Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Eastern District of California, David F. Levi, District Judge, Presiding.
Before RYMER, KLEINFELD, and FISHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
California state prisoner Michael S. Yellen appeals pro se the judgment dismissing his civil rights action pursuant to the "three strikes" filing limitation of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(g). We have jurisdiction under 28 U.S.C. § 1291. We review both a challenge to the constitutionality of a statute and the district court's interpretation of a statute de novo. Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.2002). We vacate and remand.
Page 447.
Yellen's contention that two dismissals should not have counted as strikes under 28 U.S.C. § 1915(g), because they occurred prior to the enactment of the PLRA, is foreclosed by Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir.1999).
As the third strike, the district court counted the Ninth Circuit appeal Yellen v. Olivarez, No. 96-16369, which was dismissed for failure to prosecute. However, failure to prosecute is not a ground for dismissal within the ambit of 28 U.S.C. § 1915(g). Accordingly, Yellen v. Olivarez, No. 96-16369 should not have been considered a strike. As the district court did not identify any other qualifying strikes, we vacate the dismissal of Yellen's action and remand.
Appellees shall bear the costs on appeal.
VACATED and REMANDED.