HOLZ v. McFADDEN, 366 Fed.Appx. 791 (9th Cir. 2010)
Timothy Edward HOLZ, Plaintiff-Appellant, v. Robert E. McFADDEN, RegionalDirector; et al., Defendants-Appellees.
No. 08-55565.United States Court of Appeals, Ninth Circuit.Submitted February 16, 2010.
Filed February 22, 2010.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
Timothy Edward Holz, Coleman, FL, pro se.
Tim Laske, Esquire, Assistant U.S., Office of U.S. Attorney, Los Angeles, CA, for Defendants-Appellees.
Appeal from the United States District Court for the Central District of California, Dale S. Fischer, District Judge, Presiding. D.C. No. 5:07-cv-O1410-DSF-PJW.
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
MEMORANDUM[fn*]
[fn*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Timothy Edward Holz, a California state prisoner, appeals pro se from the district court's judgment dismissing his42 U.S.C. § 1983 action without prejudice for failure to pay the partial initial filing fee. We have jurisdiction under28 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. See28 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.Page 792