Washington v. Los Angeles County Sheriff's Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIAM NATHANIEL No. 13-56647
WASHINGTON,
Plaintiff-Appellant, D.C. No.
2:13-cv-04402-UA-PJW
v.

LOS ANGELES COUNTY OPINION
SHERIFF’S DEPARTMENT; LEE
BACA; TWIN TOWERS
CORRECTIONAL FACILITY,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding

Argued and Submitted April 4, 2016
Pasadena, California

Filed August 12, 2016

Before: JEROME FARRIS, CARLOS T. BEA,
and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

SUMMARY*

Prisoner Civil Rights

The panel reversed the district court’s denial of a
prisoner’s motion to proceed in form pauperis after the
district court found that the prisoners had accrued at least
three prior “strikes” under the Prison Litigation Reform Act’s
“three strikes rule.” 28 U.S.C. § 1915(g).

The panel held that the district court improperly assessed
the existence of five prior strikes against plaintiff and
therefore the panel remanded for the district court to assess
whether plaintiff was entitled to proceed with his action in
forma pauperis.

Assessing the prior federal filings, the panel held that a
dismissal pursuant to Heck v. Humphrey, 512 U.S. 477
(1994), may constitute a strike for failure to state a claim
when Heck’s bar to relief is obvious from the face of the
complaint, and the entirety of the complaint is dismissed for
a qualifying reason under the Prison Litigation Reform Act.
The panel held that when multiple claims are presented in a
single action, a strike may only be assessed when the case as
a whole is dismissed for a qualifying reason under the Prison
Litigation Reform Act. Applying this legal framework to the
facts of plaintiff’s prior filing, which intertwined the Heck-
barred damages claims with a habeas challenge to the
underlying sentence, the panel concluded that the dismissal

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 3

of plaintiff’s action pursuant to Heck did not constitute a
strike.

The panel held that a dismissal due to abstention under
Younger v. Harris, 401 U.S. 37 (1971), similar to a dismissal
under Rule 12(b)(1) for lack of subject-matter jurisdiction, is
not a strike.

The panel held that plaintiff’s two mandamus petitions,
which directly challenged the underlying criminal
proceedings, were more properly construed as appeals of
criminal cases, and therefore operated like habeas claims that
lie outside the scope of the Prison Litigation Reform Act, and
do not incur strikes.

COUNSEL

Joanna S. McCallum (argued), Manatt, Phelps & Phillips,
LLP, Los Angeles, California, for Plaintiff-Appellant.

Mackenzie C. Smith (argued) and Paul B. Beach, Lawrence
Beach Allen & Choi, PC, Glendale, California, for
Defendant-Appellee Los Angeles County Sheriff’s
Department.

No appearance for Defendants-Appellees Lee Baca and Twin
Towers Correctional Facility.
4 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

OPINION

M. SMITH, Circuit Judge:

This appeal addresses the application of the Prison
Litigation Reform Act of 1995’s (PLRA) “three-strikes” rule,
28 U.S.C. § 1915(g), to Plaintiff William Washington’s
action against the Los Angeles County Sheriff’s Department,
Lee Baca, and the Twin Towers Correctional Facility
(collectively, Defendants). The PLRA’s “three-strikes” rule
prohibits a prisoner from filing an action in forma pauperis
(IFP) if he has accumulated three “strikes” for prior federal-
court actions while incarcerated or in detention, unless he is
“under imminent danger of serious physical injury.” Id. A
prisoner can incur a “strike” for bringing an action “that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted.” Id.

Washington, a California state prisoner, requested leave
to file suit IFP against Defendants. The district court denied
Washington’s IFP request on the basis that he had accrued at
least three prior “strikes” under § 1915(g). The district court
also found that Washington’s complaint failed to adequately
plead “imminent danger of serious physical injury” within the
meaning of § 1915(g). Because we hold that the district court
improperly assessed the existence of prior strikes against
Washington, we REVERSE and REMAND.

