                                                                             FILED
                             NOT FOR PUBLICATION                              AUG 18 2011

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




                             FOR THE NINTH CIRCUIT



TUVALU TUTUILA FAUSIA,                            No. 10-55974

               Plaintiff - Appellant,             D.C. No. 5:09-cv-02320-R-E

    v.
                                                  MEMORANDUM *
MATHEW CATES; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                             Submitted August 11, 2011 **

Before:        THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.

      Tuvalu Tutuila Fausia, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his Americans with Disabilities Act and 42

U.S.C. § 1983 action for failure to pay the initial partial filing fee. We have

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

          *
             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).
district court’s decision to impose a partial filing fee pursuant to 28 U.S.C. § 1915,

and its dismissal for failure to pay. Taylor v. Delatoore, 281 F.3d 844, 847 (9th

Cir. 2002). We reverse and remand.

      The district court abused its discretion by dismissing Fausia’s action for

failure to pay an initial partial filing fee in the amount of $20.20, because Fausia

had no available funds with which to pay the fee. See 28 U.S.C. § 1915(b)(4) (“In

no event shall a prisoner be prohibited from bringing a civil action or appealing a

civil or criminal judgment for the reason that the prisoner has no assets and no

means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850

(district court cannot dismiss in forma pauperis prisoner’s case based on his failure

to pay initial partial fee when his failure to pay is due to lack of available funds

when payment is ordered).

      REVERSED and REMANDED.




                                            2                                      10-55974
