BARON BEMENT V. JAMES COX, No. 15-17225 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 20 2017 MOLLY C. DWYER, CLERK BARON BEMENT, No. Plaintiff-Appellant, 15-17225 U.S. COURT OF APPEALS D.C. No. 3:12-cv-00475-MMD-WGC v. JAMES G. COX and GREG SMITH, MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding Submitted April 18, 2017** San Francisco, California Before: D.W. NELSON and IKUTA, Circuit Judges, and BURGESS,*** Chief District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Timothy M. Burgess, United States Chief District Judge for the District of Alaska, sitting by designation. Baron Bement appeals the district court’s entry of summary judgment in favor of the Nevada Department of Corrections (NDOC) on his claim under section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Bement also appeals the district court’s alternative holding, dismissal for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand. The district court erred in granting summary judgment on a ground not raised in the Appellees’ initial motion because the district court did not give Bement “notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f); see also Norse v. City of Santa Cruz, 629 F.3d 966, 972–73 (9th Cir. 2010) (en banc). Bement was not required to invoke section 504 by name in his complaint. See Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014) (per curiam). The district court also erred in dismissing Bement’s section 504 claim for failure to state a claim without giving him the opportunity to amend his complaint. Absent a determination that the complaint “could not possibly be cured by the allegation of other facts,” the district court was required to grant leave to amend. See, e.g., Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). REVERSED and REMANDED. 2

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