                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 09 2011

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




                            FOR THE NINTH CIRCUIT



ERNEST NAPPER, JR.,                               No. 09-56245

              Plaintiff - Appellant,              D.C. No. 2:09-cv-03446-UA-AN

  v.
                                                  MEMORANDUM *
R. K. WONG, individual and official
capacity, Associate Warden; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                   Arthur Nakazato, Magistrate Judge, Presiding **

                           Submitted February 15, 2011 ***

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

       California state prisoner Ernest Napper, Jr., appeals pro se from the district

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

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

       **
            The parties consented to the jurisdiction of the magistrate judge. See
28 U.S.C. § 636(c).
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
42 U.S.C. § 1983 complaint. We have jurisdiction under 28 U.S.C. § 1291. We

review for an abuse of discretion, O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.

1990), and we affirm.

      The district court did not abuse its discretion by denying Napper’s IFP

request because Napper failed to complete two questions on his IFP application

concerning his financial capabilities, and the district court was unable to determine

whether he was eligible for IFP status. See 28 U.S.C. § 1915(a)(1) (requiring that

IFP application include information on “all assets such prisoner possesses”);

United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (per curiam) (when a

claim of poverty is made under § 1915, it is essential for the application to state the

facts as to poverty with some particularity, definiteness and certainty).

      We note, however, that in light of an intervening change in law, Napper may

have a viable claim. See Byrd v. Maricopa County Sheriff’s Department, No.07-

16640, 2011 WL 13920 (9th Cir. Jan. 5 2011) (en banc) (a cross-gender strip

search conducted in the absence of emergency circumstances is unconstitutional

under the Fourth Amendment).

      We deny Napper’s motion for appointment of counsel on appeal.

      AFFIRMED.




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