Gary v. Jernigan, Plaintiff-appellant, v. N. Fry, Correctional Lieutenant, California State Prisonsolano; Wendy Still, Associate Warden, Californiastate Prison Solano, Defendants-appellees, 139 F.3d 905 (9th Cir. 1998)

MEMORANDUM^* 

California state prisoner Gary V. Jernigan appeals pro se the district court's 28 U.S.C. § 1915A dismissal for failure to state a claim of his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a § 1915 dismissal for abuse of discretion, see Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir. 1995), and we vacate and remand.

Jernigan alleges in his complaint that his due process rights were violated when defendant Fry reviewed on administrative appeal her own investigative finding that Jernigan was guilty of the disciplinary charge. Due process requires a non-biased decisionmaker. See Wolff v. McDonnell, 418 U.S. 539, 570-71, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Walker v.. City of Berkeley, 951 F.2d 182, 185 (9th Cir. 1991); cf. Withrow v. Larkin, 421 U.S. 35, 58 n. 25, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975) (listing prior Supreme Court cases holding that "when review of an initial decision is mandated, the decisionmaker must be other than the one who made the decision under review").

However, Jernigan must also allege that the punishment imposed significant and atypical hardship upon him such that he had a protected liberty interest entitling him to due process protections. See Sandin v. Connor, 515 U.S. 472, 484, 487, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). Because it is possible that Jernigan could cure the deficiencies of his complaint by amendment, the district court abused its discretion by dismissing his complaint. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

VACATED and REMANDED.