Baumer v. Smith

Full title: William BAUMER, Plaintiff-Appellant, v. George SMITH; E. Booke; E…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jan 25, 2002

25 F. App'x 666 (9th Cir. 2002)

Opinion

25 Fed.Appx. 666 (9th Cir. 2002) William BAUMER, Plaintiff-Appellant, v. George SMITH; E. Booke; E. Emerson; T.D. Simpson; J.A. Yates; W.J. Phillips, Defendants-Appellees. No. 99-15090. D.C. No. CV-97-5168-REC. United States Court of Appeals, Ninth Circuit. January 25, 2002

Argued and Submitted Oct. 17, 2001.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Eastern District of California, Robert E. Coyle, Chief District Judge, Presiding.

Before BEEZER, TROTT, and TALLMAN, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 TH CIR. R. 36-3.

We reverse the district court's sua sponte dismissal of Baumer's First Amended Complaint. The record is insufficient to make a legal determination regarding the applicability of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). Upon remand, the district court shall grant Baumer leave to file a second amended complaint and send him a copy of his First Amended Complaint.

The district court's order denying Baumer's motion for appointment of counsel is affirmed. It is within the district court's discretion to decide whether to appoint counsel for Baumer upon remand.

Page 667.

REVERSED, in Part, AFFIRMED, in Part, and REMANDED.

Each party shall bear its own costs.