Araya Wolde-giorgis, Plaintiff-appellant, v. Arizona State Department of Transportation; State Ofarizona, Defendants-appellees, 46 F.3d 1149 (9th Cir. 1995)
Annotate this CaseBefore: SNEED, D.W. NELSON, and TROTT, Circuit Judges.
MEMORANDUM**
Dr. Araya Wolde-Giorgis appeals pro se the district court's denial of his motion to proceed in forma pauperis and dismissal as frivolous of his action against the Arizona Department of Transportation ("ADOT"). Wolde-Giorgis alleged age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-635, and race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000(h). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992), and reverse and remand.
A plaintiff may be denied leave to proceed in forma pauperis if his complaint is frivolous. Neitzke v. Williams, 490 U.S. 321, 324 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Id. at 325. A pro se plaintiff with an arguable claim is entitled to issuance and service of process. Denton, 112 S. Ct. at 1733; Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).
The district court dismissed Wolde-Giorgis's action on the ground that his complaint is "abusive of the judicial process" and malicious because it "merely repeats pending or previously litigated claims." Specifically, the court found that Wolde-Giorgis's present challenge to the ADOT's refusal to hire him for a "Planner II" position was raised in a prior action, Wolde-Giorgis v. ADOT, CIV 92-2353 PHX RCB (D. Ariz. Feb. 25, 1994).
On appeal, Wolde-Giorgis argues that the claims in the present action originate from the ADOT's refusal to hire him following an interview for a Planner II position, while the claims in his prior case originated from ADOT's decision to deny him an interview for a different Planner II position. Liberally construing Wolde-Giorgis's argument, we cannot say that his claims are repetitive and abusive or that they lack an arguable basis in law or in fact. Accordingly, we reverse the district court's dismissal of the action, and remand for issuance and service of process. See Denton, 112 S. Ct. at 1733; Jackson, 885 F.2d at 640.
REVERSED AND REMANDED.
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