CLARK COUNTY, NEVADA, et al.,
Defendants - Appellees.
No. 12-15603
D.C. No. 2:11-cv-1549-PMP-VCF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted November 7, 2013
San Francisco, California
Before: REINHARDT and WATFORD, Circuit Judges, and LYNN, District
Judge.**
This Court reviews de novo the district court’s decision to dismiss
Appellants’ Complaint for failure to state a claim. See Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008). For the reasons given by the
FILED
NOV 27 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.

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district court, dismissal of Appellants’ Complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure was not erroneous; however, the district court
abused its discretion in dismissing the case with prejudice, without granting
Appellants leave to amend.
The district court determined that further amendment would be futile, based
on the allegations contained in Appellants’ proposed First Amended Complaint. It
did not, however, provide any specific explanation for that conclusion, but, rather,
merely referenced the Defendants’ Motions to Dismiss. Further, the dismissal with
prejudice was contrary to the district court’s prior assurance that Appellants would
be “allow[ed] leave to amend the [C]omplaint to cure whatever deficiencies are
present,” and would not be “married” to their proposed First Amended Complaint
for purposes of the district court’s determination of the propriety of amendment.
Under these circumstances, the failure to allow amendment constituted an abuse of
discretion. See Gompper v. VISX, Inc., 298 F.3d 893, 897-98 (9th Cir. 2002).
We accordingly vacate the district court’s judgment dismissing Appellants’
Complaint with prejudice. This case is remanded for further proceedings
consistent with this disposition.
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VACATED AND REMANDED.
Costs awarded to plaintiffs.
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