FILED
NOT FOR PUBLICATION MAR 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. L. HOWZE, No. 14-56289
Plaintiff - Appellant, D.C. No. 2:14-cv-04067-UA-RZ
v.
MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
J.L. Howze, a California state prisoner, appeals pro se from the district
court’s order denying his request to proceed in forma pauperis (“IFP”) in his action
alleging Eighth Amendment and Americans with Disabilities Act (“ADA”)
*
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).
violations. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse
of discretion the denial of leave to proceed in forma pauperis, and review de novo a
determination that a complaint lacks arguable substance in law or fact. Tripati v.
First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). We vacate and
remand.
Although the district court acted within its discretion in denying Howze
leave to proceed IFP on his Eighth Amendment claim because it was frivolous or
lacked merit, the district court did not address the Title II ADA claim, also set forth
in Howze’s complaint. See Tripati, 821 F.2d at 1370 (“A district court may deny
leave to proceed in forma pauperis at the outset if it appears from the face of the
proposed complaint that the action is frivolous or without merit.”); see also Okwu
v. McKim, 682 F.3d 841, 845 (9th Cir. 2012) (a state is not immune from an action
for damages alleging disability discrimination under Title II of the ADA); Duvall
v. County of Kitsap, 260 F.3d 1124, 1135, 1138-40 (9th Cir. 2001) (setting forth
elements of a Title II ADA claim for monetary damages). We vacate and remand
for the district court to assess the Title II ADA claim in the first instance.
In light of our disposition, we do not consider Howze’s contentions
regarding the denial of his Rule 60(b)(6) motion for reconsideration.
VACATED and REMANDED.
2 14-56289