Steven J. Krier v. ADAM FORTNEY, Sheriff, Snohomish County;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN J. KRIER,
Plaintiff-Appellant,
v.
ADAM FORTNEY, Sheriff, Snohomish
County; et al.,
Defendants-Appellees.
No. 20-36085
D.C. No. 2:20-cv-01073-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Steven J. Krier appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging various constitutional claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under
28 U.S.C. § 1915(e)(2)(B), Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
* 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).
FILED
NOV 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2012), and we review for an abuse of discretion a district court’s denial of leave to
amend, Curry v. Yelp Inc., 875 F.3d 1219, 1224 (9th Cir. 2017). We vacate and
remand.
The district court dismissed Krier’s Fourth Amendment unlawful search and
arrest claims because Krier’s consent to wearing the electronic monitoring device
constituted an exception to the warrant requirement. The district court also
dismissed Krier’s Fourteenth Amendment claim alleging unlawful conditions of
confinement while he was subsequently detained because the named defendants
did not operate the jail and were not responsible for the jail’s conditions.
However, dismissal of Krier’s Fourth and Fourteenth Amendment claims
without leave to amend was premature because it is not absolutely clear that
amendment would be futile. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th
Cir. 1995) (“Unless it is absolutely clear that no amendment can cure the defect . . .
a pro se litigant is entitled to notice of the complaint’s deficiencies and an
opportunity to amend prior to dismissal of the action.”); see also Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990) (explaining that the “Fourth Amendment
generally prohibits the warrantless entry of a person’s home, whether to make an
arrest or to search for specific objects,” but that the prohibition does not apply
where voluntary consent has been obtained); Lopez v. Smith, 203 F.3d 1122, 1130-
31 (9th Cir. 2000) (en banc) (remanding because the district court failed to grant

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leave to amend the complaint to name the correct defendants). It is unclear
whether Krier’s agreement to wear the electronic monitoring device constituted a
consent to a search in his home, and what the circumstances were for his arrest.
He also named the sheriff as a defendant for his conditions-of-confinement claim.
Accordingly, we vacate the judgment and remand for the district court to provide
Krier with an opportunity to amend his complaint as to these claims only.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
VACATED and REMANDED.

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