                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 30 2015

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



                             FOR THE NINTH CIRCUIT


HORACE THOMAS, AKA Horace                        No. 14-16204
Andrew Bell,
                                                 D.C. No. 2:14-cv-00619-MMD-
               Plaintiff - Appellant,            CWH

  v.
                                                 MEMORANDUM*
MERLE BRUCE, M.D.,

               Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Miranda Du, District Judge, Presiding

                            Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Horace Thomas, a.k.a. Horace Andrew Bell, a California state prisoner,

appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983

action alleging an Eighth Amendment violation. We have jurisdiction under 28


          *
             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).
U.S.C. § 1291. We review de novo a dismissal for failure to state a claim.

Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (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.

      Although the district court properly dismissed Thomas’s complaint because

Thomas failed to allege facts sufficient to state a deliberate indifference claim

relating to his jaw surgery, the district court abused its discretion by dismissing

Thomas’s action without first providing him with an opportunity to amend. See

Weilburg, 488 F.3d at 1205 (“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). Accordingly, we vacate the judgment and remand to the

district court with instructions to provide Thomas with an opportunity to file an

amended complaint.

      VACATED and REMANDED.




                                           2                                     14-16204
