Gregory McClellan v. S. Lozano

695 F. App'x 298

Opinion

MEMORANDUM ***

Gregory McClellan appeals pro se from the magistrate judge’s January 15, 2016 order denying McClellan in forma pauperis (“IFP”) status in his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1054 (9th Cir. 2016). We affirm.

The magistrate judge properly denied IFP status because at the time McClellan brought this action, McClellan was a prisoner and had accumulated three strikes. See 28 U.S.C. § 1915(g); O’Neal v. Price, 531 F.3d 1146, 1154 (9th Cir. 2008) (“Because § 1915(g) .., does not distinguish between dismissals with and without prejudice, ... a dismissal without prejudice may count as a strike.” (citation omitted)).

Defendants’ request for judicial notice (Docket Entry No. 25) is denied.

Defendants’ motions to strike evidence attached to the reply brief (Docket Entry Nos. 31 and 32) are granted.

AFFIRMED.

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