KEVIN SCHRUBB, SR. V. JAGER, No. 15-15533 (9th Cir. 2017)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 19 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT KEVIN R. SCHRUBB, Sr., Plaintiff-Appellant, U.S. COURT OF APPEALS No. 15-15533 D.C. No. 5:13-cv-04163-BLF v. MEMORANDUM* JAGER, Officer; et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding Submitted April 11, 2017** Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges. Kevin R. Schrubb, Sr., a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to pay the required filing fee after revoking Schrubb’s in forma pauperis (“IFP”) status because he has “three strikes” under the Prison Litigation Reform Act (“PLRA”), * 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). 28 U.S.C. § 1915(g). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1054 (9th Cir. 2016). We vacate and remand. The district court revoked Schrubb’s IFP status because it concluded that Schrubb had filed three actions that had been dismissed as frivolous, malicious, or for failure to state a claim, and that he did not allege that he was in imminent danger of serious physical harm. See 28 U.S.C. § 1915(g). However, one of the dismissals that the district court counted as a strike, Schrubb v. Tilton, et al., No. 3:09-cv-02197-JSW (N.D. Cal.), was dismissed, in part, without prejudice to refiling, on the ground that Schrubb did not identify the Doe defendants. In a case decided after the district court’s ruling in this case, we held that “[w]hen we are presented with multiple claims within a single action, we assess a PLRA strike only when the case as a whole is dismissed for a qualifying reason . . . .” Washington, 833 F.3d at 1057 (citation and internal quotation marks omitted); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (“[W]hen we review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.” (citations and internal quotation marks omitted)). Accordingly, because it is unclear whether Schrubb v. Tilton was dismissed in full for being 2 15-15533 frivolous, malicious, or for failure to state a claim, in light of this intervening authority, we vacate and remand for further proceedings to determine whether Tilton constitutes a strike. The district court also concluded that the dismissal in Schrubb v. Bonner, et al., No. 2:05-cv-01508-LKK-EFB (E.D. Cal.) constituted a strike because it was dismissed under Heck v. Humphrey, 512 U.S. 477 (1994). However, after the district court’s decision in this case, in Washington, we clarified the circumstances under which a Heck dismissal constitutes a strike. In light of this intervening authority, we leave the question of whether Bonner constitutes a strike to the district court to consider on remand. Schrubb’s request for judicial notice (Docket Entry No. 15) is denied. VACATED and REMANDED. 3 15-15533
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