                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 04 2016

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



                             FOR THE NINTH CIRCUIT


KEVIN LYNN FERNANDEZ,                            No. 14-15804

               Plaintiff - Appellant,            D.C. No. 3:13-cv-00670-RCJ-
                                                 WGC
 v.

BERT JACKSON; et al.,                            MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                              Submitted July 26, 2016**

Before:        SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      Kevin Lynn Fernandez, a Nevada state prisoner, appeals pro se from the

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

and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

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

          *
             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).
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 affirm in part, reverse

in part, vacate in part, and remand.

      The district court properly dismissed Fernandez’s retaliation claim against

all defendants, except Jackson and Marikami, because Fernandez failed to allege

facts sufficient to show that defendants other than Jackson and Marikami labeled

him as mentally ill because of any protected conduct. See Rhodes v. Robinson, 408

F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a retaliation claim in the

prison context). However, because Fernandez was not given an opportunity to

amend this claim, Fernandez should be granted leave to amend to cure any

deficiencies. 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)); Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725 (9th

Cir. 2000) (standard of review).

      Fernandez alleged that defendants Jackson and Marikami changed

Fernandez’s mental health records because he filed a grievance against them.

Thus, we conclude that the district court erred in dismissing Fernandez’s retaliation

claim against Jackson and Marikami because Fernandez alleged facts sufficient to


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show that these defendants labeled him as mentally ill because he engaged in

protected conduct. See Rhodes, 408 F.3d at 567-68.

      The district court properly dismissed Fernandez’s due process claim to the

extent that it was premised on his purported right to be eligible for parole because

Nevada law does not create a liberty interest in parole. See Moor v. Palmer, 603

F.3d 658, 661 (9th Cir. 2010) (“Nevada’s statutory parole scheme . . . expressly

disclaims any intent to create a liberty interest.”); Neal v. Shimoda, 131 F.3d 818,

827 (9th Cir. 1997) (“The requirements of procedural due process apply only to the

deprivation of interests encompassed by the Fourteenth Amendment’s protection of

liberty and property.” (citation and quotation marks omitted)). The district court

did not abuse its discretion in dismissing this claim without leave to amend

because the deficiencies cannot be cured by amendment. See Weilburg, 488 F.3d

at 1205.

      However, the district court overlooked Fernandez’s allegations that he was

subjected to mental health treatment against his will, was placed in a mental health

unit, and had a right “not to be labe[l]ed as a high risk sex offender.” See

Washington v. Harper, 494 U.S. 210, 221-22 (1990) (a prisoner possesses a

“liberty interest in avoiding the unwanted administration of antipsychotic drugs

under the Due Process Clause”); Vitek v. Jones, 445 U.S. 480, 493 (1980) (a


                                           3                                   14-15804
convicted felon “is entitled to the benefit of procedures appropriate in the

circumstances before he is found to have a mental disease and transferred to a

mental hospital”); see also Neal, 131 F.3d at 828-30 (applying Vitek in context of

sex offender label). Accordingly, we vacate the judgment as to this due process

claim so that the district court may consider this claim in the first instance.

      The district court dismissed Fernandez’s state law claims on the ground that

violations of state law do not give rise to a claim for relief under § 1983. However,

Fernandez expressly brought these claims under the district court’s supplemental

jurisdiction. See 28 U.S.C. § 1367. On remand, the district court should exercise

its discretion as to whether it will review Fernandez’s state law claims under its

supplemental jurisdiction.

      Because the district court denied Fernandez’s motion to proceed in forma

pauperis after concluding that Fernandez’s complaint failed to state any claims, we

reverse the denial of leave to proceed in forma pauperis for the district court to

reconsider in light of our conclusion that the complaint states claims for relief. See

O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990) (standard of review).

      AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED.




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