                                                                                FILED
                            NOT FOR PUBLICATION                                 FEB 22 2010

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




                             FOR THE NINTH CIRCUIT



 TIMOTHY EDWARD HOLZ,                              No. 08-55565

              Plaintiff - Appellant,               D.C. No. 5:07-cv-01410-DSF-PJW

   v.
                                                   MEMORANDUM *
 ROBERT E. MCFADDEN, Regional
 Director; et al.,

              Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Central District of California
                      Dale S. Fischer, District Judge, Presiding

                             Submitted February 16, 2010

Before:       FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Timothy Edward Holz, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action without prejudice

for failure to pay the partial initial filing fee. We have jurisdiction under



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

RA/Research
28 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. See 8 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.




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