                                                                             FILED
                              NOT FOR PUBLICATION                             MAR 25 2013

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




                              FOR THE NINTH CIRCUIT



CHARLES T. DAVIS,                                 No. 12-15018

                Plaintiff - Appellant,            D.C. No. 1:10-cv-01184-LJO-
                                                  GBC
  v.

CLARK J. KELSO, Receiver; et al.,                 MEMORANDUM *

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Lawrence J. O’Neill, District Judge, Presiding

                              Submitted March 12, 2013 **

Before:         PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       California state prisoner Charles T. Davis appeals pro se from the district

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

the court’s order to pay the required filing fee after denying his application to



            *
             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).
proceed in forma pauperis under 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). We vacate and remand.

      The district court properly determined that at least three of Davis’s prior

§ 1983 actions were dismissed on the basis that they were frivolous, malicious, or

failed to state a claim. See 28 U.S.C. § 1915(g); see also Andrews v. King, 398

F.3d 1113, 1121 (9th Cir. 2005) (for purposes of § 1915(g), district court must look

at dismissal orders and other relevant records to determine if the basis of prior

dismissals was that the action was frivolous, malicious, or failed to state a claim).

      However, the district court improperly denied Davis’s application to proceed

in forma pauperis without assessing Davis’s allegations that he faced a serious

threat of imminent physical harm related to contracting Valley Fever from being

housed in certain “endemic” areas of the prison. See Cervantes, 493 F.3d at 1055-

57 (allegation that plaintiff was at risk of contracting HIV or Hepatitis C if housed

in close proximity to inmates with such contagious diseases satisfied the exception

under § 1915(g) that a prisoner under imminent danger of serious physical injury

be allowed to proceed in forma pauperis). Accordingly, we vacate and remand to

allow the district court to assess whether Valley Fever is a serious health condition


                                           2                                    12-15018
and whether Davis sufficiently alleged a serious and ongoing risk of contracting it

at the time he filed his complaint.

      VACATED and REMANDED.




                                          3                                   12-15018
