Ernest Napper, Jr. v. R. Wong , 419 F. App'x 790 ( 2011 )

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NOT FOR PUBLICATION MAR 09 2011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.
2 09-56245