                                                                            FILED
                    UNITED STATES COURT OF APPEALS                          OCT 24 2014

                                                                         MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




LEE V. QUILLAR,                                  No. 13-55141

              Plaintiff - Appellant,             D.C. No. 3:12-cv-03004-JAH-
                                                 MDD
  V.                                             Southern District of California,
                                                 San Diego
HERBERT J. EXARHOS, Superior Court
Judge and COUNTY OF SAN DIEGO,
                                                 ORDER
              Defendants - Appellees.


Before:      HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

       We sua sponte withdraw the memorandum disposition filed on July 7, 2014,

and file a replacement memorandum disposition concurrent with this order.

       Quillar’s petition for rehearing en banc and concurrent motion for judicial

notice are denied as moot.
                                                                             FILED
                            NOT FOR PUBLICATION                              OCT 24 2014

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



                             FOR THE NINTH CIRCUIT


LEE V. QUILLAR,                                   No. 13-55141

               Plaintiff - Appellant,             D.C. No. 3:12-cv-03004-JAH-
                                                  MDD
  V.

HERBERT J. EXARHOS, Superior Court                MEMORANDUM*
Judge; COUNTY OF SAN DIEGO,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                              Submitted June 25, 2014**

Before:        HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

       California state prisoner Lee V. Quillar appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to pay the

required filing fee after denying his application to proceed in forma pauperis under


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

novo the district court’s interpretation and application of § 1915(g), Andrews v.

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

denial of leave to proceed in forma pauperis, O’Loughin v. Doe, 920 F.2d 614, 616

(9th Cir. 1990). We vacate and remand.

       The district court properly concluded that two of Quillar’s prior federal

actions or appeals constitute strikes under § 1915(g), and that the dismissals in

both are final. See Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (if a

prisoner’s prior federal actions or appeals were dismissed for failure to state a

claim, they count as “strikes” under § 1915(g)); see also Silva v. Di Vittorio, 658

F.3d 1090, 1100 (9th Cir. 2011) (“[A] district court’s dismissal of a case does not

count as a ‘strike’ under § 1915(g) until the litigant has exhausted or waived his

opportunity to appeal.”).

       However, it is not clear whether the third dismissal on which the district

court relied constitutes a strike. Quillar filed this action in state court, alleging

federal and state law claims, and though defendants successfully removed it, this

may not constitute a “federal” action for purposes of § 1915(g). Moreover, the

dismissal of only Quillar’s federal claims in this action, and the remand of his state

law claims, does not satisfy the requirement under § 1915(g) that the entire action


                                            2                                      13-55141
be dismissed for failure to state a claim or as frivolous. Therefore, we vacate the

denial of Quillar’s application to proceed in forma pauperis and the dismissal of his

action for failure to pay the filing fee, and remand.

      Because we remand for further proceedings, we do not consider Quillar’s

arguments regarding the merits of his claims, including in his letter to the court,

filed on June 18, 2014. Accordingly, Quiller’s motion for judicial notice of

documents related to the merits of his claims, filed on April 26, 2013, is denied.

      VACATED and REMANDED.




                                           3                                    13-55141
