                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 23 2013

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




                             FOR THE NINTH CIRCUIT



JASON PAUL CHESTER, pro se,                      No. 12-35688

               Plaintiff - Appellant,            D.C. No. 3:12-cv-05473-RBL

  v.
                                                 MEMORANDUM *
TACOMA COMMUNITY COLLEGE,

               Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                            Submitted October 15, 2013 **

Before:        FISHER, GOULD, and BYBEE, Circuit Judges.

       Jason Paul Chester appeals pro se from the district court’s order denying his

application to proceed in forma pauperis. 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. Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir.

          *
             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).
1987). We vacate and remand.

      The district court correctly concluded that the operative complaint was

without merit because Chester failed to state a cognizable claim. 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.”); see also Barker v. Riverside Cnty. Office of Educ., 584 F.3d 821,

825-27 (9th Cir. 2009) (discussing the anti-retaliation provisions of Title II of the

Americans with Disabilities Act (“ADA”) and the Rehabilitation Act); O’Guinn v.

Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (setting forth the

elements of a claim for failure to accommodate under Title II of the ADA and the

Rehabilitation Act).

      However, the court failed to provide Chester, who is pro se, notice of the

defects of the complaint and an opportunity to amend. See Tripati, 821 F.2d at

1370 (“[P]ro se plaintiffs proceeding in forma pauperis ‘must also be given an

opportunity to amend their complaint unless it is absolutely clear that the

deficiencies of the complaint could not be cured.’” (citation and internal quotation

marks omitted)). Accordingly, we vacate and remand for further proceedings

consistent with this disposition.

      Defendant’s request for judicial notice, filed on November 6, 2012, is


                                           2                                    12-35688
denied.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




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