Leon Morris v. Petersen ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEON EUGENE MORRIS, No. 16-15088
Plaintiff-Appellant, D.C. No. 3:15-cv-02169-WHO
v.
MEMORANDUM*
PETERSEN, Sergeant; et al.,
Defendants-Appellees.
LEON EUGENE MORRIS, No. 16-15091
Plaintiff-Appellant, D.C. No. 3:15-cv-01858-WHO
v.
IPPOLITO, Sergeant; et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of California
William H. Orrick, District Judge, Presiding
Submitted December 18, 2017**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
California state prisoner Leon Eugene Morris appeals pro se from the district
court’s judgments dismissing his 42 U.S.C. § 1983 actions under the Prison
Litigation Reform Act, 28 U.S.C. § 1915(g), and Federal Rule of Civil Procedure
41(b). We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under § 1915(g). Andrews v. King, 398 F.3d 1113, 1118 & n.6 (9th Cir.
2005). We vacate and remand.
The district court denied Morris’s motions to proceed in forma pauperis
(“IFP”) on the basis that Morris had brought at least three prior actions in federal
court that were dismissed as frivolous, malicious, or for failure to state a claim, and
Morris failed to show that he was “under imminent danger of serious physical
injury” at the time that he lodged his complaints. 28 U.S.C. § 1915(g). However,
at the time of its decisions, the district court did not have the benefit of El-Shaddai
v. Zamora, 833 F.3d 1036 (9th Cir. 2016), in which this court concluded that an
appeal dismissed for failure to pay the filing fee after the revocation of IFP status
on appeal does not constitute a strike under § 1915(g) if this court makes no
finding that the appeal falls within one of the grounds enumerated in § 1915(g).
See id. at 1043. We vacate the judgments and remand for the district court to
reconsider Morris’s IFP motions in light of this intervening opinion.
VACATED and REMANDED.
2 16-15088