NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL OSTER,

 Plaintiff - Appellant,

 v.

COUNTY OF SOLANO; SOLANO

COUNTY SHERIFF’S DEPARTMENT;

DOES, 1 through 50, inclusive,

 Defendants - Appellees.

No. 13-15791

D.C. No. 2:12-cv-01264-JAM-AC

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted March 10, 2015

San Francisco, California

Before: BERZON, BYBEE, and OWENS, Circuit Judges.

Plaintiff-Appellant Michael Oster appeals the district court’s dismissal of his

First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.

The district court properly dismissed Oster’s claim of municipal liability

FILED

MAR 23 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
under Monell v. Department of Social Services, 436 U.S. 658 (1978), and did not

abuse its discretion in denying leave to amend that claim. Oster failed to allege

any facts that would plausibly support his claim of “an unofficial yet distinct

departmental policy” allowing supervising officers to act unlawfully, and he has

not shown that he could cure this deficiency if given an additional opportunity.

The district court abused its discretion, however, in declining to give Oster

leave to amend his First Amendment retaliation claim on the ground that any

further amendment would be futile. As the district court acknowledged, Oster

could have cured the pleading’s defect—that is, the pleading’s vagueness as to the

content of his letters to elected officials—had he simply attached the letters to his

First Amended Complaint. Because Oster can still cure this deficiency by

attaching the letters to a proposed second amended complaint, and because neither

we nor the district court is in a position to say before seeing the letters whether

they plausibly indicate that Oster’s speech was on a matter of public concern, we

cannot say that amendment is necessarily futile. It was thus improper for the

district court to deny leave to amend this claim without first reviewing the intended

amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th

Cir. 2003).

2
Accordingly, we affirm the district court’s dismissal with prejudice of

Oster’s Monell claim, reverse the district court’s denial of leave to amend Oster’s

First Amendment retaliation claim, and remand for proceedings consistent with

this disposition.1

AFFIRMED in part; REVERSED in part.

 Each party shall bear its own costs on appeal.

1

We note that if Oster claims in his second amended complaint that

Defendants retaliated against him by causing him to be wrongfully arrested and

prosecuted for workers’ compensation fraud, he must plausibly allege that

Defendants lacked probable cause to believe Oster had committed workers’

compensation fraud. Cf. Lacey v. Maricopa Cnty., 693 F.3d 896, 917 n.8, 918–920

(9th Cir. 2012) (en banc) (noting that lack of probable cause is a required element

of a false arrest and malicious prosecution claim).

3