87 F3d 1320 Keer v. White

87 F.3d 1320

Alfonso Geraldo KEER, Plaintiff-Appellant,
v.
Theo WHITE; S.J. Vance; S.B. Coffee; J.P. Rempel; R.
Hogland; L.A. Sandoval; H.M. Sharp, S. McDonal,
Defendants-Appellees.

No. 95-16701.

United States Court of Appeals, Ninth Circuit.

Submitted June 11, 1996.*
Decided June 19, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: CANBY, NOONAN, and LEAVY, Circuit Judges.

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1

MEMORANDUM**

2

Alfonso Geraldo Keer, a California state prisoner, appeals pro se the district court's 28 U.S.C. § 1915(d) dismissal of his 42 U.S.C. § 1983 civil rights action against defendant prison officials. Keer alleged that the defendants violated his constitutional rights by denying him access to the law library in retaliation for filing lawsuits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

3

Although Keer failed to allege facts showing that he suffered an "actual injury" as required under Vandelft v. Moses, 31 F.3d 794, 797 (9th Cir.1994), cert. denied, 116 S.Ct. 91 (1995) and Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989), such a defect is curable by amendment, see Sands, 886 F.2d at 1171-72. Because the district court failed to provide Keer with an opportunity to amend his complaint to cure this defect, we vacate the district court's judgment and remand for further proceedings. See id. at 1172; see also Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.1984) (stating that a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend).

4

On remand, the district court should consider whether Keer raises a retaliation claim under Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985).

VACATED AND REMANDED.1

*

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Keer's request for an extension of time to prepare for oral argument is denied

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Keer's motion styled as a motion for "summary judgment" is denied