FACTS AND PRIOR PROCEEDINGS

While in detention pending the outcome of a criminal
trial, Washington submitted a complaint, alleging violations
of his Eighth Amendment right to adequate medical care and
safe prison conditions, and requesting monetary and
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 5

injunctive relief pursuant to 42 U.S.C. § 1983. Along with the
submission of his complaint, Washington requested
permission to proceed IFP pursuant to 28 U.S.C. § 1915,
which would permit him to pay the $350 filing fee in gradual
installments rather than as an initial lump sum. See Andrews
v. Cervantes, 493 F.3d 1047, 1051–52 (9th Cir. 2007). The
district court found that Washington had accrued at least three
strikes under the PLRA, and that his complaint did not allege
“imminent danger of serious physical injury,” which would
permit him to bypass the PLRA’s three-strikes rule. See
28 U.S.C. § 1915(g). It denied the IFP request and dismissed
the action without prejudice.

Below we consider the history of Washington’s five prior
federal filings, which Defendants claim resulted in PLRA
strikes against Washington.1

1. Washington v. Haviland, No. 2:09-CV-3052

In November 2009, Washington filed a § 1983 complaint
in the U.S. District Court for the Eastern District of California
against prison wardens and various state officials. See
Washington v. Haviland, No. 2:09-CV-3052 (E.D. Cal. filed
Nov. 3, 2009). In the complaint, Washington claimed that the
defendants, in a separate state proceeding, had applied an
improper sentencing enhancement, causing him to remain in
prison for an additional year, in violation of his Fourteenth
Amendment rights. He requested compensation for his
injuries, including monetary damages for negligent infliction

1
Because we ultimately conclude that Washington has not accrued three
strikes, we decline to delve into the substance of his most recent complaint
to decide whether it adequately alleges an “imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g).
6 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

of emotional distress, actual loss of wages, and punitive
damages, as well as injunctive relief in the form of a “recall”
of his sentence. Washington simultaneously submitted an IFP
request.

A magistrate judge screened Washington’s complaint
pursuant to 28 U.S.C. § 1915A(a). The magistrate judge
concluded that Heck v. Humphrey, 512 U.S. 477 (1994),
required dismissal of Washington’s § 1983 claim because a
favorable ruling would cast into doubt the validity of his
underlying sentence. The magistrate judge then advised
Washington that a habeas petition was the “proper
mechanism” for challenging his sentence. On March 15,
2010, the district court adopted the magistrate judge’s
recommendations, denied Washington’s IFP application, and
dismissed the action “without prejudice for failure to state a
cognizable claim.”

2. Washington v. California Supreme Court, No. 2:10-
CV-54

In January 2010, after the California Supreme Court
denied Washington’s emergency ex parte motion for relief,
Washington brought an action challenging the validity of the
sentencing enhancement through a mandamus petition, this
time in the U.S. District Court for the Central District of
California. See Washington v. Cal. Supreme Court, No. 2:10-
CV-54 (C.D. Cal. filed Jan. 5, 2010). He also submitted an
IFP request with the complaint.

The U.S. District Court for the Central District of
California uses a standard template order for screening IFP
requests. Such a template was used in this case as well as in
subsequent cases Washington filed in that court. On the
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 7

template order, the magistrate judge recommended a denial
of the IFP request. Under the section listing “reason(s)” for
the denial, the magistrate judge did not indicate that the
pleading was “[f]rivolous, malicious, or fails to state a
claim,” or that the “denial may constitute a strike” under the
PLRA. Rather, the magistrate judge offered a separate
explanation in the comments section. Specifically, she
concluded that a mandamus petition was inappropriate when
other forms of relief, such as a habeas petition, were available
to challenge the sentencing decision. Accordingly, the
magistrate judge directed the clerk to “attach the appropriate
[habeas] form for petitioner to use.” The district court denied
the IFP request without further comment or qualification.

