Jason Saunders v. Matthew Cate

MEMORANDUM

Jason Saunders, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to pay a filing fee, after it denied Saunders in forma pauperis status on the ground that Saunders had “three strikes” under 28 U.S.C. § 1915 (g). We review de novo a district court’s application of § 1915(g), Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.2005), and we vacate and remand.

The district court improperly denied Saunders’ request to proceed in forma pauperis because Saunders’ proposed amended complaint made plausible allegations that he was “under imminent danger of serious physical injury” at the time he lodged the complaint. 28 U.S.C. § 1915 (g); see also Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir.2007) (an exception to the three-strikes rule applies “if the complaint makes a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). Moreover, the district court erred in denying Saunders leave to file his proposed amended complaint because it was the first amended complaint in case number l:06-cv-01567 and Saunders was entitled to amend his…