Morris v. Woodford , 224 F. App'x 718 ( 2007 )

MEMORANDUM ^**

Leon Eugene Morris, a California state prisoner, appeals pro se from the dismissal without prejudice of his civil rights action brought under 42 U.S.C. § 1983. The district court dismissed the action pursuant to 28 U.S.C. § 1915(g) on the ground that Morris had two prior district court cases and one federal appeal that had been dismissed as frivolous or malicious or for failure to state a claim. Morris contends that his prior appeal No. 00-55330 was not a “strike” under § 1915(g) and that § 1915(g) does not apply because he is in imminent physical danger. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s judgment.

Once a prisoner has been placed on notice of a potential disqualification under § 1915(g), he bears the ultimate burden of persuading the court that § 1915(g) does not preclude in forma pauperis status. Andrews v. King, 398 F.3d 1113, 1120 (9th Cir.2005). An appeal dismissed for lack of jurisdiction does not constitute a “strike” unless the district court determines that the appeal was frivolous, malicious, or failed to state a claim. Id. at 1120-21.

In an order to show cause, the district court stated that appeal No. 00-55330 had been dismissed for lack of jurisdiction. In his response to the order to show cause, Morris did not show that this prior appeal should not count as a “strike,” nor did he show that he was in imminent physical danger. We therefore affirm the district court’s judgment. See id.

AFFIRMED.

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