                                                                            FILED
                             NOT FOR PUBLICATION                              OCT 7 2011

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




                             FOR THE NINTH CIRCUIT



VERNON DAVE WELCH,                               No. 07-16449

               Plaintiff - Appellant,            D.C. No. CV-04-05158-WHA

  v.
                                                 MEMORANDUM *
PAUL HENRY, individually and as
Lieutenant Investigative Unit in the Police
Department of the City of Santa Rosa; et
al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                    William H. Alsup, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Vernon Dave Welch, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to file


          *
             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).
an amended complaint. We have jurisdiction under 28 U.S.C. § 1291. We review

for an abuse of discretion, Ordonez v. Johnson, 254 F.3d 814, 815-16 (9th Cir.

2001) (per curiam), and we vacate and remand.

      The district court dismissed Welch’s action for failure to amend his

complaint after the court dismissed his complaint with leave to amend. However,

Welch filed an amended complaint that the district court “deemed timely.” Dist.

Ct. Dkt. 13. Therefore, the district court’s dismissal of Welch’s action on this basis

was improper. See Ordonez, 254 F.3d at 816 (district court abused its discretion by

dismissing pro se prisoner’s action for failure to file a timely amended complaint

because the prisoner constructively filed an amended complaint before the filing

deadline).

      Moreover, contrary to its dismissal order, the district court’s judgment states

that the court dismissed Welch’s complaint for failure state a claim. However,

there is no indication in the record that the district court analyzed Welch’s second

amended complaint or gave Welch sufficient notice of the complaint’s

deficiencies. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

curiam) (“Unless it is absolutely clear that no amendment can cure the defect . . . ,

a pro se litigant is entitled to notice of the complaint’s deficiencies and an

opportunity to amend prior to dismissal of the action.”).


                                            2                                    07-16449
Accordingly, we vacate the judgment and remand for further proceedings.

Welch shall bear his own costs on appeal.

VACATED and REMANDED.




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