Timothy Holz v. Robert McFadden

FILED
NOT FOR PUBLICATION FEB 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TIMOTHY EDWARD HOLZ, No. 08-55565
Plaintiff - Appellant, D.C. No. 5:07-cv-01410-DSF-PJW
v.
MEMORANDUM *
ROBERT E. MCFADDEN, Regional
Director; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted February 16, 2010
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Timothy Edward Holz, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action without prejudice
for failure to pay the partial initial filing fee. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
RA/Research
28 U.S.C. § 1291. We review for abuse of discretion, Taylor v. Delatoore, 281
F.3d 844, 847 (9th Cir. 2002), and we vacate and remand.
The district court dismissed the action without determining whether Holz
had funds to pay the partial initial filing fee in its entirety at the time the payment
was ordered. Because Holz demonstrated in his response to the order to show
cause that he lacked the funds to pay the entire fee, the district court should not
have dismissed the action. See 8 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850
(“[A] district court cannot dismiss an in forma pauperis prisoner’s case based on
his failure to pay the initial fee when his failure to pay is due to lack of funds
available to him when payment is ordered.”). Accordingly, we vacate and remand
for further proceedings.
VACATED and REMANDED.
RA/Research 2 08-55565