                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 23 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


LAFONZO R. TURNER,                               No. 14-56504

               Plaintiff - Appellant,            D.C. No. 2:14-cv-04758-UA-AGR

 v.
                                                 MEMORANDUM*
B. M. CASH, individual and Warden, in
her official capacity; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, Chief Judge, Presiding

                            Submitted October 14, 2015**

Before:        SILVERMAN, BERZON, and WATFORD, Circuit Judges.

      Lafonzo R. Turner, a California state prisoner, appeals pro se from the

district court’s order denying his request to proceed in forma pauperis (“IFP”) in

his 42 U.S.C. § 1983 action alleging various constitutional violations. We have


          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the

denial of leave to proceed IFP, and review de novo a determination that a

complaint lacks arguable substance in law and fact. Tripati v. First Nat. Bank &

Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). We vacate and remand.

      The district court properly concluded that Turner’s complaint failed to state

a claim. See id. at 1370. However, a case decided after the district court’s ruling

held that “a district court’s denial of leave to proceed in forma pauperis is an abuse

of discretion unless the district court first provides a plaintiff leave to amend the

complaint or finds that amendment would be futile.” Rodriguez v. Steck, 795 F.3d

1187 (9th Cir. 2015) (order). The district court did not determine whether

amendment would be futile and did not give Turner leave to amend. Moreover, it

appears that Turner may have intended to allege an excessive force claim, which

the district court did not address. Accordingly, we vacate and remand for further

proceedings.

      VACATED and REMANDED.




                                            2                                    14-56504
