                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                          OCT 23 2015

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

RICHARD H. BLAISDELL,                            No. 12-17793

               Plaintiff - Appellant,            D.C. No. 1:12-cv-00554-LEK-
                                                 BMK
 v.

HAWAII DEPARTMENT OF PUBLIC                      MEMORANDUM*
SAFETY,

               Defendant - Appellee.


                    Appeal from the United States District Court
                               for the District of Hawaii
                    Leslie E. Kobayashi, District Judge, Presiding

                            Submitted October 14, 2015**

Before:        SILVERMAN, BERZON, and WATFORD, Circuit Judges.

      Hawaii state prisoner Richard H. Blaisdell appeals pro se from the district

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

violations in connection with the treatment of his prison trust account. We have


          *
             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).
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)). We vacate and remand.

      The district court properly dismissed Blaisdell’s action against the Hawaii

Department of Public Safety because it is barred by the Eleventh Amendment. See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n the

absence of consent a suit in which the State or one of its agencies or departments is

named as the defendant is proscribed by the Eleventh Amendment.”). However,

the district court prematurely dismissed the action with prejudice. Accordingly, we

vacate the judgment and remand to permit Blaisdell to voluntarily dismiss his

action if he so chooses.

      Because this appeal does not concern Blaisdell’s ability to proceed in forma

pauperis, we do not consider Blaisdell’s contentions concerning whether a prior

action counts as a strike under the Prison Litigation Reform Act.

      VACATED and REMANDED.




                                          2                                    12-17793
