                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                        MAR 20 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 RODNEY T. KRALOVETZ,                              No. 16-15615

                  Plaintiff-Appellant,             D.C. No. 3:16-cv-00299-WHA

   v.
                                                   MEMORANDUM*
 MARION SPEARMAN; et al.,

                  Defendants-Appellees.

                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                             Submitted March 8, 2017**

Before:       LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

        Rodney T. Kralovetz, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging claims

arising out of the investigation of allegedly false allegations that he sexually

assaulted another inmate. We have jurisdiction under 28 U.S.C. § 1291. We



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A.

Belanus v. Clark, 796 F.3d 1021, 1024 (9th Cir. 2015). We vacate and remand.

      The district court dismissed Kralovetz’s action for failure to state a due

process claim after considering the allegations in the complaint but not the

attachments to the complaint, and denied leave to amend as futile. However, we

conclude it is not absolutely clear that amendment would be futile. 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.”). For instance, Kralovetz alleges, including in his motion for

reconsideration, that he was held near naked in a booth near an open window in 30

to 40 degree weather for close to three hours, after having been taken from a

medical triage unit where he was registering a lower than normal body

temperature. We vacate the judgment and remand for the district court to provide

Kralovetz with leave to amend his complaint.

      VACATED and REMANDED.




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