                                                                                FILED
                           NOT FOR PUBLICATION                                  NOV 27 2013

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



                            FOR THE NINTH CIRCUIT

DAVID ROY STILWELL, et al.,                      No. 12-15603

              Plaintiffs - Appellants,           D.C. No. 2:11-cv-1549-PMP-VCF

  v.
                                                 MEMORANDUM*
CLARK COUNTY, NEVADA, et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                     Argued and Submitted November 7, 2013
                            San Francisco, California

Before: REINHARDT and WATFORD, Circuit Judges, and LYNN, District
Judge.**

       This Court reviews de novo the district court’s decision to dismiss

Appellants’ Complaint for failure to state a claim. See Manzarek v. St. Paul Fire &

Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008). For the reasons given by the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.
district court, dismissal of Appellants’ Complaint pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure was not erroneous; however, the district court

abused its discretion in dismissing the case with prejudice, without granting

Appellants leave to amend.

      The district court determined that further amendment would be futile, based

on the allegations contained in Appellants’ proposed First Amended Complaint. It

did not, however, provide any specific explanation for that conclusion, but, rather,

merely referenced the Defendants’ Motions to Dismiss. Further, the dismissal with

prejudice was contrary to the district court’s prior assurance that Appellants would

be “allow[ed] leave to amend the [C]omplaint to cure whatever deficiencies are

present,” and would not be “married” to their proposed First Amended Complaint

for purposes of the district court’s determination of the propriety of amendment.

Under these circumstances, the failure to allow amendment constituted an abuse of

discretion. See Gompper v. VISX, Inc., 298 F.3d 893, 897-98 (9th Cir. 2002).




      We accordingly vacate the district court’s judgment dismissing Appellants’

Complaint with prejudice. This case is remanded for further proceedings

consistent with this disposition.



                                          2
VACATED AND REMANDED.

       Costs awarded to plaintiffs.




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