Felton

MEMORANDUM *

Guy Felton sued the city of Reno and several of its employees under 42 U.S.C. § 1983 . The district court dismissed claims I-IV of Felton’s complaint without granting leave to amend. Felton argues (1) that the dismissal was erroneous, and (2) that the district court abused its discretion by denying leave to amend. We reverse and remand.

As the parties are familiar with the facts, we recite them only as necessary. We review de novo a dismissal for failure to state a claim. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001), amended by 275 F.3d 1187 (9th Cir.2001). We review a denial of leave to amend for abuse of discretion. Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.2000), amended by 234 F.3d 428 (9th Cir.2000).

The dismissal of claims I-IV was arguably proper because the allegations as pleaded in the complaint were merely con-clusory, see Sprewell, 266 F.3d at 988 , but Felton was capable of stating more specific allegations and in his opposition papers asked for leave to amend in case the district court was inclined to grant Defendants’ motion to dismiss. When it granted the motion to dismiss, the district court abused…

concurring.

I concur in the judgment of the court. Rather than reverse the district court’s decision on the leave to amend motion, I would reverse the district court’s dismissal of the first four claims of the complaint. Claims I-IV as originally drafted should be allowed to go forward.

The Supreme Court in Swierkiewicz v. Sorema, 534 U.S. 506 , 122 S.Ct. 992 , 152 L.Ed.2d 1 (2002), emphasizes the importance of a liberal notice pleading system under Fed.R.Civ.P. 8(a) that gives fair notice of the basis for petitioner’s claims. The Supreme Court states, “[i]f a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding. Moreover, claims lacking merit may be *839 dealt with through summary judgment under Rule 56. The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.” 534 U.S. at 514 .

The district court held that the complaint was conclusory. However, under the liberal requirements of notice pleading, the complaint clearly put the defendants on notice. The…

dissenting.

I respectfully dissent. In this case, the district court dismissed some of plaintiffs claims against some of the defendants, but allowed the litigation to proceed on other portions of the plaintiffs complaint. A discovery schedule was then established, *840 which contained a deadline for making motions to amend the pleadings. The parties then filed a stipulation which provided that: “The parties hereby stipulate and agree that following the Court’s Order granting in part and denying in part the motion to dismiss, the remaining claim shall be limited to a facial challenge to the subject statute only.”

Given the fact that the entire action was not dismissed, that the plaintiff had an opportunity during the litigation to amend his pleading, and that the plaintiff stipulated to a narrowing of issues in the litigation without reserving any claims, I cannot agree that the district court committed reversible error by not sua sponte granting specific leave to amend in its initial order dismissing some of the claims.

This case is distinguishable from those cases in which we have held that a district court must grant leave to amend when it dismissing an action. See, e.g., Lee…