                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 20 2015

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



                             FOR THE NINTH CIRCUIT


TONY FRENCH,                                     No. 14-35271

               Plaintiff - Appellant,            D.C. No. 6:14-cv-00237-BR

  v.
                                                 MEMORANDUM*
OREGON STATE PENITENTIARY,

               Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                             Submitted March 10, 2015**

Before:        FARRIS, WARDLAW, and PAEZ, Circuit Judges.

       Oregon state prisoner Tony French appeals pro se from the district court’s

order denying his motion to proceed in forma pauperis under 28 U.S.C. § 1915(g)

in his 42 U.S.C. § 1983 action alleging defendant failed to protect him from an

inmate assault. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

          *
             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).
the district court’s interpretation and application of 28 U.S.C. § 1915(g), Andrews

v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007), and review for an abuse of

discretion its denial of leave to proceed in formal pauperis, O’Loughlin v. Doe, 920

F.2d 614, 616 (9th Cir. 1990). We affirm.

      The district court did not abuse its discretion by denying French’s motion to

proceed in forma pauperis because at least three of French’s prior § 1983 actions

were dismissed as frivolous or for failure to state a claim, and French did not

plausibly allege that he was “under imminent danger of serious physical injury” at

the time that he lodged the complaint. 28 U.S.C. § 1915(g); see also Andrews, 493

F.3d at 1055 (discussing imminent danger exception to three-strikes rule).

      We do not consider the newly raised factual allegations in French’s opening

brief because they were not presented below. See Padgett v. Wright, 587 F.3d 983,

985 n.2 (9th Cir. 2009) (per curiam).

      French’s motion to proceed in forma pauperis on appeal, filed on August 8,

2014, is denied as moot.

      AFFIRMED.




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