Antoine Leblanc v. Debbie Asuncion ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTOINE LeBLANC, No. 17-55103
Plaintiff-Appellant, D.C. No. 2:16-cv-07522-JLS-AFM
v.
MEMORANDUM*
DEBBIE ASUNCION, Warden, in
individual and official capacity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Antoine LeBlanc, a California state prisoner, appeals pro se from the district
court’s order dismissing his 42 U.S.C. § 1983 action after denying his application
to proceed in forma pauperis status (“IFP”) on the ground that LeBlanc has “three
strikes” under 28 U.S.C. § 1915(g). We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We review de novo the interpretation and application of 28 U.S.C. § 1915(g).
Richey v. Dahne, 807 F.3d 1202, 1206 (9th Cir. 2015). We affirm.
The district court properly denied LeBlanc’s request to proceed in forma
pauperis because at least three of LeBlanc’s prior cases qualified as “strikes” under
28 U.S.C. § 1915(g). See Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013)
(defining when a case is frivolous or malicious, or fails to state a claim, and can be
considered a strike); see also Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th
Cir. 1995) (noting that it was not an abuse of discretion to dismiss a duplicative
complaint as frivolous or malicious under an earlier version of 28 U.S.C. § 1915).
Because we affirm on the ground that the district court properly concluded
LeBlanc had at least three strikes, we treat the dismissal of the action as being
without prejudice. See Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 2008)
(affirming district court’s dismissal of case without prejudice where prisoner had
accumulated three strikes).
In light of our disposition, we do not consider the district court’s order on
the merits of LeBlanc’s claims.
AFFIRMED.
2 17-55103