Jason Saunders v. Matthew Cate;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON SAUNDERS,
Plaintiff - Appellant,
v.
MATTHEW CATE; et al.,
Defendants - Appellees.
No. 12-15020
D.C. No. 1:06-cv-01567-AWI-
GSA
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Jason Saunders, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to pay a filing
fee, after it denied Saunders in forma pauperis status on the ground that Saunders
FILED
FEB 14 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

12-15020 2
had “three strikes” under 28 U.S.C. § 1915(g). We review de novo a district
court’s application of § 1915(g), Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.
2005), and we vacate and remand.
The district court improperly denied Saunders’ request to proceed in forma
pauperis because Saunders’ proposed amended complaint made plausible
allegations that he was “under imminent danger of serious physical injury” at the
time he lodged the complaint. 28 U.S.C. § 1915(g); see also Andrews v.
Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (an exception to the three-strikes
rule applies “if the complaint makes a plausible allegation that the prisoner faced
‘imminent danger of serious physical injury’ at the time of filing”). Moreover, the
district court erred in denying Saunders leave to file his proposed amended
complaint because it was the first amended complaint in case number 1:06-cv-
01567 and Saunders was entitled to amend his complaint once as a matter of right
prior to a responsive pleading being filed. See Fed. R. Civ. P. 15(a)(1); Jones v.
Bock, 549 U.S. 199, 214 (2007) (“PLRA’s screening requirement does
not—explicitly or implicitly—justify deviating from the usual procedural practice
beyond the departures specified by the PLRA itself.”).

-- 2 of 3 --

12-15020 3
Saunders’ motion to stay the briefing in this appeal, submitted on December
10, 2012, is denied as moot.
VACATED and REMANDED.

-- 3 of 3 --