                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 03 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



PHILLIP JACKSON LYONS,                           No. 11-17124

               Plaintiff - Appellant,            D.C. No. 2:10-cv-00707-JCM-
                                                 LRL
  v.

HOWARD SKOLNIK; et al.,                          MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                           Submitted December 19, 2012 **

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

       Nevada state prisoner Phillip Jackson Lyons appeals pro se from the district

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

constitutional violations. 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 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).
review de novo a district court’s summary judgment, Jones v. Blanas, 393 F.3d

918, 926 (9th Cir. 2004), and for an abuse of discretion the district court’s

dismissal for failure to comply with court orders, Ferdik v. Bonzelet, 963 F.2d

1258, 1260 (9th Cir. 1992), and denial of leave to amend, Chodos v. West Publ’g

Co., 292 F.3d 992, 1003 (9th Cir. 2002). We affirm in part, reverse in part, and

remand.

      The district court properly granted summary judgment on Lyons’s

constitutional claims related to the denial of extra toilet paper because Lyons failed

to raise a genuine dispute of material fact as to whether the prison’s policy of

providing inmates with only one roll of toilet paper a week, and requiring inmates

to purchase extra toilet paper should they wish to exceed this allotment, amounted

to the denial of the “minimal civilized measure of life’s necessities.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994).

      However, the district court abused its discretion in dismissing the remaining

counts in Lyons’s complaint for failure to comply with the court’s order to amend

and denying Lyons leave to file an amended complaint as there was no indication

of undue delay, bad faith, or dilatory motive on Lyons’s part, or that defendants,

who had not yet filed a response to the complaint, would suffer undue prejudice

through the filing of an amended complaint. See Smith v. Pac. Props. & Dev.


                                           2                                       11-17124
Corp., 358 F.3d 1097, 1101 (9th Cir. 2004) (leave to amend should be freely given

in the absence of reasons such as undue delay, bad faith, repeated failure to cure

deficiencies by previously allowed amendments, or undue prejudice to the

opposing party); see also Ferdik, 963 F.2d at 1260-61 (listing factors to consider

prior to dismissal for failure to follow a court order).

      Accordingly, the district court should have considered Lyons’ first amended

complaint, filed on February 7, 2011. We reverse in part and remand to allow the

district court to consider the first amended complaint in the first instance. We note

that the first amended complaint includes claims that the district court previously

concluded were cognizable against some of the named defendants.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part; REVERSED in part; and REMANDED.




                                            3                                  11-17124
