                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 15 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GREGORY McCLELLAN,                              No. 16-15149

                Plaintiff-Appellant,            D.C. No. 1:10-cv-00386-LJO-MJS

 v.
                                                MEMORANDUM*
S. LOZANO, Parole Agent - CDCR; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Eastern District of California
                  Michael J. Seng, Magistrate Judge, Presiding**

                            Submitted August 9, 2017***

Before:      SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

      Gregory McClellan appeals pro se from the magistrate judge’s January 15,

2016 order denying McClellan in forma pauperis (“IFP”) status in his 42 U.S.C.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              McClellan consented in writing to proceed before a magistrate judge.
See 28 U.S.C. § 636(c). Defendants’ consent is inferred from their conduct during
litigation. See Roell v. Withrow, 538 U.S. 580, 590 (2003).
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1054 (9th Cir. 2016). We

affirm.

      The magistrate judge properly denied IFP status because at the time

McClellan brought this action, McClellan was a prisoner and had accumulated

three strikes. See 28 U.S.C. § 1915(g); O’Neal v. Price, 531 F.3d 1146, 1154 (9th

Cir. 2008) (“Because § 1915(g) . . . does not distinguish between dismissals with

and without prejudice, . . . a dismissal without prejudice may count as a strike.”

(citation omitted)).

      Defendants’ request for judicial notice (Docket Entry No. 25) is denied.

      Defendants’ motions to strike evidence attached to the reply brief (Docket

Entry Nos. 31 and 32) are granted.

      AFFIRMED.




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