FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC CHARLES RODNEY KNAPP, No. 11-17512
Plaintiff-Appellant,
D.C. No.
v. 2:05-cv-02520-
KJM-CMK
HOGAN, C.O.; R. POE, C.O.; J.
ETHEREDGE, C.O.; T. GUTIERREZ,
C.O.; MARY LATTIMORE, WARDEN, OPINION
C.O.; LINDA WARREN, C.O.; J.
WHITTLE, C.O.; STEVE WHITE; C.
BROWN; DANZIGER; HEIN; KAISER;
KANIPE; KEELAND; KING; SAUCEDA;
SMITH; - ALI; FOWLER; MESA;
NELSON; O’CONNOR; STEWART;
VASQUEZ; CAMPBELL; CARILLO;
CHERRY; DOHERTY; GENTILE;
HENDERSON; KLINEFELTER; OLSEN;
SEINWERTH; D. BROWN; KUDLATA;
LAGUNA; LINCOLN; RENDON;
REYES; SUBIA; MYNIER; BOYD;
KERNAN; SILVA; HICKMAN;
KNOWLES; EMIGH; GRANNIS;
HANSEN; HURDLE; MELCHING;
PRESLEY; RIANDA; TAYLOR; URIBE;
M. BROWN; BROYLES;
CLEVENSTINE; HENSLEY; KNIPP;
LEEWORTHY; MCNEIL; REAVES;
ROBINSON; STANLEY,
Defendants-Appellees.
2 KNAPP V. HOGAN
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted
November 6, 2013—San Francisco, California
Filed December 26, 2013
Before: Jerome Farris, Ferdinand F. Fernandez,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Farris
SUMMARY*
Prison Litigation Reform Act
The panel dismissed a California state prisoner’s
42 U.S.C. § 1983 appeal because the prisoner was
disqualified from proceeding in forma pauperis under the
Prison Litigation Reform Act for having three prior strikes.
The panel held that repeated and knowing violations of
Federal Rule of Civil Procedure 8(a)’s “short and plain
statement” requirement count as strikes for purposes of the
Prison Litigation Reform Act, 28 U.S.C. § 1915(g), when the
opportunity to correct the pleadings was afforded and there
was no modification within a reasonable time.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KNAPP V. HOGAN 3
COUNSEL
Mark T. Roche (argued), Baker & McKenzie LLP, San
Francisco, California; Erin Tanner and Angela Vigil, Baker
& McKenzie LLP, Dallas, Texas, for Plaintiff-Appellant.
Jaime Ganson (argued), Deputy Attorney General, Office of
the California Attorney General, Sacramento, California, for
Defendants-Appellees J. Etheredge, Linda Warren, T.
Gutierrez, R. Poe, Hogan, and Mary Lattimore.
Peter C. Zilaff (argued), Longyear, O’Dea & Lavra, LLP,
Sacramento, California, for Defendant-Appellee J. Whittle.
Damon M. Thurston (argued) and Geoffrey A. Beaty, Rankin,
Sproat, Mires, Beaty & Reynolds, Oakland, California, for
Defendant-Appellee Steve White.
OPINION
FARRIS, Senior Circuit Judge:
Knapp is a California state prisoner who alleges various
civil rights claims against prison and other state officials
under 42 U.S.C. § 1983. The general theory behind these
claims is that prison officials began a long course of
retaliatory conduct, of which the governmental actors were
aware, because of Knapp’s mother’s website—a website
dedicated to exposing prison corruption and fighting for
inmates’ rights. The district court granted summary judgment
for the defendants. Knapp appealed. The defendants now
move to dismiss, arguing that Knapp is disqualified from
proceeding in forma pauperis.
4 KNAPP V. HOGAN
Under the Prison Litigation Reform Act, a prisoner may
not proceed in forma pauperis after having three prior actions
dismissed for certain enumerated reasons (these are called
“strikes”). 28 U.S.C. § 1915(g). Knapp has filed many civil
actions, but in contention here are three district court cases
and two appeals. All three of the trial court actions resulted in
dismissal under Federal Rule of Civil Procedure 8(a):
Knapp’s pleadings were dismissed for being too long and
incoherent. See Knapp v. Knowles, No. 2:03-cv-00394 (E.D.
Cal. 2004); Knapp v. Knowles, No. 2:06-cv-00453 (E.D. Cal.
2007); Knapp v. Harrison, No. 06-cv-07702 (C.D. Cal. 2008).
