FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS W.S. RICHEY, No. 12-36045
Plaintiff-Appellant,
D.C. No.
v. 3:12-cv-05060-
BHS
D. DAHNE,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted
October 16, 2015—Seattle, Washington
Filed December 8, 2015
Before: William A. Fletcher and Ronald M. Gould, Circuit
Judges, and David A. Ezra,* District Judge.
Opinion by Judge Gould
*
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
2 RICHEY V. DAHNE
SUMMARY**
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also reversed, in an unpublished memorandum disposition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
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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.
COUNSEL
Edward A. Piper, Stoel Rives LLP, Portland, Oregon, for
Plaintiff-Appellant.
Haley Beach (argued), Assistant Attorney General,
Corrections Division; Robert W. Ferguson, Attorney General,
Washington State Office of the Attorney General, Olympia,
Washington, for Defendant-Appellee.
OPINION
GOULD, Circuit Judge:
Thomas W.S. Richey appeals from the district court’s
dismissal of his civil rights action for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). A motions
panel granted Richey’s motion for in forma pauperis (IFP)
status on appeal. Dahne later filed a motion to revoke
Richey’s IFP status under the “three strikes” provision of the
Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g).
Dahne’s motion raises the question whether a prisoner may
maintain IFP status when appealing the dismissal of his third-
strike lawsuit, an issue left open by the Supreme Court’s
4 RICHEY V. DAHNE
recent decision in Coleman v. Tollefson, 135 S. Ct. 1759,
1764–65 (2015). Because we conclude that the PLRA does
not bar a prisoner from receiving IFP status on appeal of his
third-strike dismissal, we deny Dahne’s motion.1
I
As an inmate at the Stafford Creek Corrections Center,
Richey filed a grievance on November 11, 2011, alleging that
a guard denied him his “right to yard, a shower, and clean
underwear.”2 Richey alleged that he did not know the guard’s
name and that he described her “accurately” as an “extremely
obese Hispanic female guard.” The grievance was returned
to Richey with a note to “Rewrite- appropriately. Just stick
to the issue of what happened, when, who was involved.”
Richey submitted a revised grievance on November 17, 2011,
containing similar allegations and similar references to the
guard’s weight, with the words “who,” “when,” and “what
happened” inserted into the narrative. The grievance was
again returned to him with an order to “Rewrite as directed.
Hispanic Female is adiquit [sic]. Extremely Obese is un-
necessary and inappropriate.”
1
In a memorandum disposition filed jointly with this opinion, we also
reverse the district court’s dismissal of Richey’s lawsuit for failure to state
a claim and we remand for further proceedings.
2
On appeal from dismissal for failure to state a claim, we “accept all
factual allegations in the complaint as true and construe the pleadings in
the light most favorable to the nonmoving party.” Taylor v. Yee, 780 F.3d
928, 935 (9th Cir. 2015) (citation omitted).
RICHEY V. DAHNE 5
Rather than rewrite the grievance, Richey wrote a kite3 to
the grievance coordinator on November 28, 2011, asking for
clarification of the word “adiquit”and explaining that his
description of the guard’s weight was “necessary and
appropriate in helping him identify her,” as he did not know
her name. He asked the coordinator “not to punish [him] by
rejecting [his] grievance because [the coordinator] disagreed
with [his] choice of language.” When Richey did not receive
a response, he wrote another kite on December 7 asking
“ARE YOU GOING TO PROCESS MY PROPERLY
SUBMITTED GRIEVANCE OR WHAT? I’M NOT
REWRITING IT SO DO YOUR JOB AND PROCESS IT.”
Dahne responded in writing, “No, due to your decision not to
rewrite as requested your grievance has been administraitevly
[sic] withdrawn.”
Seeking damages, Richey sued Dahne pro se for violating
his First Amendment right “to redress grievances and to be
free of retaliation” and “for violating [his] freedom of
speech.” The district court dismissed Richey’s complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim, ruling that Richey “provide[d] no authority for
the proposition that insulting a prison guard is protected
conduct” and “failed to allege that his right to redress his
grievances ha[d] been chilled by the official’s refusal to
accept his offensive grievance.” The district court also
revoked Richey’s IFP status at that time.
Richey filed a timely notice of appeal and moved for IFP
status on appeal. A motions panel granted the motion, stating
that its “review of the record indicates that appellant is
3
In prison terminology, a kite is a form used by prison inmates to
communicate with staff.
6 RICHEY V. DAHNE
entitled to proceed in forma pauperis” under 28 U.S.C.
§ 1915(a). After Richey was appointed pro bono counsel and
briefing was completed, Dahne moved to revoke Richey’s
IFP status under the “three strikes” provision of the PLRA.
