Lopez v. Peterson

44 F. App'x 870

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 19, 2002
• Docket: No. 01-16900; D.C. No. CV-98-02111-LKK/PAN
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Andrew Rick Lopez appeals pro se the district court’s 41(b) dismissal of his 42 U.S.C. § 1983 action alleging that prison officials violated his constitutional rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion the district court’s dismissal, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.1995) (per curiam) (dismissal for violation of local rule), and the district court’s denial of a motion for appointment of counsel, Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986).

The district court determined that Lopez’s first amended complaint stated a claim. Lopez later moved for leave to amend to add new defendants and claims. The district court granted Lopez leave to amend, cautioning that the claims in his second amended complaint should relate to the claims in his first amended complaint. In the same order, the district court dismissed Lopez’s first amended complaint.

The district court erred by dismissing Lopez’s first amended complaint, after expressly holding that it stated a claim. See Ghazali, 46 F.3d at 53. Accordingly, we vacate the district court’s dismissal and remand for reinstatement of the first amended complaint.

The district court did not abuse its discretion by denying Lopez’s motion for appointment of counsel because he failed to show exceptional circumstances. See Wilborn, 789 F.2d at 1331,

In light of our ruling, we need not reach any other issues raised in this appeal.

VACATED and REMANDED.

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 Ninth Circuit Rule 36-3.