
    Patricia DOUGLASS-WOODRUFF, Plaintiff-Appellant, v. State of NEVADA, a governmental entity, EX REL. ITS DEPT. OF MENTAL/HEALTH RETARDATION, DIV. OF RURAL CLINICS, CARSON MENTAL HEALTH FACILITY; Marilyn Newell, an individual, Defendants-Appellees.
    No. 00-15580.
    D.C. No. CV 98-00678-DWH-(RAM).
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Oct. 16, 2001.
    Decided Nov. 30, 2001.
    Before GOODWIN, HUG, and THOMAS, Circuit Judges.
   MEMORANDUM

Plaintiff Patricia Douglass-Woodruff appeals the judgment dismissing her claims under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and 42 U.S.C. § 1983, and as well as her state law claims. The case arose out of conditions of her employment as a staff psychologist with the State of Nevada under the supervision of Defendant Marilyn J. Newell. We reverse and remand.

Plaintiffs amended complaint alleged claims against the State of Nevada which the district court dismissed pursuant to the Eleventh Amendment; the dismissal of these claims is not being appealed. Her claims against Defendant Newell were dismissed sua sponte because the complaint failed to allege that she had complied with the pre-litigation requirements of 42 U.S.C. § 2000e-5(b). Plaintiff had in fact complied and had obtained a “right to sue” letter, but had simply failed to so allege in her complaint. Plaintiff was entitled to amend her complaint. When she filed a motion to reconsider instead of a motion for leave to amend, her motion was denied.

On remand, the district court should grant a timely motion to amend. “[Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir.2001) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.1996)). “[I]n a line of cases stretching back nearly 50 years, we have held that in dismissing for failure to state a claim under Rule 12(b)(6), ‘a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.’ ” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (emphasis added) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). Douglass-Woodruffs pleading could be saved by an amendment that alleges that she exhausted her administrative remedies with the EEOC.

The district court dismissed Plaintiffs § 1983 claim on the basis of res judicata. We reverse the dismissal of the § 1983 claim because the facts pertinent to Plaintiffs § 1983 claim differ from those that the Nevada statute permits to be adjudicated in Plaintiffs administrative appeal. Nevada Statute § 284.390, the section under which Plaintiff brought her administrative appeal, permits the adjudication of the reasonableness only of a dismissal, demotion or suspension, and provides only reinstatement and back pay as remedies. Nevada Administrative Code § 281.305 grants a hearing to state employees who claim that reprisal or retaliatory action was taken against them for disclosing information concerning improper governmental action, but provides only injunctive relief. Therefore, the Nevada administrative appeal process does not provide Plaintiff with the same remedies that § 1983 does.

No party is to recover costs on this appeal. If the case is not disposed of on remand, any costs incurred thereafter can abide the final disposition of the case.

Reversed and remanded. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
     