See 28 U.S.C. § 1915(g).
II
A litigant generally qualifies for IFP status if he“is unable
to pay [filing] fees or give security therefor.” 28 U.S.C.
1915(a)(1). Congress passed the Prison Litigation Reform
Act in 1996 to “reduce the quantity and improve the quality
of prisoner suits,” instituting several reforms to prevent
prisoners from filing meritless claims in the federal court
system. Jones v. Bock, 549 U.S. 199, 203–04 (2007) (quoting
Porter v. Nussle, 534 U.S. 516, 524 (2002)). One reform was
the introduction of a “three strikes” rule that bars prisoner
litigants from receiving IFP status in a civil action or appeal
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.
28 U.S.C. § 1915(g).
Dahne argues that Richey does not qualify for IFP status
because Richey received four strikes before filing this appeal
on December 17, 2012: dismissal of the complaint in Richey
v. Thaut, No. C11-5680 (W.D. Wash. Mar. 26, 2012) (Thaut
RICHEY V. DAHNE 7
I); dismissal of another civil complaint, Richey v. Thaut, No.
C11-5755 (W.D. Wash. May 16, 2012) (Thaut II); dismissal
of the appeal in that case, Richey v. Thaut, No. 12-35632 (9th
Cir. Nov. 15, 2012) (Thaut III); and the district court’s
dismissal of the complaint in this case. “[O]nce a prisoner
has been placed on notice of the potential disqualification
under § 1915(g) by either the district court or the defendant,
the prisoner bears the ultimate burden of persuading the court
that § 1915(g) does not preclude IFP status.” Andrews v.
King, 398 F.3d 1113, 1120 (9th Cir. 2005).
We review de novo the “interpretation and application” of
the PLRA’s three strikes provision. Id. at 1118. This
includes de novo review of whether a district court correctly
issued a strike under the PLRA in a prior case. See id. at
1120–21 (declining to accept district court’s characterization
of a prior dismissal as a strike); Belanus v. Clark, 796 F.3d
1021, 1032 & n.3 (9th Cir. 2015) (Fernandez, J., concurring
in part and dissenting in part). Reviewing the dismissals that
Dahne claims constitute “strikes” against Richey, we
conclude that Richey has not received “three strikes” and is
thus entitled to IFP status.
A. Richey v. Thaut, No. C11-5680 (W.D. Wash. Mar.
26, 2012) (Thaut I)
Thaut I was a civil complaint containing allegations
similar to this case: Richey submitted a grievance for being
denied his right to shower by an “extremely obese female
Hispanic guard,” but when Thaut asked Richey to rewrite the
grievance without “objectionable language,” Richey sued
instead. The magistrate judge determined that Richey did not
exhaust his administrative remedies because he “simply failed
to follow the prescribed procedure and failed to amend his
8 RICHEY V. DAHNE
grievance when he was asked to do so,” recommending
dismissal without prejudice and “that the dismissal count as
a strike.” The magistrate judge reasoned that Richey’s failure
to exhaust rendered his claim “frivolous” because Richey was
“very familiar with the prison grievance system and the
requirements for pleading a civil rights action.” The district
court summarily adopted the magistrate judge’s
recommendation.
On appeal, we affirmed the dismissal of Thaut I, see
Richey v. Thaut, 509 F. App’x 659 (9th Cir. 2013), but the
panel did not follow the magistrate judge’s reasoning.
Instead, we relied on an alternate argument, holding that
“[t]he district court did not clearly err in finding that Richey
was required to appeal the non-grievability determination to
the grievance program manager and failed to do so.”4 Id. at
660. That we declined to follow the magistrate judge’s
reasoning raises a question about its correctness; notably, we
did not assess a strike on appeal.
Additionally, when the magistrate judge
here—incidentally the same magistrate judge as in Thaut
I—was presented with a similar fact pattern, she did not rely
on the same reasoning as she did in Thaut I. Instead, she
recommended dismissal on exhaustion grounds for reasons
similar to our decision affirming Thaut I on appeal: that
Richey “did nothing to advance his complaint that Defendant
4
Thaut’s brief on appeal primarily echoed the magistrate judge’s
conclusion that Richey needed to file an amended grievance before suing,
but our conclusion was based on an alternative argument that Thaut
mentioned only in passing: that Richey “had the opportunity to request
review of his second grievance that was found not grievable to the
Grievance Program Manager,” but “chose not to avail himself of this
procedure.” But see note 5, infra.
