                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                        APR 19 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

 KEVIN R. SCHRUBB, Sr.,                           No. 15-15533

                   Plaintiff-Appellant,           D.C. No. 5:13-cv-04163-BLF

   v.
                                                  MEMORANDUM*
 JAGER, Officer; et al.,

                   Defendants-Appellees.

                    Appeal from the United States District Court
                        for the Northern District of California
                   Beth Labson Freeman, District Judge, Presiding

                              Submitted April 11, 2017**

Before:       GOULD, CLIFTON, and HURWITZ, Circuit Judges.

        Kevin R. Schrubb, Sr., 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

the required filing fee after revoking Schrubb’s in forma pauperis (“IFP”) status

because he has “three strikes” under the Prison Litigation Reform Act (“PLRA”),



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1915(g). We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1054 (9th Cir.

2016). We vacate and remand.

      The district court revoked Schrubb’s IFP status because it concluded that

Schrubb 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, Schrubb v. Tilton, et al., No.

3:09-cv-02197-JSW (N.D. Cal.), was dismissed, in part, without prejudice to

refiling, on the ground that Schrubb did not identify the Doe defendants. In a case

decided after the district court’s ruling in this case, we held that “[w]hen we are

presented with multiple claims within a single action, we assess a PLRA strike

only when the case as a whole is dismissed for a qualifying reason . . . .”

Washington, 833 F.3d at 1057 (citation and internal quotation marks omitted); see

also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (“[W]hen we

review a dismissal to determine whether it counts as a strike, the style of the

dismissal or the procedural posture is immaterial. Instead, the central question is

whether the dismissal rang the PLRA bells of frivolous, malicious, or failure to

state a claim.” (citations and internal quotation marks omitted)). Accordingly,

because it is unclear whether Schrubb v. Tilton was dismissed in full for being


                                           2                                      15-15533
frivolous, malicious, or for failure to state a claim, in light of this intervening

authority, we vacate and remand for further proceedings to determine whether

Tilton constitutes a strike.

      The district court also concluded that the dismissal in Schrubb v. Bonner, et

al., No. 2:05-cv-01508-LKK-EFB (E.D. Cal.) constituted a strike because it was

dismissed under Heck v. Humphrey, 512 U.S. 477 (1994). However, after the

district court’s decision in this case, in Washington, we clarified the circumstances

under which a Heck dismissal constitutes a strike. In light of this intervening

authority, we leave the question of whether Bonner constitutes a strike to the

district court to consider on remand.

      Schrubb’s request for judicial notice (Docket Entry No. 15) is denied.

      VACATED and REMANDED.




                                            3                                     15-15533
