Kevin Brewer v. Yossi Grossbaum

MEMORANDUM

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”) 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 , 114 S.Ct. 2364 , 129 L.Ed.2d 383 (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…