                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 19 2015

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



                             FOR THE NINTH CIRCUIT


J. L. HOWZE,                                      No. 14-56289

               Plaintiff - Appellant,             D.C. No. 2:14-cv-04067-UA-RZ

  v.
                                                  MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; et al.,

               Defendants - Appellees.


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

                             Submitted March 10, 2015**

Before:        FARRIS, WARDLAW, and PAEZ, Circuit Judges.

       J.L. Howze, a California state prisoner, appeals pro se from the district

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

alleging Eighth Amendment and Americans with Disabilities Act (“ADA”)

          *
             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).
violations. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse

of discretion the denial of leave to proceed in forma pauperis, and review 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 vacate and

remand.

      Although the district court acted within its discretion in denying Howze

leave to proceed IFP on his Eighth Amendment claim because it was frivolous or

lacked merit, the district court did not address the Title II ADA claim, also set forth

in Howze’s complaint. See Tripati, 821 F.2d 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.”); see also Okwu

v. McKim, 682 F.3d 841, 845 (9th Cir. 2012) (a state is not immune from an action

for damages alleging disability discrimination under Title II of the ADA); Duvall

v. County of Kitsap, 260 F.3d 1124, 1135, 1138-40 (9th Cir. 2001) (setting forth

elements of a Title II ADA claim for monetary damages). We vacate and remand

for the district court to assess the Title II ADA claim in the first instance.

       In light of our disposition, we do not consider Howze’s contentions

regarding the denial of his Rule 60(b)(6) motion for reconsideration.

      VACATED and REMANDED.


                                            2                                    14-56289
