NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS STEWART, Jr., No. 16-16431
Plaintiff-Appellant, D.C. No. 2:16-cv-00590-JAT-DMF
v.
MEMORANDUM*
DEREK BOOTH; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted July 11, 2017**
Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.
Thomas Stewart, Jr., an Arizona state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to pay
the filing fee after denying Stewart’s motion to proceed in forma pauperis (“IFP”)
because he had three strikes under the Prison Litigation Reform Act. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28
U.S.C. § 1915(g). Andrews v. King, 398 F.3d 1113, 1118 n.6 (9th Cir. 2005). As
required by intervening authority, we reverse and remand.
The district court denied Stewart’s IFP application and dismissed the action
without prejudice on the basis that Stewart had filed at least three prior actions in
federal court that were dismissed for being frivolous or malicious, or for failing to
state a claim, and that he did not establish that he was in imminent danger of
serious physical harm. See 28 U.S.C. § 1915(g). One of the prior dismissals relied
on by the court as a strike, Stewart v. Phoenix Police Department, No. 2:03-cv-
02549-EHC-LOA (D. Ariz. May 26, 2014), was dismissed as barred by Heck v.
Humphrey, 512 U.S. 477 (1994). However, the district court’s dismissal in this
action occurred prior to this court’s decision in Washington v. Los Angeles County
Sheriff’s Department, 833 F.3d 1048, 1056-57 (9th Cir. 2016), which concluded
that Heck-barred dismissals do not count as strikes where at least part of the action
sounds in habeas and injunctive relief is sought. We conclude that No. 2:03-cv-
02549-EHC-LOA is not a strike because Stewart sought injunctive relief in that
action so at least part of the action sounded in habeas. We reverse the judgment
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and remand for further proceedings consistent with this disposition.
REVERSED and REMANDED.
3 16-16431