Montue v. Butler , 101 F. App'x 751 ( 2004 )

MEMORANDUM ^**

John C. Montue, a California state prisoner, appeals pro se the district court’s judgment denying his request to proceed in forma pauperis under 28 U.S.C. § 1915(g) and dismissing his 42 U.S.C. § 1983 action alleging prison and state officials were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s dismissal, Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir.1997), and we affirm.

The district court properly denied Montue leave to proceed in forma pauperis and dismissed his action because Montue had previously filed three or more actions that were frivolous or failed to state a claim for relief, and he did not allege facts indicating that he was in imminent danger of serious physical harm in the instant action. See 28 U.S.C. § 1915(g); Tierney, 128 F.3d at 1311-12.

We construe the district court’s dismissal as a dismissal without prejudice to Montue’s filing a new action upon payment of the filing fees.

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.