Opinion
No. 13-56742
10-08-2014
GUSTAVO McKENZIE, Plaintiff - Appellant, v. R. CASILLAS; et al., Defendants - Appellees.
NOT FOR PUBLICATION
D.C. No. 3:12-cv-01602-BEN-RBB MEMORANDUM Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Gustavo McKenzie appeals pro se from the district court's order dismissing his 42 U.S.C. § 1983 action for failure to pay the required filing fee after revoking his in forma pauperis status under 28 U.S.C. § 1915(g). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the interpretation and application of § 1915(g), Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007), and for an abuse of discretion a denial of leave to proceed in forma pauperis, O'Loughin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). We affirm.
The district court did not abuse its discretion by revoking McKenzie's in forma pauperis status because McKenzie has three strikes under § 1915(g), and failed to allege that he was under imminent danger of serious physical injury. See Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (if three of a prisoner's prior federal actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, they count as "strikes" under § 1915(g), and the prisoner cannot proceed in forma pauperis unless he or she is under imminent danger of serious physical injury). Moreover, contrary to McKenzie's contention, this court's denial of McKenzie's application to proceed in forma pauperis in a prior appeal counts as a separate strike from the district court's order denying his application to proceed in forma pauperis in the underlying action. See id. (dismissals for failure to state a claim of a prisoner's prior federal actions or appeals counts as "strikes" under § 1915(g)).
AFFIRMED.