Knapp appealed two of these dismissals, and this Court
denied relief after receiving certifications from the district
court that the appeals were “not in good faith.” Knapp v.
Knowles, No. 04-16701 (9th Cir. 2005); Knapp v. Harrison,
No. 08-56629 (9th Cir. 2009). At issue is whether at least
three of these dismissals counted as a strike under the Prison
Litigation Reform Act, thus disqualifying Knapp from in
forma pauperis status. We have jurisdiction pursuant to
28 U.S.C. § 1291. We hold that repeated and knowing
violations of Federal Rule of Civil Procedure 8(a)’s “short
and plain statement” requirement are strikes as “fail[ures] to
state a claim,” 28 U.S.C. § 1915(g), when the opportunity to
correct the pleadings has been afforded and there has been no
modification within a reasonable time.
I.
A.
The Prison Litigation Reform Act limits the ability of an
inmate to file an action in forma pauperis:
KNAPP V. HOGAN 5
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…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.
28 U.S.C. § 1915(g). We have interpreted the first two forms
of dismissal—“frivolous” and “malicious”—according to
their plain meaning. Andrews v. King, 398 F.3d 1113, 1121
(9th Cir. 2005). A claim is “frivolous” when it is without
“basis in law or fact,” and “malicious” when it is “filed with
the intention or desire to harm another.” Id. We have
interpreted the final form of dismissal under the statute,
“fail[ure] to state a claim upon which relief may be granted,”
to be essentially synonymous with a Federal Rule of Civil
Procedure 12(b)(6) dismissal. See Moore v. Maricopa Cnty.
Sheriff’s Office, 657 F.3d 890, 893 (9th Cir. 2011) (citing past
cases) (“Congress chose to mirror the language of Federal
Rule of Civil Procedure 12(b)(6)”).
The question in this case is how Rule 8(a) dismissals
comport with the Prison Litigation Reform Act’s strike
requirements. Rule 8 requires that a pleading “must contain”
a “short and plain statement” of the grounds for jurisdiction
and the claim, as well as a demand for relief sought. Fed. R.
Civ. P. 8(a). Violations of this Rule warrant dismissal, but
there are multiple ways that it can be violated. One well-
known type of violation is when a pleading says too
little—the baseline threshold of factual and legal allegations
required was the central issue in the Iqbal line of cases. See,
e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Rule is
6 KNAPP V. HOGAN
also violated, though, when a pleading says too much.
Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1058 (9th Cir. 2011) (“[W]e have never held—and we
know of no authority supporting the proposition—that a
pleading may be of unlimited length and opacity. Our cases
instruct otherwise.”) (citing cases); see also McHenry v.
Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996) (affirming a
dismissal under Rule 8, and recognizing that “[p]rolix,
confusing complaints such as the ones plaintiffs filed in this
case impose unfair burdens on litigants and judges”).1
It is well settled that, in determining a § 1915(g) “strike,”
the reviewing court looks to the dismissing court’s action and
the reasons underlying it. Andrews, 398 F.3d at 1121 (holding
that reviewing courts should make “careful evaluation” of
“the orders dismissing those actions and other relevant
information,” and should “consider[] the underlying court
orders [and] mak[e] an independent assessment”). This means
that the procedural mechanism or Rule by which the
dismissal is accomplished, while informative, is not
dispositive. It cannot be true, then, that a Rule 8(a) dismissal
is categorically included or excluded from counting as a
§ 1915(g) “strike.” Each dismissal under the Rule must be
assessed independently: did the Rule 8(a) dismissal result
from the court’s appraisal of the merits of the case (i.e., was
it “frivolous” or did it “fail to state a claim”), or did the
dismissal result from an appraisal of the prisoner’s state of
mind (i.e., “malicious”)? It is best practice for a district court
to expressly indicate when a dismissal falls into one of the
three categories.
1
Of course, the plain text of the Rule suggests that there are other
possible ways that it could be violated—say, a failure to demand any
relief. This also shows that Rule 8(a) and Rule 12(b)(6) can overlap.
KNAPP V. HOGAN 7
B.
The burden of establishing that three strikes have accrued
is on the party challenging the prisoner’s right to proceed in
forma pauperis. Andrews, 398 F.3d at 1116. If a prima facie
case is made out, the burden then shifts to the prisoner-
plaintiff to rebut it. Id. If the record is not determinative,
remand to the district court is appropriate. Id. Here, the
defendants argue that Knapp has accumulated five strikes,
and point to five prior dismissals of actions or appeals—three
from the district court, and two dismissed appeals.
