Opinion
No. 06-15869.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 16, 2007.
Leon Eugene Morris, Soledad, CA, pro se.
Appeal from the United States District Court for the Northern District of California, Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-05-04677-MJJ.
Before: KOZINSKI, LEAVY, and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Leon Eugene Morris, a California state prisoner, appeals pro se from the dismissal without prejudice of his civil rights action brought under 42 U.S.C. § 1983. The district court dismissed the action pursuant to 28 U.S.C. § 1915(g) on the ground that Morris had two prior district court cases and one federal appeal that had been dismissed as frivolous or malicious or for failure to state a claim. Morris contends that his prior appeal No. 00-55330 was not a "strike" under § 1915(g) and that § 1915(g) does not apply because he is in imminent physical danger. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's judgment.
Once a prisoner has been placed on notice of a potential disqualification under § 1915(g), he bears the ultimate burden of persuading the court that § 1915(g) does not preclude in forma pauperis status. Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). An appeal dismissed for lack of jurisdiction does not constitute a "strike" unless the district court determines that the appeal was frivolous, malicious, or failed to state a claim. Id., at 1120-21.
In an order to show cause, the district court stated that appeal No. 00-55330 had been dismissed for lack of jurisdiction. In his response to the order to show cause, Morris did not show that this prior appeal should not count as a "strike," nor did he show that he was in imminent physical danger. We therefore affirm the district court's judgment. See id. AFFIRMED.