Christopher Wells v. Joe Acosta , 609 F. App'x 430 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER WELLS, No. 13-57176
Plaintiff - Appellant, D.C. No. 2:13-cv-07511-UA-
DUTY
v.
JOE ACOSTA, Team Leader; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Christopher Wells appeals pro se from the district court’s order denying his
motion for leave to proceed in forma pauperis (“IFP”) in his action alleging
employment discrimination. We have jurisdiction under 28 U.S.C. § 1291. We
review for an abuse of discretion. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1990). We affirm in part, vacate in part, and remand.
The district court did not abuse its discretion by denying Wells’s motion to
proceed IFP because Wells failed to verify his poverty adequately. See Rowland v.
Cal. Men’s Colony, 506 U.S. 194, 203 (1993) (an affidavit under 28 U.S.C.
§ 1915(a) is sufficient if it shows the person cannot pay court costs and “still be
able to provide himself and dependents with the necessities of life” (citation and
internal quotation marks omitted)); see also United States v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981) (per curiam) (a § 1915 affidavit must state facts “with
some particularity, definiteness and certainty” as to indigency).
On appeal, Wells contends that, after the district court denied his motion to
proceed IFP, he did not have an opportunity to pay the initial filing before his case
was closed. In Escobedo v. Applebees et al., — F.3d —, 2015 WL 3499902, at *6
(9th Cir. June 4, 2015), which was issued after the district court’s decision, this
court stated that “a would-be plaintiff must be given a reasonable time after a
denial of an [IFP] application to pay the fee.” Therefore, in light of intervening
authority, we vacate the judgment and remand for Wells to have an opportunity to
pay the initial filing fee.
AFFIRMED in part, VACATED in part, and REMANDED.
2 13-57176