Vlasich v. S.D. Superior Ct.

325 F. App'x 610

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2009
• Docket: No. 07-15667
• Status: Published

Opinion

MEMORANDUM

**

Steven Vlasich appeals the dismissal of his amended complaint seeking declaratory and injunctive relief under 42 U.S.C. § 1983.¹

Dismissal of Vlasich’s ex post facto claim was proper because the post-conviction amendments to California Penal Code § 2085.5 do not impose additional punishment on Vlasich. Quarles v. Kane, 482 F.3d 1154, 1155 (9th Cir.2007); see also United States v. Gianelli, 543 F.3d 1178, 1183-84 (9th Cir.2008).

The district court did err in ordering a preemptive “strike.” Should Vlasich bring another civil action or appeal the judgment in another proceeding, the court may then decide whether this dismissal should count as a strike. See 28 U.S.C. § 1915(g); see also O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir.2008).

The dismissal of Vlasich’s complaint is AFFIRMED. The order assessing a strike is VACATED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1 . As clarified at oral argument, Vlasich does not appeal the dismissal of his claims against Judge Rodriguez or the San Diego Superior Court challenging the restitution order’s validity or amount. Accordingly, we do not address these claims.