John Flowers v. Isidro Baca

MEMORANDUM

John Flowers, a Nevada state prisoner, appeals the district court’s 28 U.S.C. § 1915A decision to dismiss Counts 2 and 3 of his pro se civil rights complaint against various prison physicians and officials. We have jurisdiction under 28 U.S.C. § 1291 and vacate and remand with instructions.

1.Regardless of whether the district court erred in dismissing the complaint as written, it abused its discretion in dismissing the claims without affording Flowers an opportunity to amend them. In the context of a pro se pleading, we have stated:

Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).

Here, the district court did not determine that Counts 2 or 3, which purport to allege violations of the Eighth Amendment, could not be cured. Flowers was a pro se litigant before the district court, and should be granted an opportunity to amend these claims. This will allow him to develop claims generally asserted under the Americans with Disabilities Act and the Fourteenth Amendment, both of which he invoked as jurisdictional bases for his complaint. The district court did not address these claims, presumably…