Wills v. Terhune

4 F. App'x 451

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2001
• Docket: No. 99-16069; D.C. No. CV-98-06052-CWW
• Status: Published

Opinion

MEMORANDUM²

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§ 1915(e)(2)(B)(ii), and in light of our three-judge decision in Lopez v. Smith, 160 F.3d 567, 571 (9th Cir.1998), withdrawn, 173 F.3d 749 (9th Cir. Apr.12, 1999).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 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.

2 . 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.