                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 24 2010

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




                             FOR THE NINTH CIRCUIT



JAMES DAVID KARNATH,                             No. 09-35822

               Plaintiff - Appellant,            D.C. No. 2:08-cv-01002-RSM

  v.
                                                 MEMORANDUM *
TRACY DANIELS,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Western District of Washington
                    Ricardo S. Martinez, District Judge, Presiding

                           Submitted November 16, 2010 **

Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       Washington state prisoner James Karnath appeals pro se from the district

court’s judgment dismissing with prejudice his 42 U.S.C. § 1983 action alleging an

excessive force claim, and from its order striking as moot his motion to amend.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

          *
             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).
court’s dismissal for lack of standing. Colwell v. Dep’t of Health and Human

Servs., 558 F.3d 1112, 1121 (9th Cir. 2009). We review for abuse of discretion

dismissal without leave to amend. Leadsinger, Inc. v. BMG Music Publ’g, 512

F.3d 522, 532 (9th Cir. 2008). We vacate and remand.

      The district court correctly identified critical deficiencies in the operative

complaint, and determined that the record showed that Karnath was no longer

housed at the facility where the sole defendant—against whom Karnath sought

only injunctive relief—worked. However, the district court abused its discretion

when it rejected Karnath’s motion for leave to amend on the ground that it was

moot. See Fed. R. Civ. P. 15(a); see also Lucas v. Dep’t of Corr., 66 F.3d 245, 248

(9th Cir. 1995). The court did not discuss the fact that Karnath’s proposed second

amended complaint added a claim for money damages, analyze whether

amendment would have been futile, address Karnath’s allegations that he could not

file his proposed second amended complaint earlier due to lack of access to his

legal papers, point to any harm to defendant, or explain why the matter was moot.

See Lucas, 66 F.3d at 248. Thus, we vacate the judgment and remand for further

proceedings consistent with this disposition.

      We grant Karnath’s request for judicial notice of pages omitted from his

opening brief. Karnath’s remaining motions are denied as moot.


                                           2                                     09-35822
The parties shall bear their own costs on appeal.

VACATED AND REMANDED.




                                   3                09-35822
