                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 18 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

THOMAS STEWART, Jr.,                            No. 16-16431

                Plaintiff-Appellant,            D.C. No. 2:16-cv-00590-JAT-DMF

 v.
                                                MEMORANDUM*
DEREK BOOTH; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                   James A. Teilborg, District Judge, Presiding

                             Submitted July 11, 2017**

Before:      CANBY, KOZINSKI, and HAWKINS, Circuit Judges.

      Thomas Stewart, Jr., an Arizona 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 Stewart’s motion to proceed in forma pauperis (“IFP”)

because he had three strikes under the Prison Litigation Reform Act. We have


      *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28

U.S.C. § 1915(g). Andrews v. King, 398 F.3d 1113, 1118 n.6 (9th Cir. 2005). As

required by intervening authority, we reverse and remand.

      The district court denied Stewart’s IFP application and dismissed the action

without prejudice on the basis that Stewart had filed at least three prior actions in

federal court that were dismissed for being frivolous or malicious, or for failing to

state a claim, and that he did not establish that he was in imminent danger of

serious physical harm. See 28 U.S.C. § 1915(g). One of the prior dismissals relied

on by the court as a strike, Stewart v. Phoenix Police Department, No. 2:03-cv-

02549-EHC-LOA (D. Ariz. May 26, 2014), was dismissed as barred by Heck v.

Humphrey, 512 U.S. 477 (1994). However, the district court’s dismissal in this

action occurred prior to this court’s decision in Washington v. Los Angeles County

Sheriff’s Department, 833 F.3d 1048, 1056-57 (9th Cir. 2016), which concluded

that Heck-barred dismissals do not count as strikes where at least part of the action

sounds in habeas and injunctive relief is sought. We conclude that No. 2:03-cv-

02549-EHC-LOA is not a strike because Stewart sought injunctive relief in that

action so at least part of the action sounded in habeas. We reverse the judgment




                                           2                                     16-16431
and remand for further proceedings consistent with this disposition.

      REVERSED and REMANDED.




                                         3                             16-16431
