Omar Gay v. Mathew Cate

MEMORANDUM

California state prisoner Omar Sharrieff Gay appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that defendants violated Gay’s Eighth Amendment, due process and equal protection rights. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s dismissal under 28 U.S.C. § 1915A for failure to state a claim, Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.2007), and for an abuse of discretion the district court’s dismissal of a complaint without leave to amend, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc). We vacate and remand.

The district court dismissed Gay’s original complaint without first providing him with notice of the deficiencies and an opportunity to amend with the benefit of that notice, and also did not address Gay’s equal protection claim that he is “similarly situated” to mentally ill prisoners who urinate or soil on themselves and his claim for failure to protect him from his cellmates. Accordingly, we vacate the judgment and remand to the district court with instructions to address the equal protection and failure-to-protect claims and provide Gay with an…