[T][U] Mccullough v. Couris

MEMORANDUM* Perry A. McCullough, a federal prisoner, appeals pro se the district court's summary judgment in favor of defendants in his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). McCullough alleged that defendants, the federal prosecutor and federal investigator involved in the prosecution of his criminal case, violated his rights to due process and equal protection during forfeiture proceedings. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate and remand. The district court seems to have based its summary judgment dismissal on two separate grounds. First, the district court stated in its order granting summary judgment that McCullough was not given a chance to amend his complaint because any amendment would have been futile. Before dismissing a pro se litigant's complaint, a district court must afford the litigant an opportunity to cure deficiencies in his complaint, unless amendment would be futile. See Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). Because it is not absolutely clear that no amendment would have enabled McCullough to allege a constitutional violation, the district court erred by dismissing this action without providing McCullough with the opportunity to amend. See id. at 1448. On remand, the district court should inform McCullough of the deficiencies in his complaint and permit him to amend the complaint. See id.