RICHEY V. DAHNE 9
Dahne had refused to ‘process his grievance for no good
reason.’” She also characterized this suit as “frivolous” and
recommended it count as a strike. The district court did not
adopt her recommendation, however—the district judge
expressed hesitation about the correctness of the magistrate
judge’s ruling5 and requested additional briefing on the
exhaustion issue. Dahne then withdrew his motion to dismiss
for failure to exhaust administrative remedies.
Because subsequent judges—including the magistrate
judge herself in a later case—did not follow the reasoning by
which the magistrate judge dismissed Thaut I for non-
exhaustion, we conclude that reasonable judges may differ
about the merits of her conclusion. The dismissal in Thaut I
was not a strike for frivolousness. See Neitzke v. Williams,
490 U.S. 319, 325 (1989) (defining frivolousness under the
IFP statute as having no legal issues “arguable on their
merits”) (quoting Anders v. California, 386 U.S. 738, 744
(1967)).
Nor can the dismissal in Thaut I be considered a strike for
“fail[ure] to state a claim upon which relief may be granted,”
28 U.S.C. § 1915(g), i.e., dismissal under Fed. R. Civ. P.
12(b)(6). See Andrews, 398 F.3d at 1121 (equating § 1915(g)
with Rule 12(b)(6)). The magistrate judge in Thaut I treated
the motion to dismiss for failure to exhaust administrative
remedies as “an unenumerated 12(b) motion,” following
5
While our decision Richey v. Thaut, 509 F. App’x 659 (9th Cir. 2013),
concluded that “[t]he district court did not clearly err in finding that
Richey was required to appeal the non-grievability determination to the
grievance program manager and failed to do so,” id. at 660, the record in
this case showed that under the prison’s policies, a “request for rewriting
. . . can not be appealed to the Grievance Program Manager.”
10 RICHEY V. DAHNE
Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). We
later overruled Wyatt en banc, clarifying that “failure to
exhaust is more appropriately handled under the framework
of the existing rules,” such as Rule 12(b)(6) and Rule 56
summary judgment. Albino v. Baca, 747 F.3d 1162, 1166
(9th Cir. 2014) (en banc), cert. denied sub nom. Scott v.
Albino, 135 S. Ct. 403 (2014). If the district court
“consider[s] evidence submitted by the parties in reaching its
decision, we construe the district court’s order as a grant of
summary judgment on the issue of exhaustion.” Williams v.
Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015); see also
Albino, 747 F.3d at 1166.
In Thaut I, failure to exhaust was not “clear on the face of
the complaint,” Albino, 747 F.3d at 1166, and the magistrate
judge considered a declaration about the prison grievance
system submitted by defendant Thaut when making her
decision. Thaut I was therefore not dismissed for failure to
state a claim, but was rather a grant of summary judgment to
the defendant. Consequently, it was not a strike under the
PLRA.
B. Richey v. Thaut, No. C11-5755 (W.D. Wash. May
16, 2012) (Thaut II)
In Thaut II, Richey filed a grievance after he was charged
for envelopes that he never received. Thaut rejected the
grievance because Richey “did not provide an invoice number
for the order of envelopes.” When Richey resubmitted the
grievance with the explanation that he did not have the
number because he did not have a receipt, Thaut classified his
grievance as “withdrawn.” But Richey then submitted a
separate grievance on the same matter that was accepted and
resulted in Richey being refunded, so the district court ruled
RICHEY V. DAHNE 11
that Richey failed to state a plausible claim that Thaut
violated his right to file grievances. This ruling was correct,
and it was Richey’s first strike under the PLRA.
C. Richey v. Thaut, No. 12-35632 (9th Cir. Nov. 15,
2012) (Thaut III)
Richey then appealed the dismissal of Thaut II to us. A
motions panel determined that the appeal was frivolous and
declined to grant Richey IFP status. The panel did not
dismiss the appeal, however—it instead stated that Richey
could still “pursue this appeal despite the court’s finding that
it is frivolous” if he paid the filing fee, noting that
“[o]therwise, the appeal will be dismissed by the Clerk for
failure to prosecute, regardless of further filings.” Richey’s
appeal was then dismissed four weeks later “for failure to pay
the docketing/filing fees in this case.”
In O’Neal v. Price, 531 F.3d 1146 (9th Cir. 2008), we
held that “when a district court disposes of an in forma
pauperis complaint ‘on the grounds that [the claim] is
frivolous, malicious, or fails to state a claim upon which
relief may be granted,’ such a complaint is ‘dismissed’ for
purposes of § 1915(g) even if the district court styles such
dismissal as denial of the prisoner’s application to file the
action without prepayment of the full filing fee.” Id. at 1153
(alteration in original). O’Neal’s reasoning applies equally to
the situation in Thaut III, as we rejected Richey’s request for
IFP status because the appeal was frivolous even though we
did not dismiss the appeal until later when Richey did not pay
the filing fee. The dismissal of the appeal in Thaut III was
Richey’s second strike.
