MICHAEL TIERNEY V. ACO ALO, No. 12-16024 (9th Cir. 2013)

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FILED APR 23 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MICHAEL C. TIERNEY, No. 12-16024 Plaintiff - Appellant, D.C. No. 1:12-cv-00059-SOMKSC v. MEMORANDUM * ACO S. ALO; et al., Defendants - Appellees. Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, Chief Judge, Presiding Submitted April 16, 2013 ** Before: CANBY, IKUTA, and WATFORD, Circuit Judges. Michael C. Tierney, a Hawaii state prisoner, appeals pro se from the district court s order denying his request to proceed in forma pauperis in his 42 U.S.C. § 1983 action alleging deliberate indifference. 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 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 Tierney s request to proceed in forma pauperis because at least three of Tierney s prior § 1983 actions were dismissed on the basis that they were frivolous or failed to state a claim, and Tierney did not provide sufficient allegations to show that he was under imminent danger of serious physical injury at the time he lodged the complaint. 28 U.S.C. § 1915(g); see also Andrews, 493 F.3d at 1055 (an exception to the three-strikes rule exists only where the complaint makes a plausible allegation that the prisoner faced imminent danger of serious physical injury at the time of filing ). AFFIRMED. 2 12-16024

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