
    William BAUMER, Plaintiff-Appellant, v. George SMITH; E. Booke; E. Emerson; T.D. Simpson; J.A. Yates; W.J. Phillips, Defendants-Appellees.
    No. 99-15090. D.C. No. CV-97-5168-REC.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Oct. 17, 2001.
    Decided Jan. 25, 2002.
    Before BEEZER, TROTT, and TALLMAN, Circuit Judges.
   MEMORANDUM

We reverse the district court’s sua sponte dismissal of Baumer’s First Amended Complaint. The record is insufficient to make a legal determination regarding the applicability of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). Upon remand, the district court shall grant Baumer leave to file a second amended complaint and send him a copy of his First Amended Complaint.

The district court’s order denying Baumer’s motion for appointment of counsel is affirmed. It is within the district court’s discretion to decide whether to appoint counsel for Baumer upon remand.

REVERSED, in Part, AFFIRMED, in Part, and REMANDED.

Each party shall bear its own costs. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
     