12 RICHEY V. DAHNE
D. The dismissal of the complaint in this case
Dahne argues that Richey received an additional strike
when the district court dismissed the lawsuit at issue here for
failure to state a claim. Dahne cites the Supreme Court’s
recent decision in Coleman v. Tollefson, 135 S. Ct. 1759
(2015). In Coleman, a prisoner had already received two
strikes when a third complaint was dismissed for failure to
state a claim, and he appealed that dismissal. Id. at 1762.
While that appeal was pending, the prisoner filed multiple
other lawsuits and moved to receive IFP status while doing
so. Id. The Supreme Court concluded that the prisoner was
not entitled to IFP status in those successive suits, holding
that “[a] prior dismissal on a statutorily enumerated ground
counts as a strike even if the dismissal is the subject of an
appeal.” Id. at 1763. The Court, however, left open the
question presented here: whether 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. Id. at 1764–65.6 We conclude that a prisoner is
entitled to IFP status while appealing his third-strike
dismissal.
The Supreme Court in Coleman based its holding on “the
plain language of” § 1915(g), stating that “[l]inguistically
6
Prior to Coleman, the law in this circuit was that “a district court’s
dismissal of a case does not count as a ‘strike’ under § 1915(g) until the
litigant has exhausted or waived his opportunity to appeal,” i.e., “‘the date
of the Supreme Court’s denial or dismissal of a petition for writ of
certiorari, if the prisoner filed one, or from the date when the time to file
a petition for writ of certiorari expired, if he did not.’” Silva v. Di Vittorio,
658 F.3d 1090, 1100 (9th Cir. 2011) (quoting Hafed v. Fed. Bureau of
Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011)). Silva’s holding does not
survive Coleman.
RICHEY V. DAHNE 13
speaking, we see nothing about the phrase ‘prior occasions’
that would transform a dismissal into a dismissal-plus-
appellate-review.” Id. at 1763. The United States argued as
amicus curiae in Coleman, however, that “[t]he phrase ‘prior
occasions’ is most sensibly read as referring to strikes
imposed in prior-filed suits, not to those imposed in an earlier
stage of the same suit.” Brief for the United States as Amicus
Curiae Supporting Respondents, Coleman v. Tollefson,
135 S. Ct. 1759 (2015) (No. 13-1333), 2015 WL 272362, at
*25.; see also Coleman, 135 S. Ct. at 1765 (noting the
Solicitor General’s argument that “a trial court dismissal
qualifies as a strike only if it occurred in a prior, different,
lawsuit” (emphasis in original)).
We agree with the Solicitor General’s interpretation of
§ 1915. The Supreme Court’s holding in Coleman was based
in part on “the way in which the law ordinarily treats trial
court judgments.” 135 S. Ct. at 1764. While judgments are
immediately preclusive as to successive suits, see id., they are
certainly not preclusive to the panel on appeal. Denying IFP
review of a district court’s third strike dismissal would
prevent us from performing our “appellate function” and
would “freeze out meritorious claims or ossify district court
errors.” Henslee v. Keller, 681 F.3d 538, 543 (4th Cir. 2012)
(citations omitted). Furthermore, the Supreme Court’s
statement in Coleman that a prisoner could refile his fourth
lawsuit IFP if his third strike were reversed on appeal, 135 S.
Ct. at 1764, would be of no consolation if a prisoner could not
appeal the erroneously-issued third strike IFP. And the
Court’s concern in Coleman that a dismissal-plus-appellate-
review rule would “produce a leaky filter” allowing a
prisoner to file many frivolous lawsuits while his third strike
dismissal was pending on appeal, id., is not implicated here,
14 RICHEY V. DAHNE
as the prisoner retains IFP status only for the appeal of his
third strike.
The facts of this case exemplify why § 1915(g) should be
construed as allowing appellate review of a third strike. As
explained in the jointly-filed memorandum disposition, the
district court erred in dismissing Richey’s complaint. If
Richey was not entitled to IFP status on appeal, he would
have to pay the filing fee for us to reverse the district court’s
erroneous third strike, which would ironically make him
eligible again for IFP status in successive suits. We do not
think that Congress intended such a peculiar system.
We hold that dismissal of the complaint in the action
underlying this appeal does not constitute a “prior occasion”
under the PLRA, and Richey had not accumulated a third
strike before he filed this appeal. Dahne’s motion to revoke
Richey’s IFP status on appeal is denied.