                                                                            FILED
                              NOT FOR PUBLICATION                           SEP 04 2015

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



                               FOR THE NINTH CIRCUIT


JUAN ANTONIO FALCON,                              No. 13-17273

                 Plaintiff - Appellant,           D.C. No. 1:10-cv-02262-GSA

 v.
                                                  MEMORANDUM*
M. R. PHILLIPS, Correctional Lieutenant
at KVSP,

                 Defendant - Appellee.


                      Appeal from the United States District Court
                          for the Eastern District of California
                      Gary S. Austin, Magistrate Judge, Presiding**

                              Submitted August 25, 2015***

Before:         McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      Juan Antonio Falcon, a California state prisoner, appeals pro se from the

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

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
                Falcon consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
due process rights were violated in connection with his placement in segregated

housing as a result of a prison disciplinary proceeding. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. Hamilton v. Brown, 630 F.3d 889, 892

(9th Cir. 2011) (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 vacate and remand.

      The district court properly dismissed Falcon’s complaint because Falcon

failed to allege facts sufficient to show that his placement in segregated housing as

a result of his disciplinary hearing imposed an “atypical and significant hardship”

on him “in relation to the ordinary incidents of prison life” to create a

constitutionally protected liberty interest. See Sandin v. Conner, 515 U.S. 472,

483-84 (1995) (constitutionally protected liberty interest arises only when a

restraint imposes an “atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life”). However, although it gave notice of the

complaint’s deficiencies in the order filed on October 3, 2013, the district court did

not provide an opportunity to amend with the benefit of that notice. 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


                                           2                                    13-17273
quotation marks omitted)); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en

banc) (setting forth abuse of discretion standard of review). Although Falcon was

previously granted leave to amend, the guidance in the prior order did not speak to

the deficiencies at issue in this complaint. Accordingly, we vacate the judgment

and remand to the district court with instructions to provide Falcon with an

opportunity to file an amended complaint.

      VACATED and REMANDED.




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