NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR CHARLES FOURSTAR, Jr., No. 19-35024
Plaintiff-Appellant, D.C. No. 4:16-cv-00113-SPW
v.
MEMORANDUM*
MICHAEL ELIASON; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted January 8, 2020**
Before: CALLAHAN, NGUYEN, and HURWITZ, Circuit Judges.
Victor Charles Fourstar, Jr., a federal prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action and imposing a
“strike” under 28 U.S.C. § 1915(g). We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s interpretation and application of § 1915(g).
*
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).
Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1054 (9th Cir. 2016). We
affirm in part, reverse in part, and remand.
The district court dismissed Fourstar’s “banishment” claim for lack of
jurisdiction due to tribal sovereign immunity. A dismissal for lack of subject
matter jurisdiction does not qualify as a strike. See Hoffman v. Pulido, 928 F.3d
1147, 1152 (9th Cir. 2019) (dismissal of action did not qualify as a strike because
some claims were dismissed for lack of subject matter jurisdiction). Because the
entire action was not dismissed for a qualifying reason under the Prison Litigation
Reform Act (“PLRA”), we reverse the imposition of a strike and remand to the
district court with instructions to amend the dismissal order to remove the language
counting the action as a strike. See Washington, 833 F.3d at 1057-58 (“When 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 under the
[PLRA].” (citation omitted)).
In light of this court’s September 20, 2019 order discharging the January 18,
2019 order to show cause only as to the issue of whether the dismissal counted as a
strike under § 1915(g), Fourstar’s contentions regarding the merits of his claims,
other than the § 1915(g) strike issue, are frivolous. We therefore affirm the district
court’s judgment dismissing Fourstar’s action.
We do not consider Fourstar’s renewed motion for appointment of counsel
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(Docket Entry No. 22). In Docket Entry No. 14, this court denied Fourstar’s
motion for appointment of counsel and ordered that no motions for
reconsideration, clarification, or modification of the denial shall be filed or
entertained.
The Clerk will provide to Fourstar copies of the documents requested in
Docket Entry No. 23.
AFFIRMED in part, REVERSED in part, and REMANDED with
instructions.
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