Richey v. Dahne, No. 12-36045 (9th Cir. 2015)
Annotate this CasePlaintiff appealed the dismissal of his civil rights action for failure to state a claim under Rule 12(b)(6). A motions panel granted plaintiff's motion for in forma pauperis (IFP) status on appeal. Defendant filed a motion to revoke plaintiff's IFP status under the "three strikes" provision of the Litigation Reform Act (PLRA), 28 U.S.C. 1915(g). Defendant cites the Supreme Court's recent decision in Coleman v. Tollefson, where the Supreme Court left open the question presented in this case. The court held that a prisoner is entitled to IFP status on appeal from the trial court's dismissal of a third complaint instead of in an attempt to file several additional complaints. In Thaut I, failure to exhaust was not “clear on the face of the complaint,” and the magistrate judge considered a declaration about the prison grievance system submitted by defendant Thaut when making her decision. The court concluded that Thaut I was not dismissed for failure to state a claim, but was rather a grant of summary judgment to defendant. Consequently, it was not a strike under the PLRA. The court concluded that Thaut II and Thaut III constitute two strikes. The court denied defendant's motion to revoke the IFP status on appeal, holding that dismissal of the complaint in the action underlying this appeal does not constitute a “prior occasion” under the PLRA, and plaintiff had not accumulated a third strike before he filed this appeal. Accordingly, the court denied the motion to revoke plaintiff's IFP status.
Court Description: Prisoner Civil Rights. The panel denied a motion filed by the appellee which sought to revoke appellant’s in forma pauperis status on appeal under the “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), and the panel also reversed, in an unpublished memorandum disposition filed jointly with its opinion, the district court’s dismissal of appellant’s lawsuit for failure to state a claim, and remanded. The panel rejected appellee’s contention that appellant did not qualify for in forma pauperis status because he had received four strikes before filing his appeal. Addressing the first strike, the panel held that a magistrate judge’s March 2012 dismissal of appellant’s action did not qualify as a strike for frivolousness because neither an appeals panel nor subsequent judges followed the magistrate judge’s reasoning, indicating that reasonable judges differed on the merits. The panel further determined that the magistrate judge’s March 2012 dismissal could not be considered a strike for failure to state a claim because the magistrate considered evidence submitted by the defendant when making her decision. The panel therefore construed the March 2012 dismissal as a grant of summary judgment to the defendant. The panel agreed that appellant had acquired two strikes in another case. Addressing an issue left open by the Supreme Court’s recent decision in Coleman v. Tollefson, 135 RICHEY V. DAHNE 3 S. Ct. 1759 (2015), the panel held that a prisoner is entitled to in forma pauperis status on appeal from the trial court’s dismissal of a third-strike lawsuit. The panel concluded that the district court’s dismissal of the complaint in this case did not constitute a “prior occasion” under the Prison Litigation Reform Act, and that therefore appellant had not accumulated a third strike before he filed this appeal.
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