Lenin Garcia v. Gina Pickett ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LENIN GARCIA, No. 16-56302
Plaintiff-Appellant, D.C. No. 3:16-cv-01606-CAB-BGS
v.
MEMORANDUM*
GINA PICKETT, Correctional Counselor I;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
California state prisoner Lenin Garcia appeals pro se from the district court’s
order dismissing his 42 U.S.C. § 1983 action for failure to pay the filing fee after
denying Garcia’s application to proceed in forma pauperis (“IFP”) on the basis that
Garcia has three strikes under the Prison Litigation Reform Act, 28 U.S.C.
*
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).
§ 1915(g). We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1054 (9th Cir. 2016). We
affirm.
The district court properly dismissed Garcia’s action because three of
Garcia’s prior federal actions constitute strikes, and Garcia failed to pay the filing
fee. See 28 U.S.C. § 1915(g) (precluding prisoner from proceeding IFP where
prisoner has previously brought three or more actions or appeals that were
dismissed as frivolous, malicious, or for failure to state a claim upon which relief
may be granted); Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (defining
“frivolous” as having no basis in law or fact).
AFFIRMED.
2 16-56302