                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       FEB 28 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 TERRANCE JON IRBY,                               No. 15-35417

                  Plaintiff-Appellant,            D.C. No. 3:15-cv-05208-RJB

   v.
                                                  MEMORANDUM*
 STATE OF WASHINGTON; et al.,

                  Defendants-Appellees.

                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                           Submitted February 14, 2017**

Before:       GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

        Washington state prisoner Terrance Jon Irby appeals pro se from the district

court’s order denying his application to proceed in forma pauperis (“IFP”) in his 42

U.S.C. § 1983 action. 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),

        *
             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).
Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1054 (9th Cir. 2016), and

for an abuse of discretion its denial of leave to proceed IFP, O’Loughlin v. Doe,

920 F.2d 614, 616 (9th Cir. 1990). We vacate and remand.

      The district court concluded that Irby had filed three actions that had been

dismissed for failure to state claim, and that Irby had not alleged that he was in

“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Intervening

authority, however, has held that “a dismissal due to Younger abstention . . . is not

a strike under the [Prison Litigation Reform Act].” Washington, 833 F.3d at 1058.

One of the prior dismissals relied on by the district court, Irby v. O’Neill, No. 2:13-

cv-00197-JLR (W.D. Wash. Mar. 11, 2013), was a dismissal based on Younger

abstention. Therefore, the district court improperly counted No. 2:13-cv-00197-

JLR as a strike. We vacate the order denying IFP status and remand for further

proceedings.

      Irby’s request for injunctive relief, set forth in his opening brief, is denied.

      VACATED and REMANDED.




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