Welch

MEMORANDUM

Vernon Dave Welch, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to file an amended complaint. We have jurisdiction under 28 U.S.C. § 1291 . We review for an abuse of discretion, Ordonez v. Johnson, 254 F.3d 814, 815-16 (9th Cir.2001) (per curiam), and we vacate and remand.

The district court dismissed Welch’s action for failure to amend his complaint after the court dismissed his complaint with leave to amend. However, Welch filed an amended complaint that the district court “deemed timely.” Dist. Ct. Dkt. 13. Therefore, the district court’s dismissal of Welch’s action on this basis was improper. See Ordonez, 254 F.3d at 816 (district court abused its discretion by dismissing pro se prisoner’s action for failure to file a timely amended complaint because the prisoner constructively filed an amended complaint before the filing deadline).

Moreover, contrary to its dismissal order, the district court’s judgment states that the court dismissed Welch’s complaint for failure state a claim. However, there is no indication in the record that the district court analyzed Welch’s second amended…