                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 23 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


HAROLD HUNTER,                                   No. 16-55021

               Plaintiff - Appellant,            D.C. No. 2:14-cv-09860-MMM-JC

 v.
                                                 MEMORANDUM*
DANIELLE HEMPLE, et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                   Margaret M. Morrow, District Judge, Presiding

                              Submitted June 14, 2016**

Before:        BEA, WATFORD, and FRIEDLAND, Circuit Judges.

      Harold Hunter, a California state prisoner, appeals pro se from the district

court’s order denying his application to proceed in forma pauperis in his 42 U.S.C.

§ 1983 action alleging constitutional claims. We have jurisdiction under

28 U.S.C. § 1291. We review for an abuse of discretion the denial of leave to

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
proceed in forma pauperis. Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368,

1369 (9th Cir. 1987). We vacate and remand.

      The district court properly concluded that Hunter’s complaint failed to state

a claim. See id. at 1370. However, the district court did not have the benefit of our

recent decision in Rodriguez v. Steck, 795 F.3d 1187, 1188 (9th Cir. 2015) (order),

which explained that “a district court’s denial of leave to proceed in forma pauperis

is an abuse of discretion unless the district court first provides a plaintiff leave to

amend the complaint or finds that amendment would be futile.” Here, the district

court did not address whether amendment of Hunter’s complaint would be futile

and did not give Hunter leave to amend. Moreover, it is not absolutely clear that

the deficiencies in Hunter’s due process claim against defendant Daniel could not

be cured by amendment. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir.

1995) (“Unless it is absolutely clear that no amendment can cure the defect ..., a

pro se litigant is entitled to notice of the complaint’s deficiencies and an

opportunity to amend prior to dismissal of the action.”). Accordingly, we vacate

and remand for the district court to redetermine Hunter’s entitlement to in forma

pauperis status after Hunter files an amended complaint.

      All outstanding motions and requests are denied.

      VACATED AND REMANDED.


                                            2                                      16-55021
