                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 8 2014

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



                            FOR THE NINTH CIRCUIT


JOHNNY LEE HOWZE,                                No. 13-56382

              Plaintiff - Appellant,             D.C. No. 2:13-cv-04422-UA-RZ

  v.
                                                 MEMORANDUM*
T. TANAKA, Ph.D., individual 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 September 23, 2014**

Before:       W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

       California state prisoner Johnny Lee Howze appeals pro se from the district

court’s order denying his application to proceed in forma pauperis and dismissing

his 42 U.S.C. § 1983 action alleging claims related to his insomnia and erectile

dysfunction. We have jurisdiction under 28 U.S.C. § 1291. We review for an



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
abuse of discretion the denial of leave to proceed in forma pauperis, and 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 affirm.

      The district court did not abuse its discretion by denying Howze leave to

proceed in forma pauperis because Howze’s claims were either frivolous or lacked

merit. See id. 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.”); Sparling v. Hoffman Constr. Co., 864 F.2d

635, 638 (9th Cir. 1988) (court may sua sponte dismiss for failure to state a claim

without notice or an opportunity to respond where plaintiff cannot possibly win

relief); see also Farmer v. Brennan, 511 U.S. 825, 845, 847 (1994) (elements of

deliberate indifference); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021-22

(9th Cir. 2010) (“The [Americans with Disabilities Act] prohibits discrimination

because of disability, not inadequate treatment for disability”).

      We reject Howze’s contentions that the dismissal of his action was

premature or that the district court failed to address any timely-filed objections.

      AFFIRMED.




                                           2                                    13-56382
