NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL OSTER, Plaintiff - Appellant,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 Ru le 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 am end that claim. Oster failed to allege any facts that would plausibly support his claim of “an unofficial yet distinct departmental policy” allowing supervisi ng officers to act unlawfully, and he has not shown that he could cure this defi ciency 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—tha t 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 Oste r can still cure this deficiency by attaching the letters to a proposed sec ond 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 sp eech 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).

2Accordingly, 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 causi ng 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 lackof probable cause is a required element of a false arrest and malicious prosecution claim). 3