Charles Davis v. Clark Kelso

MEMORANDUM

California state prisoner Charles T. Davis appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to comply with the court’s order to pay the required filing fee after denying his application to proceed in forma pauperis under 28 U.S.C. § 1915 (g). We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s interpretation and application of § 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir.2007). We vacate and remand.

The district court properly determined that at least three of Davis’s prior § 1983 actions were dismissed on the basis that they were frivolous, malicious, or failed to state a claim. See 28 U.S.C. § 1915 (g); see also Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.2005)(for purposes of § 1915(g), district court must look at dismissal orders and other relevant records to determine if the basis of prior dismissals was that the action was frivolous, malicious, or failed to state a claim).

However, the district court improperly denied Davis’s application to proceed in forma pauperis without assessing Davis’s allegations that he faced a serious threat of imminent physical harm…