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Ninth Circuit:
Ninth Circuit Declines to Adopt Interpretation That Could Reign-in Prisoner Lawsuits
Opinion Says ‘Rule That Blocks Inmates From Filing Civil Actions for Free Based on History of Meritless Actions Does Not Count Voluntary Dismissals After Findings of Facial Deficiency
By a MetNews Staff Writer
A rule stripping indigent prisoners of the ability to file lawsuits from prison free from cost if they have filed three or more previous cases that were found to be frivolous, malicious, or failed to state a claim upon which relief may be granted will not be triggered by any voluntarily dismissals by the inmate, the Ninth Circuit U.S. Court of Appeals held yesterday.
In Friday’s decision, the court said that the exclusion of voluntary dismissals from the so-called “three-strikes” rule applies even if the withdrawal follows a court order dismissing the complaint, with leave to amend, for failing to state a claim on which relief may be granted because the findings as to the facial deficiency of the pleading are not the “grounds” for the action.
At issue is a provision of the Prison Litigation Reform Act, found at 28 U.S.C. §1915(a), which allows indigent inmates to proceed in forma pauperis (“IFP”), or “without prepayment of fees or security” relating to the commencement of a civil action from prison. An exception to the general rule is found in subdivision (g), which provides:
“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”
Gaming of System
In the opinion, written by Senior Circuit Judge Sidney R. Thomas and joined in by Circuit Judges Milan D. Smith Jr. and Daniel A. Bress, the court acknowledged that the rule may allow for some gaming of the system, as “prisoners may avoid strikes by voluntarily dismissing their cases” after a judge declares a pleading to be without merit, but declared:
“[E]ven though these may be important concerns, ‘[t]hat policy argument must be directed to Congress, not to us.’… And there is a countervailing policy argument— namely that incarcerated litigants should be encouraged not to further pursue actions in which courts have concluded there is a failure to state a claim upon which relief can be granted, but have granted leave to amend.”
Thomas added:
“Even if a court has previously entered findings about whether a case fails to state a claim, those findings are not the grounds for the dismissal. The plaintiff’s…notice [of voluntary dismissal] is.”
The decision reverses an order by District Court Judge Jennifer L. Thurston of the Eastern District of California, revoking the ability of inmate Edward Spencer to proceed in four pending cases without paying filing fees based in part on his having twice voluntarily dismissed lawsuits after a judge found that the complaints failed to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Prior Dismissals
Thomas noted that “Spencer has filed many previous lawsuits while incarcerated.” Four of these matters, which were filed against various California prison officials for constitutional claims asserted under 42 U.S.C. §1983 based on allegations including contentions that he was deprived of receiving mail and subjected to unsanitary dining conditions, are currently on appeal. In each matter, Spencer initially proceeded IFP and pro se.
The matters were initially assigned to Magistrate Judge Gary S. Austin of the Eastern District of California, who issued recommendations to revoke Spencer’s IFP status based on findings that the prisoner had four qualifying “strikes” under §1915(g).
On March 18 of last year, Thurston adopted the findings and recommendations, declaring:
“Plaintiff is informed that failure to pay the filing fees in full in any of these matters within the time allotted may result in a recommendation that they be dismissed or in sua sponte dismissal by the Court.”
Spencer concedes that two of these matters resulted in “strikes” under §1915(g) but disputes that two other actions were disposed of in such a way as to qualify under the section.
In each of those two prior matters, a magistrate judge found during an initial screening process that the complaints failed to state a claim under Rule 12(b)(6) and ordered that the pleadings—but not the actions—be dismissed with leave to amend.
As to one of the actions, Spencer immediately filed a notice under Rule 41(a)(1), which provides that a plaintiff “may dismiss an action without a court order” before the opposing party serves an answer or a motion for summary judgment.
In the second matter, Spencer filed an amended complaint, but the judge found that it did not cure the deficiencies and recommended to the District Court Judge that the matter be dismissed in its entirety. Before any further action was taken, Spencer again filed a notice under Rule 41(a).
Literal Interpretation
Thomas noted that “[t]he Supreme Court has emphasized that the three-strikes provision must be interpreted ‘literally.’ ” He acknowledged that generally the procedural posture of dismissal is immaterial to the analysis, but said:
“[T]here are at least two cases where the procedural posture of a dismissal is dispositive. First, a Rule 12(b)(6) dismissal is always a strike….Second, a Rule 12(b)(1) dismissal is never a strike….because Rule 12(b)(1) dismissals are for ‘lack of subject-matter jurisdiction,’ which is ‘not the same as a dismissal for failure to state a claim,’ or for frivolity or malice.”
Turning to the question of whether a voluntary dismissal qualifies as a strike, he opined:
“Under the PLRA, a strike is any ‘action or appeal…that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.’…In context, the phrase ‘on the grounds that’ requires a court determination. We have repeated that the dismissing court’s order is the primary place to look to determine if the dismissal is a strike.”
He added:
“Thus, the ‘on the grounds that’ clause in 28 U.S.C. § 1915(g) requires ‘grounds’ decided by a court. Voluntary dismissals do not have ‘grounds’ decided by a court.”
Case Law
The defendants point to case law holding that a strike exists where a court dismisses a complaint for failure to state a claim, with leave to amend, and the plaintiff fails to file an amended pleading within the allowable time frame.
Thomas rejected the comparison to the present case, saying:
“[U]nlike [the case]…where the dismissals were effectively delayed entries of judgment for the previous orders, here a voluntary dismissal is not based on any previous findings becoming final. Instead, the voluntary dismissal notice is its own independent basis for dismissal….[V]oluntary dismissals…can happen anytime, for any reason or no reason.”
Turning to public policy considerations, the jurist commented that “[w]e…note that other circuits have adopted this rule for voluntary dismissals, which suggests that the rule will not have grave consequences” and declared:
“Rule 41(a)(1) voluntary dismissals cannot count as strikes, because they are never ‘on the grounds that’ the case was frivolous, malicious, or failed to state a claim. Thus, we reverse the district court’s revocation of Spencer’s IFP status in each of the cases on appeal, and remand for further proceedings.”
The case is Spencer v. Barajas, 24-2441.
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