Austin v. Maricopa County Community College District

MEMORANDUM **

Jeffery Austin appeals pro se the district court’s judgment dismissing his action alleging discrimination and retaliation against his former employer Maricopa County Community College District (“MCCCD”). We have jurisdiction under 28 U.S.C. § 1291 . We review de novo a district court’s dismissal for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246 , 248 (9th Cir.1997). We affirm in part, vacate in part, and remand.

The district court properly dismissed Austin’s discrimination claim because, in his amended complaint, Austin conceded *759 that he failed to exhaust administrative remedies. See Karim-Panahi v. Los An-geles Police Dep’t, 839 F.2d 621 , 626 (9th Cir.1988).

The district court properly dismissed Austin’s retaliation claim for failure to state a claim. However, because a pro se litigant should be given leave to amend his complaint if it appears at all possible that he can cure the deficiencies, it was an abuse of discretion to dismiss the retaliation claim without affording Austin at least one opportunity to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc). Accordingly, we vacate the district court’s judgment…