                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 04 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KEVIN DEAN BREWER, AKA Michael                   No. 15-56509
Green,
                                                 D.C. No. 5:13-cv-01368-MWF-
              Plaintiff-Appellant,               AJW

 v.
                                                 MEMORANDUM*
HADJADD, Rabbi, individual and official
capacity; HOWARD GAINES, supervisor,
individual and official capacity,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                  Michael W. Fitzgerald, District Judge, Presiding

                           Submitted October 25, 2016**

Before:      LEAVY, SILVERMAN, and GRABER, Circuit Judges.

      California state prisoner Kevin Dean Brewer, AKA Michael Green, appeals

pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for


      *
             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).
failure to pay the filing fee after revoking Brewer’s in forma pauperis (“IFP”)

status because he has three strikes under the Prison Litigation Reform Act, 28

U.S.C. § 1915(g). We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Andrews v. King, 398 F.3d 1113, 1118 n.6 (9th Cir. 2005). We vacate and

remand.

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

Brewer 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 was dismissed as barred by

Heck v. Humphrey, 512 U.S. 477 (1994). Because it is unclear whether that prior

action included a claim that both sounded in habeas and sought injunctive relief,

we vacate and remand for further proceedings to determine whether the dismissal

of that action as Heck-barred constitutes a strike. See Washington v. L.A. Cty.

Sheriff’s Dep’t, No. 13-56647, 2016 U.S. App. LEXIS 14854 at *17-20 (9th Cir.

Aug. 12, 2016) (holding that a dismissal of an action that includes a claim that both

sounds in habeas and seeks injunctive relief does not constitute a strike).

      Brewer’s motion for appointment of counsel, filed on May 2, 2016, is

denied.


                                           2                                       15-56509
The parties shall bear their own costs on appeal.

VACATED and REMANDED.




                                   3                15-56509
