Terrance Irby v. Bernie Warner , 609 F. App'x 423 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRANCE JON IRBY, No. 14-35630
Plaintiff - Appellant, D.C. No. 4:14-cv-05054-EFS
v.
MEMORANDUM*
BERNIE WARNER; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Washington state prisoner Terrance Jon Irby appeals pro se from the district
court’s judgment dismissing for failure to pay the required filing fee his 42 U.S.C.
§ 1983 action alleging various constitutional violations. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo the district court’s interpretation and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application of 28 U.S.C. § 1915(g), Andrews v. Cervantes, 493 F.3d 1047, 1052
(9th Cir. 2007), and review for an abuse of discretion its denial of leave to proceed
in forma pauperis, O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). We
affirm.
The district court did not abuse its discretion by denying Irby’s motion to
proceed in forma pauperis because at least three of Irby’s prior § 1983 actions were
dismissed as frivolous or for failure to state a claim, and Irby did not plausibly
allege that he was “under imminent danger of serious physical injury” at the time
that he lodged the complaint. 28 U.S.C. § 1915(g); see Andrews, 493 F.3d at 1055-
56 (discussing imminent danger exception to three-strikes rule).
Irby’s contentions that the district court judge was biased are unpersuasive.
We do not consider matters not specifically and distinctly raised and argued
in the opening or supplemental briefs, or arguments and allegations raised for the
first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam). We also do not consider documents and facts not presented to the
district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990)
(“Documents or facts not presented to the district court are not part of the record on
appeal.”).
2 14-35630
All pending motions are denied.
AFFIRMED.
3 14-35630