Chatman v. Early

145 F. App'x 203

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 5, 2005
• Docket: No. 04-17442
• Status: Published

Opinion

MEMORANDUM

**

Charles Chatman, a California state prisoner, appeals pro se district court’s order denying Chatman’s motion for reconsideration of its judgment dismissing without prejudice, pursuant to 28 U.S.C. § 1915(g), his 42 U.S.C. § 1983 action alleging that prison officials violated his constitutional rights. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion. Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1100 (9th Cir.2004). We vacate and remand.

Chapman contends on appeal that the district court erred by dismissing his action pursuant to section 1915(g) because the record does not show that Chapman has, on three or more prior occasions, brought an action that was dismissed as frivolous, malicious, or for failure to state a claim.

Although the district court’s order lists three prior dismissals, the record is devoid of any further information from which to conduct a meaningful review as to whether these dismissals indeed constitute eligible “strikes.” See Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.2005). Accordingly, we vacate the dismissal and remand for further development of the record in light of Andrews. See id.

Chatman’s motion for appointment of counsel on appeal is denied as moot.

VACATED and REMANDED.

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.