NOT FOR PUBLICATION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, No. 11-17257
Plaintiff - Appellant, 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