Kevin Fernandez v. Bert Jackson

MEMORANDUM

Kevin Lynn Fernandez, a Nevada state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo. Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915 (e)(2)(B)(ii)). We affirm in part, reverse in part, vacate in part, and remand.

The district court properly dismissed Fernandez’s retaliation claim against all defendants, except Jackson and Marikami, because Fernandez failed to allege facts sufficient to show that defendants other than Jackson and Marikami labeled him as mentally ill because of any protected conduct. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a retaliation claim in the prison context). However, because Fernandez was not given an opportunity to amend this claim, Fernandez should be granted leave to amend to cure any deficiencies. See Weilburg, 488 F.3d at 1205 (“Dismissal of a pro se complaint without leave to amend is proper only…