Montano v. Galaza

137 F. App'x 76

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 2005
• Docket: No. 04-16571; D.C. No. CV-03-05891-REC-DLB
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Mauricio Montano appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1988 action alleging violations of the Fourteenth Amendment and the Americans with Disabilities Act (“ADA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion a dismissal without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc). We vacate and remand.

The district court dismissed Montano’s equal protection and ADA claims under Fed.R.Civ.P. 12(b)(6) because he failed to allege sufficient facts in support. Montano correctly contends that the district court should have granted him leave to amend his complaint. See id. (internal quotation omitted) (“[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.”). Accordingly, we vacate and remand for the district court to allow amendment.

The parties shall bear their own costs on 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 provided by Ninth Circuit Rule 36-3.