NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRANCE JON IRBY, No. 15-35417
Plaintiff-Appellant, D.C. No. 3:15-cv-05208-RJB
v.
MEMORANDUM*
STATE OF WASHINGTON; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Washington state prisoner Terrance Jon Irby appeals pro se from the district
court’s order denying his application to proceed in forma pauperis (“IFP”) in his 42
U.S.C. § 1983 action. 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),
*
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), and
for an abuse of discretion its denial of leave to proceed IFP, O’Loughlin v. Doe,
920 F.2d 614, 616 (9th Cir. 1990). We vacate and remand.
The district court concluded that Irby had filed three actions that had been
dismissed for failure to state claim, and that Irby had not alleged that he was in
“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Intervening
authority, however, has held that “a dismissal due to Younger abstention . . . is not
a strike under the [Prison Litigation Reform Act].” Washington, 833 F.3d at 1058.
One of the prior dismissals relied on by the district court, Irby v. O’Neill, No. 2:13-
cv-00197-JLR (W.D. Wash. Mar. 11, 2013), was a dismissal based on Younger
abstention. Therefore, the district court improperly counted No. 2:13-cv-00197-
JLR as a strike. We vacate the order denying IFP status and remand for further
proceedings.
Irby’s request for injunctive relief, set forth in his opening brief, is denied.
VACATED and REMANDED.
2 15-35417