                                                                            FILED
                             NOT FOR PUBLICATION                             FEB 14 2013

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




                             FOR THE NINTH CIRCUIT



JASON SAUNDERS,                                   No. 12-15020

               Plaintiff - Appellant,             D.C. No. 1:06-cv-01567-AWI-
                                                  GSA
  v.

MATTHEW CATE; et al.,                             MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                            Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Jason Saunders, 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 a filing

fee, after it denied Saunders in forma pauperis status on the ground that Saunders




          *
             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).
had “three strikes” under 28 U.S.C. § 1915(g). We review de novo a district

court’s application of § 1915(g), Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.

2005), and we vacate and remand.

      The district court improperly denied Saunders’ request to proceed in forma

pauperis because Saunders’ proposed amended complaint made plausible

allegations that he was “under imminent danger of serious physical injury” at the

time he lodged the complaint. 28 U.S.C. § 1915(g); see also Andrews v.

Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (an exception to the three-strikes

rule applies “if the complaint makes a plausible allegation that the prisoner faced

‘imminent danger of serious physical injury’ at the time of filing”). Moreover, the

district court erred in denying Saunders leave to file his proposed amended

complaint because it was the first amended complaint in case number 1:06-cv-

01567 and Saunders was entitled to amend his complaint once as a matter of right

prior to a responsive pleading being filed. See Fed. R. Civ. P. 15(a)(1); Jones v.

Bock, 549 U.S. 199, 214 (2007) (“PLRA’s screening requirement does

not—explicitly or implicitly—justify deviating from the usual procedural practice

beyond the departures specified by the PLRA itself.”).




                                          2                                    12-15020
      Saunders’ motion to stay the briefing in this appeal, submitted on December

10, 2012, is denied as moot.

      VACATED and REMANDED.




                                        3                                  12-15020
