                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 22 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PAMELA KAY SCOTT,                               No. 17-35682

                Plaintiff-Appellant,            D.C. No. 3:17-cv-05619-BHS

 v.
                                                MEMORANDUM*
COLIN HAYES; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                          Submitted November 15, 2017**

Before:      CANBY, TROTT, and GRABER, Circuit Judges.

      Pamela Kay Scott appeals pro se from the district court’s order denying her

application to proceed in forma pauperis (“IFP”) in her 42 U.S.C. § 1983 alleging

claims relating to her criminal sentence. We have jurisdiction under 28 U.S.C.

§ 1291. We review for an abuse of discretion the denial of leave to proceed IFP,


      *
             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).
and de novo a determination that a complaint lacks arguable substance in law or

fact. Tripati v. First Nat’l Bank & Tr., 821 F.2d 1368, 1369 (9th Cir. 1987). We

affirm in part, vacate in part, and remand.

      The district court properly dismissed the claims against the prosecutor

defendants on the basis of prosecutorial immunity. See id. at 1370 (district court

may deny leave to proceed IFP “at the outset if it appears from the face of the

proposed complaint that the action is frivolous or without merit” (citation and

internal quotation marks omitted); see also Cousins v. Lockyer, 568 F.3d 1063,

1068-69 (9th Cir. 2009) (explaining prosecutorial immunity).

      However, the district court did not expressly consider Scott’s claims that

defendants from the Washington Department of Corrections were responsible for

incorrectly recommending that Scott’s sentence should be extended, nor did it

consider whether leave to amend these claims would be appropriate. See Cousins,

568 F.3d at 1069-70 (discussing the constitutional right to be free from wrongful

incarceration, and whether corrections officials were entitled to qualified

immunity); see also Rodriguez v. Steck, 795 F.3d 1187, 1188 (9th Cir. 2015) (“[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

                                           2                                     17-35682
complaint or finds that amendment would be futile.”). We vacate the denial of

leave to proceed IFP, vacate in part the order filed on October 5, 2017 dismissing

plaintiff’s action, and remand for further proceedings as to these defendants only.

      Scott’s motion to file a substitute or corrected brief (Docket Entry No. 11) is

granted. The Clerk shall file the opening brief submitted at Docket Entry No. 13

and strike the opening brief filed at Docket Entry No. 7.

      AFFIRMED in part, VACATED in part, and REMANDED.




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