                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 25 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



EARNEST CASSELL WOODS, II,                       No. 11-15101

               Plaintiff - Appellant,            D.C. No. 3:10-cv-01859-JSW

  v.
                                                 MEMORANDUM *
BEN CURRY; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                              Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       California state prisoner Earnest Cassell Woods, II, appeals pro se from the

district court’s order denying his request to proceed in forma pauperis in his 42

U.S.C. § 1983 action alleging retaliation. We have jurisdiction under 28 U.S.C.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo the district court’s interpretation and application of 28

U.S.C. § 1915(g). Andrews v. King, 398 F.3d 1113, 1118 (9th Cir. 2005). We

reverse in part, affirm in part, and remand.

      The district court improperly denied Woods’s request to proceed in forma

pauperis because the dismissals of his appeals for lack of jurisdiction were not

“frivolous” solely because the appeals were premature. See id. at 1121 (district

court erred in counting dismissal of an appeal for lack of jurisdiction as a “strike”

under § 1915(g) without first determining, “after careful evaluation of the order

dismissing an action, and other relevant information,” that the action was frivolous,

malicious or failed to state a claim).

      The district court did not abuse its discretion in denying Woods’s motions

for injunctive relief because it had dismissed Woods’s complaint prior to service.

See Fed. R. Civ. P. 65(a)(1) (court may issue preliminary injunction only on notice

to adverse party).

      All outstanding motions are denied.

      Woods shall bear his own costs on appeal.

      REVERSED in part; AFFIRMED in part; and REMANDED.




                                           2                                    11-15101
