                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 12 2014

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



                             FOR THE NINTH CIRCUIT


IAN A. WOODS,                                    No. 13-17180

               Plaintiff - Appellant,            D.C. No. 2:13-cv-01314-APG-
                                                 CWH
  v.

LAS VEGAS METROPOLITAN POLICE                    MEMORANDUM*
DEPARTMENT; R. QUINTANA, P
# 6690,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Andrew P. Gordon, District Judge, Presiding

                            Submitted December 5, 2014**

Before:        HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.

       Nevada state prisoner Ian A. Woods appeals pro se from the district court’s

judgment dismissing his 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

          *
             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).
abuse of discretion. Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). We

vacate and remand.

      The district court dismissed this action because Woods, who had been

granted in forma pauperis status, did not timely pay the initial partial filing fee.

However, it did so without determining whether Woods had sufficient funds to pay

the partial filing fee at the time payment was ordered, and Woods has confirmed on

appeal that he in fact lacked sufficient funds. 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). Because the district court did not have

the benefit of this information at the time of dismissal, we vacate and remand for

further proceedings.

      VACATED and REMANDED.




                                            2                                         13-17180
