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.

*667REVERSED, in Part, AFFIRMED, in Part, and REMANDED.

Each party shall bear its own costs.