Holestine

MEMORANDUM **

Ernest Kelly Holestine, a California state prisoner, appeals pro se the district court’s dismissal of his 42 U.S.C. § 1983 action for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order), and we affirm in part, vacate in part and remand.

We agree with the district court that Holestine failed to state a claim of discrimination on the basis of disability. See Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir.1994).

We do not agree, however, that there are no facts Holestine could allege to establish the likelihood of a substantial and immediate threat that he may be transferred back to general population. See Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir.), cert. denied, — U.S.-, 122 S.Ct. 667 , 151 L.Ed.2d 581 (2001). Because the district court did not provide Holestine with an explanation of his complaint’s deficiencies and an opportunity to amend his complaint and also failed to address this claim in its dismissal order, we vacate the district court’s dismissal of this claim and remand so that Holestine may be given an opportunity to amend his complaint. See…

Dissenting.

*373 Upon review of the complaint, I conclude that Holestine failed to allege a claim for injunctive relief and that the district court properly dismissed his action. Accordingly, I dissent.