Lance Reberger v. Michael Koehn , 683 F. App'x 607 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANCE REBERGER, No. 15-17430
Plaintiff-Appellant, D.C. No. 3:15-cv-00468-MMD-
VPC
v.
MICHAEL KOEHN; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Nevada state prisoner Lance Reberger appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 alleging deliberate indifference
to his serious medical needs and retaliation. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the district court’s interpretation and application of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
“three-strikes” rule of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g).
Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). We review for an
abuse of discretion the district court’s denial of a motion to amend a complaint,
City of L.A. v. San Pedro Boat Works, 635 F.3d 440, 446 (9th Cir. 2011), and the
denial of leave to proceed in forma pauperis, O’Loughlin v. Doe, 920 F.2d 614,
616 (9th Cir. 1990). We reverse and remand.
The district court properly concluded that Reberger has three prior strikes, as
this court determined in Reberger v. Baker, Nos. 13-17135 & 14-15142, 657 Fed.
App’x 681 (9th Cir. Aug. 9, 2016).
However, the district court abused its discretion in denying Reberger leave
to proceed in forma pauperis because both the original and proposed amended
complaints plausibly allege that Reberger was under imminent danger of serious
physical injury because defendants continue to refuse to give him his HIV and
seizure medications regularly. See 28 U.S.C. § 1915(g); see also Andrews, 493
F.3d at 1055 (an exception to the three-strikes rule exists “if the complaint makes a
plausible allegation that the prisoner faced ‘imminent danger of serious physical
injury’ at the time of filing”). On remand, the district court shall permit Reberger
to proceed in forma pauperis on the amended complaint.
2 15-17430
Reberger’s “motion for case for submission” and “motion for reversal and
remand” are denied as moot.
REVERSED and REMANDED.
3 15-17430