Morris

MEMORANDUM **

Leon Eugene Morris, a California state prisoner, appeals pro se from the dismissal without prejudice of his civil rights action brought under 42 U.S.C. § 1983 . The district court dismissed the action pursuant to 28 U.S.C. § 1915 (g) on the ground that Morris had two prior district court cases and one federal appeal that had been dismissed as frivolous or malicious or for failure to state a claim. Morris contends that his prior appeal No. 00-55330 was not a “strike” under § 1915(g) and that § 1915(g) does not apply because he is in imminent physical danger. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm the district court’s judgment.

Once a prisoner has been placed on notice of a potential disqualification under § 1915(g), he bears the ultimate burden of persuading the court that § 1915(g) does not preclude in forma pauperis status. Andrews v. King, 398 F.3d 1113, 1120 (9th Cir.2005). An appeal dismissed for lack of jurisdiction does not constitute a “strike” unless the district court determines that the appeal was frivolous, malicious, or failed to state a claim. Id. at 1120-21 .

In an order to show cause, the district court stated that appeal No.…