                                                                            FILED
                            NOT FOR PUBLICATION                             SEP 29 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


MARLON BLACHER,                                  No. 14-56998

               Plaintiff - Appellant,            D.C. No. 2:14-cv-07985-UA-AGR

 v.
                                                 MEMORANDUM*
B. DIEBALL, Correctional Sergeant,
individual and official capacity; ELVIN
VALENZUELA, Warden, individual and
official capacity,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, Chief Judge, Presiding

                           Submitted September 21, 2015**

Before:        REINHARDT, LEAVY, and BERZON, Circuit Judges.

      Marlon Blacher, a California state prisoner, appeals pro se from the district

court’s order denying his request to proceed in forma pauperis (“IFP”) in his action


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
alleging various claims in connection with prison disciplinary proceedings. We

have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the

denial of leave to proceed IFP, and review de novo a determination that a

complaint lacks arguable substance in law or fact. Tripati v. First Nat’l Bank &

Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). We vacate and remand.

      The district court properly concluded that Blacher’s international law claims

were frivolous. See id. at 1370. However, the court did not have the benefit of our

recent decision in Rodriguez v. Steck, 795 F.3d 1187 (9th Cir. 2015) (order), which

explained that “a district court’s denial of leave to proceed in forma pauperis is an

abuse of discretion unless the district court first provides a plaintiff leave to amend

the complaint or finds that amendment would be futile.” Here, the district court

did not address whether amendment of Blacher’s equal protection claim would be

futile and did not give Blacher leave to amend. Moreover, it is not absolutely clear

that the deficiencies in the equal protection claim or Blacher’s due process and

Eighth Amendment conditions-of-confinement claims could not be cured by

amendment, and it appears that Blacher may have intended to allege a First

Amendment retaliation claim, which the district court did not address.

Accordingly, we vacate and remand for the district court to redetermine Blacher’s

entitlement to IFP, in light of the fact that Blacher may have stated a First


                                           2                                     14-56998
Amendment claim and is entitled to leave to amend his other constitutional claims.

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      All pending motions are denied.

      VACATED and REMANDED.




                                         3                                   14-56998
