Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Pro se state prisoner brought § 1983 action. The United States District Court for the Eastern District of California, Oliver W. Wanger, dismissed action for failure to state a claim. Prisoner appealed. The Court of Appeals held that prisoner was entitled to an opportunity to amend defective complaint.
Vacated and remanded.
Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding.
Before LEAVY, THOMAS, and RAWLINSON, Circuit Judges.
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 9th Cir. R. 36-3.
Dale G. Wills, 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 dismissals under the Prison Litigation Reform Act ("PLRA"), see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we vacate and remand.
The district court properly determined that Wills failed to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), and in light of our three-judge decision in Lopez v. Smith, 160 F.3d 567, 571 (9th Cir.1998), withdrawn, 173 F.3d 749 (9th Cir. Apr.12, 1999). However, because of our subsequent decision in Lopez v. Smith, 203 F.3d 1122, 1127-30 (9th Cir.2000) (en banc), which holds that the PLRA does not overrule
Page 452.
Ninth Circuit law requiring district courts to give a pro se prisoner an opportunity to amend a defective complaint, we vacate and remand for reconsideration in light of Lopez. See id.
Each party shall bear its own costs.
VACATED and REMANDED.