Villegas v. Duck

142 F. App'x 989

Opinion

MEMORANDUM

**

Eleazar Villegas, a California state prisoner, appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action alleging prison officials violated his civil rights by retaliating against him. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal pursuant to 28 U.S.C. § 1915(g). Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.2005). We vacate and remand.

The district court revoked Villegas’s in forma pauperis status, and ultimately dismissed his action, on the ground that three or more of Villegas’s prior federal actions had been dismissed because they were frivolous, malicious, or failed to state a claim, and thus constituted “strikes” under 28 U.S.C. § 1915(g). Our recent decision in Andrews v. King, issued after the district court had issued its ruling in the case, requires that the district court review the orders dismissing the prior actions, and other relevant information, to determine whether the prior actions were in fact “dismissed because they were frivolous, malicious, or failed to state a claim.” See Andrews, 398 F.3d at 1121.

Understandably, the district court’s order of December 10, 2003 does not reflect that the court undertook the factual analysis required by Andrews before revoking Villegas’s in forma pauperis status under 28 U.S.C. § 1915(g). Consequently, we vacate the district court’s judgment and remand for the district court to make the necessary determinations on a more complete factual record.

Villegas’s request for judicial notice is granted.

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 may be provided by 9th Circuit Rule 36-3.