NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN R. SCHRUBB, Sr., No. 15-15533
Plaintiff-Appellant, D.C. No. 5:13-cv-04163-BLF
v.
MEMORANDUM*
JAGER, Officer; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Kevin R. Schrubb, Sr., a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to pay
the required filing fee after revoking Schrubb’s in forma pauperis (“IFP”) status
because he has “three strikes” under the Prison Litigation Reform Act (“PLRA”),
*
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).
28 U.S.C. § 1915(g). We have jurisdiction 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 vacate and remand.
The district court revoked Schrubb’s IFP status because it concluded that
Schrubb had filed three actions that had been dismissed as frivolous, malicious, or
for failure to state a claim, and that he did not allege that he was in imminent
danger of serious physical harm. See 28 U.S.C. § 1915(g). However, one of the
dismissals that the district court counted as a strike, Schrubb v. Tilton, et al., No.
3:09-cv-02197-JSW (N.D. Cal.), was dismissed, in part, without prejudice to
refiling, on the ground that Schrubb did not identify the Doe defendants. In a case
decided after the district court’s ruling in this case, we held that “[w]hen 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 . . . .”
Washington, 833 F.3d at 1057 (citation and internal quotation marks omitted); see
also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (“[W]hen we
review a dismissal to determine whether it counts as a strike, the style of the
dismissal or the procedural posture is immaterial. Instead, the central question is
whether the dismissal rang the PLRA bells of frivolous, malicious, or failure to
state a claim.” (citations and internal quotation marks omitted)). Accordingly,
because it is unclear whether Schrubb v. Tilton was dismissed in full for being
2 15-15533
frivolous, malicious, or for failure to state a claim, in light of this intervening
authority, we vacate and remand for further proceedings to determine whether
Tilton constitutes a strike.
The district court also concluded that the dismissal in Schrubb v. Bonner, et
al., No. 2:05-cv-01508-LKK-EFB (E.D. Cal.) constituted a strike because it was
dismissed under Heck v. Humphrey, 512 U.S. 477 (1994). However, after the
district court’s decision in this case, in Washington, we clarified the circumstances
under which a Heck dismissal constitutes a strike. In light of this intervening
authority, we leave the question of whether Bonner constitutes a strike to the
district court to consider on remand.
Schrubb’s request for judicial notice (Docket Entry No. 15) is denied.
VACATED and REMANDED.
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