James v. Madison Street Jail

122 F.3d 27, 97 Daily Journal DAR 9497, 97 Cal. Daily Op. Serv. 5905, 1997 U.S. App. LEXIS 18997, 1997 WL 420293

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 25, 1997
• Docket: Nos. 96-16384, 96-16386
• Status: Published

Opinion

PER CURIAM:

Curtis Ivan James, an Arizona state prisoner at the time these actions were filed, appeals pro se the district court’s dismissal of his complaint for failure to timely provide a trust-account statement pursuant to 28 U.S.C. § 1915(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion,¹ and we reverse and remand.

In both appeals, the district court entered an order stating that James must file a trust-account statement in accordance with § 1915(a)(2) within thirty days to proceed in forma pauperis. James submitted the trust-account statement with a sworn statement that he had mailed the statement within the thirty-day period, but the district court received and filed it after the thirty-day period had run.

We conclude that the rule for timely filing applicable to pro se prisoners articulated in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), applies to the filing of trust-account statements as required by § 1915(a)(2). See Faile v. Upjohn Co., 988 F.2d 985, 986-88 (9th Cir.1993). Because James submitted a sworn statement that he timely complied with the deadline imposed by the district court, “the district court must either accept that allegation as correct or make a factual finding to the contrary upon a sufficient evidentiary showing by the opposing party.” See id. at 988; see also Koch v. Ricketts, 68 F.3d 1191, 1194 (9th Cir.1995). Because the district court failed to make such a factual finding, we vacate the district court’s dismissal of these actions and remand for further proceedings. See Caldwell v. Amend, 30 F.3d 1199, 1203 (9th Cir.1994).

VACATED and REMANDED.

1 . Whether we construe the district court's dismissal as a dismissal for lack of prosecution, for failure to obey an order of the court, or of a complaint as frivolous, the proper standard of review is abuse of discretion. See Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir.1996) (failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992) (failure to obey an order of the court); Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir.1995) (per curiam) (frivolousness).