O'Neal v. Price

130 F. App'x 916

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2005
• Docket: No. 04-15611
• Status: Published

Opinion

MEMORANDUM

**

Louis Butler O’Neal appeals from the district court’s dismissal of his pro se civil action under the Three Strikes provision of the Prison Litigation Reform Act, 18 U.S.C. § 1915(g). Subsequent to the district court’s decision, we held that “when the defendant challenges a prisoner’s right to proceed [informa pauperis ], the defendant bears the burden of producing sufficient evidence to establish that § 1915(g) bars the plaintiffs IFP status.” Andrews v. King, 398 F.3d 1113, 1116 (9th Cir.2005) (as amended).

In this case, Appellee Price concedes that, under Andrews, the factual record is insufficient to allow us to affirm the district court’s judgment and asks us to take judicial notice of material not in the record. We decline to do so. See Inwood Labs. v. Ives Labs., 456 U.S. 844, 857 n. 19, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). Consequently, we vacate the judgment below and remand the case to the district court so that “it can make the necessary determinations on the basis of a more complete factual record,” Andrews, 398 F.3d at 1121, and in accordance with the guiding principles set forth in Andrews. See id. at 1120-24.

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.