Kenneth Gibbs v. A. HERRERA; B. McCRARY; E. ENRIQUEZ; R. NAPPEN

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH GIBBS,
Plaintiff-Appellant,
v.
A. HERRERA; B. McCRARY; E.
ENRIQUEZ; R. NAPPEN,
Defendants-Appellees.
No. 22-16698
D.C. No. 2:21-cv-02188-TLN-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted September 12, 2023**
Before: CANBY, CALLAHAN, and OWENS, Circuit Judges.
California state prisoner Kenneth Gibbs appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
violations. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse
of discretion a dismissal for failure to pay the filing fee. Taylor v. Delatoore, 281
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
SEP 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-16698
F.3d 844, 847 (9th Cir. 2002). We vacate and remand.
The district court dismissed Gibbs’s action for failure to pay the filing fee.
However, Gibbs contends that he sent the requisite payment in the form of two
checks that were cashed by the district court on May 5, 2022. Although there is no
record of this payment on the district court docket, in response to the magistrate
judge’s May 10, 2022 order to pay the filing fee, Gibbs submitted a note from the
prison trust office confirming that his checks to the district court were sent and
subsequently cashed on May 5, 2022. Further, Gibbs attached to his objections to
the findings and recommendations an additional statement from the prison trust
office confirming that the district court cashed both checks on May 5, 2022. These
documents support Gibbs’s contention that he complied with the district court’s
order to pay the filing fee. Because neither the magistrate judge in its findings and
recommendations nor the district judge in its order of dismissal addressed these
documents, we vacate the judgment and remand for the district court to consider
these documents in the first instance.
All pending requests are denied.
VACATED and REMANDED.

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