                                                                              FILED
                            NOT FOR PUBLICATION                               JAN 30 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



JOHN WESLEY WILLIAMS,                            No. 10-15139

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00784-GGH

  v.
                                                 MEMORANDUM *
CALIFORNIA DEPARTMENT OF
CORRECTIONS & REHABILITATION,
et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Eastern District of California
                 Gregory G. Hollows, Magistrate Judge, Presiding

                      Argued and Submitted January 12, 2012
                            San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and RAKOFF, District
Judge.**

       Plaintiff-Appellant John Wesley Williams appeals from the district court's

dismissal of his pro se prisoner complaint for improper joinder of parties.


       *     This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       ** The Honorable Jed S. Raµoff, Senior United States District Judge for
the Southern District of New Yorµ, sitting by designation.
Williams's complaint brings several causes of action against fifteen different

defendants, arising from events that allegedly occurred between August 2006 to

March 2007, while Williams was incarcerated. Because the parties are familiar

with the factual and procedural history of this case, we repeat only those facts

necessary to address the issues raised on appeal. We have jurisdiction pursuant to

28 U.S.C. y 1291, and we affirm in part, and reverse and remand in part.

      We reverse the district court's dismissal of Williams's complaint for

improper joinder. Defendants may be joined in an action if '(A) any right to relief

is asserted against them jointly, severally, or in the alternative with respect to or

arising out of the same transaction, occurrence, or series of transactions or

occurrences; and (B) any question of law or fact common to all defendants will

arise in the action.' Fed. R. Civ. P. 20(a)(2) (emphasis added); Coughlin v.

Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). Williams's pro se complaint, which

we construe liberally, see Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002),

sets forth sufficient allegations to meet the joinder test as to the various defendants.

Moreover, the district court's dismissal of the complaint in its entirety was not

proper, even if the complaint had misjoined defendants. Fed. R. Civ. P. 21

('Misjoinder of parties is not a ground for dismissing an action.') (emphasis

added).


                                            2
      The government urges us to affirm the dismissal on two other grounds. We

reject the government's argument that the dismissal may be affirmed as a proper

sanction under Federal Rule of Civil Procedure 41(b). The district court's original

dismissal with leave to amend cannot be converted into a Rule 41(b) dismissal as a

sanction because Williams chose not to amend the complaint, and informed the

court of his choice not to do so. Edwards v. Marin Parµ, Inc., 356 F.3d 1058,

1064-65 (9th Cir. 2004).

      We further decline to affirm the dismissal on Rule 8 and Rule 12(b)(6)

grounds, except as to Defendant-Appellee California Department of Corrections

and Rehabilitation (CDCR). While we affirm the district court's dismissal of

CDCR on Eleventh Amendment immunity grounds, we decline to consider

dismissal on Rule 8 or Rule 12(b)(6) grounds as to the other defendants, at the

present time, because those grounds were not considered by the district court. See

Singleton v. Wulff, 428 U.S. 106, 120 (1976); see also Foti v. City of Menlo Parµ,

146 F.3d 629, 638 (9th Cir. 1998). In doing so, we express no opinion as to the

appropriateness of dismissing the balance of Williams's claims under Rule 8 or

Rule 12(b)(6), and if it elects to do so, the district court may consider these

grounds on remand. Accordingly, we affirm the dismissal of Defendant-Appellant




                                           3
CDCR, reverse the dismissal of the complaint as to all other defendants, and

remand.

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, and REVERSED and REMANDED in part.




                                         4
                                                                             FILED
Williams v. California Department of Corrections 10-15139                      JAN 30 2012
WALLACE, Senior Circuit Judge, concurring in part and dissenting inMOLLY C. DWYER, CLERK
                                                                    part.
                                                                           U.S . CO U RT OF AP PE A LS



      I concur with my colleagues that the district court's dismissal of the
complaint in its entirety for misjoinder was not proper. However, I respectfully
dissent from their view that Williams's complaint met the joinder test as to each
defendant.
      The proper starting point for a joinder analysis is to begin with the first
named defendant and join only those claims that can properly be joined to that
defendant's claims. See Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997).
Because CD-R was properly dismissed on immunity grounds, the first named
defendant is Grannis.
      Grannis is implicated in almost all of the incidents in the complaint based on
inmate grievances that Williams filed. But the complaint does not allege that
Grannis reviewed a grievance against defendant Holmes. Because the claims
against Grannis and Holmes are unrelated, I would affirm the dismissal of the
claims against defendant Holmes for misjoinder.