The dismissed appeals clearly count as strikes because
they relied on district court findings that the appeal “[was]
not taken in good faith,”2 Knapp v. Knowles, No. 04-16701
(9th Cir. 2005); Knapp v. Harrison, No. 08-56629 (9th Cir.
2009), and lack of “good faith” in this context has been held
to be equivalent to a finding of frivolity. Gardner v. Pogue,
558 F.2d 548, 551 (9th Cir. 1977).
The three district court dismissals are also strikes. In each
case, Knapp filed complaints that violated Rule 8(a)’s “short
and plain statement” requirement, was given leave to amend,
but nevertheless failed to correct the violation after repeated
warnings by the district court. We hold that dismissals
following the repeated violation of Rule 8(a)’s “short and
plain statement” requirement, following leave to amend, are
dismissals for failure to state a claim under § 1915(g). While
past cases have found that this type of strike is accrued by a
Rule 12(b)(6) dismissal, they do not hold that this is the only
2
Under the Prison Litigation Reform Act, IFP appeals may not be taken
if the trial court “certifies in writing that it is not taken in good faith.”
28 U.S.C.A. § 1915(a)(3).
8 KNAPP V. HOGAN
possible way. See Moore v. Maricopa Cnty. Sheriff’s Office,
657 F.3d 890, 893 (9th Cir. 2011) (citing cases). We find the
reasoning of the Seventh Circuit to be persuasive: after an
incomprehensible complaint is dismissed under Rule 8 and
the plaintiff is given, but fails, to take advantage of the leave
to amend, “the judge [is] left with [] a complaint that, being
irremediably unintelligible, [gives] rise to an inference that
the plaintiff could not state a claim.” See Paul v. Marberry,
658 F.3d 702, 705 (7th Cir. 2011). When a litigant knowingly
and repeatedly refuses to conform his pleadings to the
requirements of the Federal Rules, it is reasonable to
conclude that the litigant simply cannot state a claim.
Such a narrow expansion of the definition of “failure to
state a claim” beyond Rule 12(b)(6) dismissals is fully in
harmony with the purposes of the Prison Litigation Reform
Act. In assessing the constitutionality of § 1915(g), we
recognized that the Act’s three-strike rule “was enacted to
curtail the extraordinary costs of frivolous prisoners suits and
minimize such costs to the taxpayers.” Rodriguez v. Cook,
169 F.3d 1176, 1181 (9th Cir. 1999) (“[P]risoners file a
disproportionate number of frivolous suits…because of
‘potential gains and low opportunity costs.’… Requiring
prisoners to pay filing fees for suits will force them to go
through the same thought process non-inmates go through
before filing a suit, i.e., is filing this suit worth the costs?”
(internal citation omitted)). The animating concern was
obvious: too many prisoner lawsuits were wastes of the
courts’ valuable time. H.R. REP. NO. 104-21 (1995), at 7
(“Too many frivolous lawsuits are clogging the courts,
seriously undermining the administration of justice.”).
Complaints that are filed in repeated and knowing violation
of Federal Rule 8’s pleading requirements are a great drain on
the court system, and the reviewing court cannot be expected
KNAPP V. HOGAN 9
to “fish a gold coin from a bucket of mud.” U.S. ex rel. Garst
v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003).
Here, the district court dismissed one of Knapp’s actions
for “repeated disobedience of…Rule 8 of the Federal Rules
of Civil Procedure.” Knapp v. Knowles, No. 2:03-cv-00394
(E.D. Cal. 2004) (emphasis added). In another action, the
district court dismissed for “repeated failure to comply with
Fed. R. Civ. P. 8.” Knapp v. Knowles, No. 2:06-cv-00453
(E.D. Cal. 2007) (emphasis added). In the final case, Knapp
v. Harrison, the court’s rationale for dismissal noted that
“plaintiff has proceeded with knowledge of the pleading
requirements and that affording plaintiff a further opportunity
to state his claims in a proper manner would be a pointless
exercise.” Knapp v. Harrison, No. 06-cv-07702 (C.D. Cal.
2008). These cases were dismissed because Knapp, after
having been given numerous chances to perfect his
pleadings,“fail[ed] to state a claim.” 28 U.S.C. § 1915(g).
Knapp accrued two strikes for the Ninth Circuit
dismissals, and three additional strikes for the district court
dismissals. He has more than met the requirement for a
revocation of in forma pauperis status under the Prison
Litigation Reform Act. His appeal is DISMISSED.
DISMISSED.