                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 10 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



BOOKER T. WASHINGTON,                            No. 10-56831

               Plaintiff - Appellant,            D.C. No. 2:10-cv-08261-UA-
                                                 DUTY
  v.

THE RITZ CARLTON HOTEL                           MEMORANDUM *
COMPANY, LLC,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Audrey B. Collins, Chief Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Booker T. Washington appeals pro se from the district court’s order denying

his request for leave to proceed in forma pauperis in his Title VII action. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the determination that a


          *
             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).
complaint lacks arguable substance in law or fact, and for an abuse of discretion

the denial of leave to proceed in forma pauperis. Tripati v. First Nat’l Bank &

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

      The district court concluded that Washington’s proposed complaint was

frivolous or without merit because Washington had alleged the same claim against

the same defendant in an earlier action that was dismissed with prejudice.

However, a review of the record shows that in this action, Washington alleged a

claim based on a retaliatory termination, while the prior action focused on alleged

discrimination during Washington’s employment. Accordingly, we reverse and

remand to the district court for further proceedings.

      Washington’s remaining contentions are unpersuasive.

      Washington shall bear his own costs on appeal.

      REVERSED and REMANDED.




                                          2                                   10-56831
