GREGORY BONTEMPS V. HARPER, No. 16-16418 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION DEC 29 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT GREGORY C. BONTEMPS, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 16-16418 D.C. No. 2:13-cv-00506-MCE-EFB v. MEMORANDUM* HARPER, Correctional Sergeant, High Desert State Prison, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding Submitted December 18, 2017** Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges. Gregory C. Bontemps, a California state prisoner, appeals pro se from the district court’s order dismissing his 42 U.S.C. § 1983 action for failure to pay the filing fee after revoking his in forma pauperis status (“IFP”) on the ground that Bontemps has “three strikes” under 28 U.S.C. § 1915(g). We have jurisdiction * 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). 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 affirm. The district court properly revoked Bontemps’ IFP status because at least three of Bontemps’ prior cases qualified as “strikes” under 28 U.S.C. § 1915. See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”); Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (defining when a case is frivolous or malicious, or fails to state a claim under 28 U.S.C. § 1915, and can be considered a strike). We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 2 16-16418

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