                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 26 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KEVIN LYNN FERNANDEZ,                           No. 17-16525

                Plaintiff-Appellant,            D.C. No. 3:16-cv-00350-RCJ-WGC

 v.
                                                MEMORANDUM*
ISIDRO BACA; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                          Submitted December 18, 2017**

Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Kevin Lynn Fernandez, a Nevada state prisoner, appeals pro se from the

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

the filing fee after denying Fernandez in forma pauperis status (“IFP”). We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s



      *
             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).
interpretation and application of § 1915(g). Washington v. L.A. Cty. Sheriff’s

Dep’t, 833 F.3d 1048, 1054 (9th Cir. 2016). We reverse and remand.

      The district court denied Fernandez IFP status on the basis that Fernandez

had filed four prior actions or appeals in federal court that were dismissed for

being frivolous or malicious, or for failing to state a claim. However, the district

court improperly counted Fernandez v. North Dakota Department of Corrections

and Rehabilitation, et al., Case No. 14-1790 (8th Cir. 2014) as a strike because

“appellate affirmances do not count as strikes unless the court expressly states that

the appeal itself was frivolous, malicious or failed to state a claim.” El-Shaddai v.

Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) (citation and internal quotation

marks omitted)).

      Moreover, one of the dismissals relied on by the district court as a strike,

Fernandez v. State of Nevada, et al., Case No 3:06-CV-00511-BES-(VPC) (D.

Nev. January 29, 2007), involved removal of the case from state court by a party

other than Fernandez. In Harris v. Mangum, 863 F.3d 1133, 1141 (9th Cir. 2017),

which was decided after the district court’s dismissal of this action, this court held

that dismissal of a case removed from state court by a party other than a prisoner

cannot constitute a strike under § 1915(g).




                                           2                                    17-16525
      We therefore reverse the judgment and remand for further proceedings

consistent with this disposition.

      REVERSED and REMANDED.




                                       3                                 17-16525
