ERIC K'NAPP V. ARLITZ, No. 11-17257 (9th Cir. 2014)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 30 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ERIC CHARLES RODNEY K NAPP, Plaintiff - Appellant, No. 11-17257 D.C. No. 1:09-cv-00412-GBC v. MEMORANDUM* ARLITZ, Prison Captain Guard; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Gerald B. Cohn, Magistrate Judge, Presiding** Submitted May 13, 2014*** Before: CLIFTON, BEA, and WATFORD, Circuit Judges. California state prisoner Eric Charles Rodney K napp appeals pro se from the district court s order revoking in forma pauperis status in his 42 U.S.C. § 1983 * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** K napp consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). action alleging constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court s interpretation and application of 28 U.S.C. § 1915(g), Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007), and 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 reverse and remand in light of intervening authority. The district court revoked K napp s in forma pauperis status because it counted four dismissals as strikes under the Prison Litigation Reform Act. See 28 U.S.C. § 1915(g) (prisoner may generally not bring a civil action in forma pauperis if he has had three or more actions or appeals dismissed as frivolous, malicious, or for failure to state a claim). However, our intervening decision in Silva v. Di Vittorio, 658 F.3d 1090 (9th Cir. 2011), held that a district court s dismissal of a case does not count as a strike under § 1915(g) until the litigant has exhausted or waived his opportunity to appeal . . . [which] means that a dismissal ripens into a strike for § 1915(g) purposes on the date of the Supreme Court s denial or dismissal of a petition for writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ of certiorari expired, if he did not. Id. at 1100 (citation and internal quotation marks omitted); cf. Knapp v. Hogan, 738 F.3d 1106, 1111 (9th Cir. 2013) (later recognizing that K napp has more than three 2 11-17257 dismissals that count as strikes, which disqualify him from proceeding in forma pauperis under 28 U.S.C. § 1915(g) in a future action). Under Silva, two of the four dismissals identified by the district court did not yet count as strikes at the time that K napp filed his complaint because either the Supreme Court had not yet denied K napp s petition for writ of certiorari or his time to file a petition for writ of certiorari had not expired. Accordingly, we reverse and remand in light of this intervening authority. We lack jurisdiction to consider the district court s order denying K napp s motion for reconsideration because K napp failed to file an amended or separate notice of appeal. See Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir. 2007). REVERSED AND REMANDED. 3 11-17257
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