                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 26 2011

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




                            FOR THE NINTH CIRCUIT



NANCY LAGRANGE, guardian ad litem                No. 10-16787
of Alize Martinez; JOSIE GARCIA,
                                                 D.C. No. 3:09-cv-00681-LRH-
              Plaintiffs - Appellants,           RAM

  v.
                                                 MEMORANDUM *
STEVEN HATCHER, an individual;
NEVADA, STATE OF, its Gaming
Control Board; A-1 CHEMICAL, INC., a
Nevada Corporation; BRAD PHILLIPS,
an individual; STATE GAMING
CONTROL BOARD,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                        Argued and Submitted July 18, 2011
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**

       Josie Garcia and Nancy LaGrange, guardian ad litem of Alize Martinez

(Alize), (collectively, Plaintiffs), appeal the district court’s dismissal of their 42

U.S.C. § 1983 complaint, which alleged, inter alia, that Steven Hatcher, an

enforcement agent of the Nevada Gaming Control Board, and the Nevada Gaming

Control Board, (collectively, State Defendants), acted with deliberate indifference

to their Fourteenth Amendment due process rights when Hatcher fatally shot

Santiago Ray Martinez (Martinez), Garcia’s son and Alize’s father.




       1.     The district court abused its discretion when it dismissed the claims

against the State Defendants without oral argument and without providing

Plaintiffs the opportunity to amend the complaint because the factual findings

contained in the district attorney’s report regarding the shooting incident raised the

spectre of a plausible claim under 42 U.S.C. § 1983 against Hatcher. See

Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (holding that a

district court abuses its discretion by denying leave to amend unless amendment

would be futile or the plaintiff has failed repeatedly to cure the complaint’s


       **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

                                            2
deficiencies despite repeated opportunities); see also Doe v. United States, 58 F.3d

494, 497 (9th Cir. 1995) (“[A] district court should grant leave to amend even if no

request to amend the pleading was made, unless it determines that the pleading

could not possibly be cured by the allegation of other facts.”) (citation omitted).




      2.     Plaintiffs’ opening brief does not assert any claims against

Defendants-Appellees A-1 Chemical, Inc., and Brad Phillips. We deem these

claims abandoned and affirm the district court’s dismissal of all claims against

them. See Cousins v. Lockyer, 568 F.3d 1063, 1070 n.3 (9th Cir. 2009).

      AFFIRMED IN PART; VACATED AND REMANDED IN PART. The

parties are to bear their own respective costs.




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