                                                                              FILED
                            NOT FOR PUBLICATION                                MAR 23 2015

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



                            FOR THE NINTH CIRCUIT

MICHAEL OSTER,                                   No. 13-15791

              Plaintiff - Appellant,             D.C. No. 2:12-cv-01264-JAM-AC

  v.
                                                 MEMORANDUM*
COUNTY OF SOLANO; SOLANO
COUNTY SHERIFF’S DEPARTMENT;
DOES, 1 through 50, inclusive,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                       Argued and Submitted March 10, 2015
                            San Francisco, California

Before: BERZON, BYBEE, and OWENS, Circuit Judges.

       Plaintiff-Appellant Michael Oster appeals the district court’s dismissal of his

First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.

       The district court properly dismissed Oster’s claim of municipal liability


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
under Monell v. Department of Social Services, 436 U.S. 658 (1978), and did not

abuse its discretion in denying leave to amend that claim. Oster failed to allege

any facts that would plausibly support his claim of “an unofficial yet distinct

departmental policy” allowing supervising officers to act unlawfully, and he has

not shown that he could cure this deficiency if given an additional opportunity.

      The district court abused its discretion, however, in declining to give Oster

leave to amend his First Amendment retaliation claim on the ground that any

further amendment would be futile. As the district court acknowledged, Oster

could have cured the pleading’s defect—that is, the pleading’s vagueness as to the

content of his letters to elected officials—had he simply attached the letters to his

First Amended Complaint. Because Oster can still cure this deficiency by

attaching the letters to a proposed second amended complaint, and because neither

we nor the district court is in a position to say before seeing the letters whether

they plausibly indicate that Oster’s speech was on a matter of public concern, we

cannot say that amendment is necessarily futile. It was thus improper for the

district court to deny leave to amend this claim without first reviewing the intended

amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th

Cir. 2003).




                                           2
      Accordingly, we affirm the district court’s dismissal with prejudice of

Oster’s Monell claim, reverse the district court’s denial of leave to amend Oster’s

First Amendment retaliation claim, and remand for proceedings consistent with

this disposition.1

      AFFIRMED in part; REVERSED in part.

      Each party shall bear its own costs on appeal.




      1
        We note that if Oster claims in his second amended complaint that
Defendants retaliated against him by causing him to be wrongfully arrested and
prosecuted for workers’ compensation fraud, he must plausibly allege that
Defendants lacked probable cause to believe Oster had committed workers’
compensation fraud. Cf. Lacey v. Maricopa Cnty., 693 F.3d 896, 917 n.8, 918–920
(9th Cir. 2012) (en banc) (noting that lack of probable cause is a required element
of a false arrest and malicious prosecution claim).

                                         3
