Nolan Edward Klein v. Steven P. Elliott, Timothy G. Randolph, City of Sparks and Mark McCartt , 42 F.3d 1400 ( 1994 )

42 F.3d 1400

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Nolan Edward KLEIN, Plaintiff-Appellant,
v.
Steven P. ELLIOTT, Timothy G. Randolph, City of Sparks and
Mark McCartt, Defendants-Appellees.

No. 94-15574.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 14, 1994.*
Decided Nov. 22, 1994.

Before: WALLACE, Chief Judge, GOODWIN and NORRIS, Circuit Judges.

1

MEMORANDUM**

2

Nolan Edward Klein, a Nevada state prisoner, appeals pro se the district court's order dismissing Klein's civil rights complaint with prejudice as frivolous pursuant to 28 U.S.C. Sec. 1915(d). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We vacate and remand.

3

In his 42 U.S.C. Sec. 1983 complaint, Klein alleged that the named defendants conspired to conceal from the judge an offer of judgment in another civil rights action. Pursuant to a procedure initiated by the Nevada District Court, the district court ordered Klein to pay a five dollar filing fee. Klein paid the filing fee and the district court dismissed Klein's complaint as frivolous. Klein appealed that dismissal. Relying on Butler v. Leen, 4 F.3d 772, 773 (9th Cir.1993) (per curiam), we reversed the dismissal. Klein v. Elliot, No. 93-16343, unpublished memorandum disposition (9th Cir. Jan. 6, 1994). Because Klein had paid the five dollar filing fee, we held that "the district court should not have dismissed Klein's complaint with prejudice prior to service of process." Id. Following our reversal, instead of ordering service of process, the district court refunded Klein's five dollar filing fee and dismissed his complaint as frivolous. Klein timely appeals.

4

Once the district court demands payment of a partial filing fee, it may not dismiss without issuing the summonses and allowing the plaintiff to amend the complaint. Butler, 4 F.3d at 773 (listing cases reaching same conclusion).

5

Because Klein had paid the partial filing fee, the district court was required to issue the summonses and allow Klein the opportunity to amend his complaint. See id. Accordingly, we vacate the district court's judgment. On remand, the district court shall order service of process and allow Butler an opportunity to amend his complaint. We express no opinion on the merits of Klein's purported claim.

6

VACATED AND REMANDED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

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