97 Cal. Daily Op. Serv. 5905, 97 Daily Journal D.A.R. 9497

122 F.3d 27 97 Cal. Daily Op. Serv. 5905 , 97 Daily Journal D.A.R. 9497

Curtis Ivan JAMES, Plaintiff-Appellant, v. MADISON STREET JAIL; Jail Commander, Sgt. A3061; Howard, Officer, A4500; Wade, Sgt., A831; Granados, Officer, Officer Dipietro; Officer Layton; Joe Arpaio, Sheriff; Madison St. Kitchen, Defendants-Appellees. Curtis Ivan JAMES, Plaintiff-Appellant, v. RICH, CPO; Prichard, CPO; Deputy Warden Whitley; Engle CSO 6821; CSO Gutierrez, 6811, Defendants-Appellees.

Nos. 96-16384, 96-16386.

United States Court of Appeals, Ninth Circuit.

Submitted July 14, 1997. * Decided July 25, 1997.

Curtis Ivan James, Los Angeles, California, pro se, for Plaintiff-Appellant.

No appearance for Defendants-Appellees.

Appeals from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. Nos. CV-96-01062-RCB(SLV), CV-96-01172-RCB(SLV).

Before: HUG, Chief Judge, and KOZINSKI and LEAVY, Circuit Judges.

PER CURIAM:

1

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.

2

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.

3

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).

4

VACATED and REMANDED.

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4 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)