Austin v. Maricopa County Community College District

57 F. App'x 758

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 2003
• Docket: No. 02-16957; D.C. No. CV-01-01571-ROS
• Status: Published

Opinion

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 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 and remand with instructions that Austin be given an opportunity to amend his retaliation claim.

The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.