                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 16 2012

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




                             FOR THE NINTH CIRCUIT



DUANE DIXON,                                     No. 11-16778

               Plaintiff - Appellant,            D.C. No. 1:10-cv-01225-LJO-DLB

  v.
                                                 MEMORANDUM *
DEPARTMENT OF CORRECTIONS
AND REHABILITATION; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Duane Dixon, a California state prisoner, appeals pro se from the district

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

were deliberately indifferent to his serious medical needs with respect to his head


          *
             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).
wound. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

2000). We review for an abuse of discretion a decision to dismiss a complaint

without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en

banc). We vacate and remand.

      Dismissal without leave to amend was premature because it is not

“absolutely clear” that the deficiencies of the complaint could not be cured by

amendment. Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007); see also

Jones v. Bock, 549 U.S. 199, 216 (2007) (holding that failure to exhaust is an

affirmative defense under the Prison Litigation Reform Act and that inmates are

not required to specially plead or demonstrate exhaustion in their complaints).

Accordingly, we vacate the judgment and remand to allow Dixon to file an

amended complaint.

      VACATED and REMANDED.




                                          2                                      11-16778
