GUSTAVO MCKENZIE V. R. CASILLAS, No. 13-56742 (9th Cir. 2014)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 8 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GUSTAVO McKENZIE, Plaintiff - Appellant, No. 13-56742 D.C. No. 3:12-cv-01602-BENRBB v. MEMORANDUM* R. CASILLAS; et al., Defendants - Appellees. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted September 23, 2014** Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges. California state prisoner Gustavo McKenzie appeals pro se from the district court s order dismissing his 42 U.S.C. § 1983 action for failure to pay the required filing fee after revoking his in forma pauperis status under 28 U.S.C. § 1915(g). * 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). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the interpretation and application of § 1915(g), Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007), and for an abuse of discretion a denial of leave to proceed in forma pauperis, O Loughin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). We affirm. The district court did not abuse its discretion by revoking McKenzie s in forma pauperis status because McKenzie has three strikes under § 1915(g), and failed to allege that he was under imminent danger of serious physical injury. See Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (if three of a prisoner s prior federal actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, they count as strikes under § 1915(g), and the prisoner cannot proceed in forma pauperis unless he or she is under imminent danger of serious physical injury). Moreover, contrary to McKenzie s contention, this court s denial of McKenzie s application to proceed in forma pauperis in a prior appeal counts as a separate strike from the district court s order denying his application to proceed in forma pauperis in the underlying action. See id. (dismissals for failure to state a claim of a prisoner s prior federal actions or appeals counts as strikes under § 1915(g)). AFFIRMED. 2 13-56742
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