Kevin Brewer v. Hadjadd

U.S. Court of Appeals for the Ninth Circuit
Kevin Brewer v. Hadjadd, 670 F. App'x 558 (9th Cir. 2016)

Kevin Brewer v. Hadjadd

Opinion

MEMORANDUM **

California state prisoner Kevin Dean Brewer, AKA Michael Green, appeals pro se from the district court’s judgment dis *559 missing his 42 U.S.C. § 1983 action for failure to pay the filing fee after revoking Brewer’s in forma pauperis (“IFP”) status because he has three strikes under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Andrews v. King, 398 F.3d 1113, 1118 n.6 (9th Cir. 2005). We vacate and remand.

The district court revoked Brewer’s IFP status because it concluded that Brewer 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 was dismissed as barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Because it is unclear whether that prior action included a claim that both sounded in habeas and sought injunctive relief, we vacate and remand for further proceedings to determine whether the dismissal of that action as Hecfc-barred constitutes a strike. See Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1055-58 (9th Cir. 2016) (holding that a dismissal of an action that includes a claim that both sounds in habeas and seeks in-junctive relief does not constitute a strike).

Brewer’s motion for appointment of counsel, filed on May 2, 2016, is denied.

The parties shall bear their own costs on appeal,

VACATED and REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Reference

Full Case Name
Kevin Dean BREWER, AKA Michael Green, Plaintiff-Appellant, v. HADJADD, Rabbi, Individual and Official Capacity; Howard Gaines, Supervisor, Individual and Official Capacity, Defendants-Appellees
Status
Unpublished