Kevin Brewer v. Yossi Grossbaum , 670 F. App'x 552 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN DEAN BREWER, AKA Michael No. 15-15285
Green,
D.C. No. 2:12-cv-01555-WBS-
Plaintiff - Appellant, DAD
v.
MEMORANDUM*
YOSSI GROSSBAUM, Chaplain; KIM
PETERSON, Supervisor,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, SILVERMAN, and GRABER, Circuit Judges.
California state prisoner Kevin Dean Brewer, AKA Michael Green, appeals
pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for
failure to pay the filing fee after revoking Brewer’s in forma pauperis (“IFP”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
status because he has three strikes under the Prison Litigation Reform Act, 28
U.S.C. § 1915(g). We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Andrews v. King, 398 F.3d 1113, 1118 n.6 (9th Cir. 2005). We vacate and
remand.
The district court revoked Brewer’s IFP status because it concluded that
Brewer had filed three actions that had been dismissed as frivolous, malicious, or
for failure to state a claim, and that he did not allege that he was in imminent
danger of serious physical harm. See 28 U.S.C. § 1915(g). However, one of the
dismissals that the district court counted as a strike was dismissed as barred by
Heck v. Humphrey, 512 U.S. 477 (1994). Because it is unclear whether that prior
action included a claim that both sounded in habeas and sought injunctive relief,
we vacate and remand for further proceedings to determine whether the dismissal
of that action as Heck-barred constitutes a strike. See Washington v. L.A. Cty.
Sheriff’s Dep’t, No. 13-56647, 2016 U.S. App. LEXIS 14854 at *17-20 (9th Cir.
Aug. 12, 2016) (holding that a dismissal of an action that includes a claim that both
sounds in habeas and seeks injunctive relief does not constitute a strike).
Brewer’s motion to hear this case with Appeal No. 15-56509, filed on
February 16, 2016, is denied as unnecessary as it has already been granted.
Brewer’s motion for appointment of counsel, filed on May 2, 2016, is
2 15-15285
denied.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
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