Earnest Woods, II v. Ben Curry

MEMORANDUM

California state prisoner Earnest Cassell Woods, II, appeals pro se from the district court’s order denying his request to proceed in forma pauperis in his 42 U.S.C. § 1983 action alleging retaliation. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s interpretation and application of 28 U.S.C. § 1915 (g). Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.2005). We reverse in part, affirm in part, and remand.

The district court improperly denied Woods’s request to proceed in forma pauperis because the dismissals of his appeals for lack of jurisdiction were not “frivolous” solely because the appeals were premature. See id. at 1121 (district court erred in counting dismissal of an appeal for lack of jurisdiction as a “strike” under § 1915(g) without first determining, “after careful evaluation of the order dismissing an action, and other relevant information,” that the action was frivolous, malicious or failed to state a claim).

The district court did not abuse its discretion in denying Woods’s motions for injunctive relief because it had dismissed Woods’s complaint prior to service. See Fed.R.Civ.P. 65(a)(1) (court may issue preliminary…