Tony French v. Oregon State Penitentiary

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY FRENCH,
Plaintiff - Appellant,
v.
OREGON STATE PENITENTIARY,
Defendant - Appellee.
No. 14-35271
D.C. No. 6:14-cv-00237-BR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Oregon state prisoner Tony French appeals pro se from the district court’s
order denying his motion to proceed in forma pauperis under 28 U.S.C. § 1915(g)
in his 42 U.S.C. § 1983 action alleging defendant failed to protect him from an
inmate assault. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
FILED
MAR 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 2 --

the district court’s interpretation and application of 28 U.S.C. § 1915(g), Andrews
v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007), and review for an abuse of
discretion its denial of leave to proceed in formal pauperis, O’Loughlin v. Doe, 920
F.2d 614, 616 (9th Cir. 1990). We affirm.
The district court did not abuse its discretion by denying French’s motion to
proceed in forma pauperis because at least three of French’s prior § 1983 actions
were dismissed as frivolous or for failure to state a claim, and French did not
plausibly allege that he was “under imminent danger of serious physical injury” at
the time that he lodged the complaint. 28 U.S.C. § 1915(g); see also Andrews, 493
F.3d at 1055 (discussing imminent danger exception to three-strikes rule).
We do not consider the newly raised factual allegations in French’s opening
brief because they were not presented below. See Padgett v. Wright, 587 F.3d 983,
985 n.2 (9th Cir. 2009) (per curiam).
French’s motion to proceed in forma pauperis on appeal, filed on August 8,
2014, is denied as moot.
AFFIRMED.
2 14-35271

-- 2 of 2 --