Silva v. Olson, et al., No. 08-15620 (9th Cir. 2011)
Annotate this CasePlaintiff, a Washington State prisoner, sought relief under 42 U.S.C. 1983 for alleged violations of his First and Fourteenth Amendment right of access to the courts and alleged supplemental state law claims for conversion and fraud. Along with his complaint, plaintiff moved to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. 1915. Plaintiff subsequently appealed the district court's sua sponte dismissal of his pro se civil rights action for failure to state a claim upon which relief could be granted. In light of the Prisoner Litigation Reform Act's (PLRA), 28 U.S.C. 1915(g), "three-strikes" provision, the court concluded that because three of the five dismissals on which defendants relied were not final at the time plaintiff took his appeal, they could not count against him in this case. Therefore, the court declined to revoke plaintiff's IFP status. The court also reversed the district court's order dismissing plaintiff's right to access the courts, retaliation, and state law conversion claims and remanded for further proceedings. The court affirmed the district court's judgment as to plaintiff's Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1968, claim because the district court properly concluded that the deficiencies in plaintiff's complaint could not be cured by an amendment.
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