Felton v. Hoover

56 F. App'x 837

Opinions

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 its discretion by not granting Fel-ton leave to amend. Though Felton should have been more diligent thereafter in seeking clarification from the district court or in moving formally for leave, with a proposed form of amended complaint, the district court’s silence in the face of Felton’s informal request for leave to amend amounted to a denial. See Knevel-baard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 983 (9th Cir.2000). Leave to amend, whether requested or not, should be granted unless amendment would be futile. Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986). There is no showing of futility on the record.

Nor do Defendants show undue prejudice. They fail to show how the vacating of Felton’s depositions has prejudiced them. Defendant Mayor Jeff Griffin’s assertion of campaign prejudice is completely speculative, and by now the election has passed, in any event. Absent undue prejudice, there is no basis for denying leave to amend, even if there has been undue delay (an issue we need not decide). See Hurn v. Retirement Fund Trust of Plumbing, Heating & Piping Indus. of Southern Cal., 648 F.2d 1252,1254 (9th Cir.1981).

REVERSED 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.