Unpublished Disposition, 930 F.2d 28 (9th Cir. 1991)
Annotate this CaseEdgar PERRY, Plaintiff-Appellant,v.CITY OF OAKLAND, CALIFORNIA, Defendant-Appellee.
No. 90-15961.
United States Court of Appeals, Ninth Circuit.
Submitted March 20, 1991.* Decided April 1, 1991.
Before K.K. HALL, DAVID R. THOMPSON and RYMER, Circuit Judges.
MEMORANDUM**
Edgar Perry appeals pro se the district court's order denying him leave to file his pro se civil rights complaint in forma pauperis on the grounds that the action was frivolous and failed to state a claim. In his complaint, Perry alleged that the City of Oakland denied him housing on the basis of national origin. We review for an abuse of discretion, O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990), and vacate and remand.
Under 28 U.S.C. § 1915(a), a district court may grant in forma pauperis status if a litigant is unable to pay the costs of the suit. Nevertheless, the district court may deny leave to proceed in forma pauperis if the complaint is frivolous. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). A complaint is frivolous when it lacks an arguable basis in law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A pro se plaintiff with an arguable claim is entitled to issuance and service of process. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).
Here, it is not absolutely clear that Perry cannot state a civil rights claim against the defendants. Therefore, we vacate and remand for the district court to serve the defendants.
VACATED AND REMANDED.1
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Perry's request for oral argument is denied
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3
We note that after Perry filed a notice of appeal, the district court entered a judgment dismissing the action for lack of prosecution and for failure to obey a court order dated June 4, 1990. "A denial of a motion to proceed in forma pauperis is a final judgment that is immediately appealable pursuant to 28 U.S.C. § 1291". Tripati v. Rison, 847 F.2d 548 (9th Cir. 1988). The filing of a notice of appeal generally divests the district court of jurisdiction over the matters appealed. Davis v. United States, 667 F.2d 822, 824 (9th Cir. 1982). Thus, the district court had no jurisdiction over the action at the time it entered judgment
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