                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 21 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 HENRY FROMETA GONZALEZ,                          No. 15-16378

                  Plaintiff-Appellant,            D.C. No. 3:15-cv-00115-RCJ-
                                                  WGC
   v.

 JAMES GREG COX; et al.,                          MEMORANDUM*

                  Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                          Submitted December 14, 2016**

Before:       WALLACE, LEAVY, and FISHER, Circuit Judges.

        Former Nevada state prisoner Henry Frometa Gonzalez appeals pro se from

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

retaliation, due process violations, and deliberate indifference to his safety. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for

        *
             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).
failure to state a claim. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

(dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194

(9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm

in part, vacate in part, and remand.

      The district court properly dismissed Gonzalez’s retaliation and failure-to-

protect claims because Gonzalez failed to allege facts sufficient to state a plausible

claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se

pleadings are liberally construed, a plaintiff must still present factual allegations

sufficient to state a plausible claim for relief); see also Farmer v. Brennan, 511

U.S. 825, 847 (1994) (a prison official is deliberately indifferent only if he “knows

of and disregards an excessive risk to inmate . . . safety”); Starr v. Baca, 652 F.3d

1202, 1207-8 (9th Cir. 2011) (requirements for establishing supervisory liability);

Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (setting forth elements of

retaliation claim in prisoner context).

      The district court properly dismissed Gonzalez’s due process claims arising

from his placement in segregation because Gonzalez failed to allege facts sufficient

to state a claim. However, dismissal without leave to amend was an abuse of

discretion because Gonzalez could have cured the complaint’s deficiencies by

                                           2                                     15-16378
alleging that defendants failed to provide him with some notice of the charges

against him and an opportunity to present his views. See Weilburg v. Shapiro, 488

F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to

amend is proper only if it is absolutely clear that the deficiencies of the complaint

could not be cured by amendment.” (citation and internal quotation marks

omitted)); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting

forth standard of review). We do not address the merits of Gonzalez’s due process

claim arising from his transfer to a maximum security prison, which the district

court should address in the first instance.

      Accordingly, we vacate the judgment in part and remand to the district court

with instructions to provide Gonzalez with an opportunity to file an amended

complaint as to the due process claims arising from his placement in segregation,

and to address the merits of the due process claim arising from Gonzalez’s transfer

to maximum security prison.

      We do not consider documents or facts not presented to the district court.

See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts

not presented to the district court are not part of the record on appeal.”).




                                              3                                15-16378
All pending requests and motions are denied.

AFFIRMED in part, VACATED in part, and REMANDED.




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