3. Washington v. California Supreme Court, No. 2:10-
CV-964

In February 2010, Washington submitted a near facsimile
of the earlier mandamus petition, accompanied by an IFP
request. See Washington v. Cal. Supreme Court, No. 2:10-
CV-964 (C.D. Cal. filed Feb. 19, 2010). A different
magistrate judge concluded that the complaint “remains an
inappropriate mandamus action,” and that Washington could
instead submit a habeas petition. The magistrate judge
checked off the boxes on the template order indicating that
the complaint was “[f]rivolous, malicious, or fails to state a
claim” and that “[t]his denial may constitute a strike.” The
district court denied Washington’s IFP request.

4. Washington v. Los Angeles Police Department, No.
2:12-CV-5873

Over two years later, in July 2012, Washington filed a
§ 1983 complaint in relation to ongoing state criminal
8 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

proceedings. See Washington v. L.A. Police Dep’t, No. 2:12-
CV-5873 (C.D. Cal. filed July 6, 2012). He again requested
IFP status. Washington alleged that the Los Angeles Police
Department as well as its officers and agents “committed
felony misconduct to falsely imprison [Washington] and to
potentially manipulate the verdict of a trial,” in violation of
the Fifth and Fourteenth Amendments. Specifically,
Washington claimed that the defendants had forged evidence
and falsified reports in a criminal investigation involving
Washington. He requested damages and various forms of
injunctive relief.

A magistrate judge recommended that the IFP request be
denied. The magistrate judge noted that it was “not clear
whether the underlying criminal case against [Washington] is
ongoing or whether he has already been convicted,” but, in
either case, Washington’s § 1983 claim “[could] not go
forward.” The magistrate judge reasoned that the claim was
either barred by Heck, because it challenged a criminal
conviction, or barred by Younger v. Harris, 401 U.S. 37
(1971), because the state criminal proceedings were ongoing.2
The magistrate judge also noted that a habeas petition was the
appropriate remedy for challenging the legality of his
confinement. Accordingly, the magistrate judge ticked off the
following boxes on the template order as reasons for the
denial of IFP status: (1) “District Court lacks jurisdiction;
(2) “Frivolous, malicious, or fails to state a claim”;
(3) “Leave to amend would be futile”; and (4) “Other.” Under
the “Other” section, the magistrate judge wrote: “Heck barred

2
The record reveals that the state criminal proceedings were then
ongoing, therefore triggering abstention under Younger. See infra Section
II.B.
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 9

and/or Younger abstention.” The district court denied
Washington’s IFP request, without leave to amend.

5. Washington v. City of Los Angeles, No. 2:12-CV-
7429

In August 2012, Washington filed another § 1983 lawsuit,
repeating similar facts from his July 2012 complaint, and
requested IFP status. See Washington v. City of Los Angeles,
No. 2:12-CV-7429 (C.D. Cal. filed Aug. 29, 2012). This time,
Washington modified the named defendants and the relief
sought, notably removing his previous request for immediate
release from custody and “thorough investigation of the
criminal case,” but requesting that a “forensic document
examiner be appointed to prove [the] authenticity of [the]
document in question.” Washington also removed his claim
of false imprisonment, but retained his allegations of due-
process violations arising from police misconduct.

The same magistrate judge that reviewed Washington’s
previous July 2012 IFP request reviewed this complaint. On
the template order, the magistrate judge recommended
denying the IFP request for the same reasons as the July 2012
IFP request, but additionally checked a box stating that the
denial “may constitute a strike.” The district court denied
Washington’s IFP request, without leave to amend.

STANDARD OF REVIEW AND JURISDICTION

“We review the district court’s interpretation and
application of § 1915(g)” de novo. Cervantes, 493 F.3d at
1052. We have jurisdiction under 28 U.S.C. § 1291. Andrews
v. King, 398 F.3d 1113, 1118 (9th Cir. 2005).
10 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

ANALYSIS

I. Prison Litigation Reform Act

The Prison Litigation Reform Act of 1995 (PLRA), Pub.
L. No. 104-134, tit. VIII, 110 Stat. 1321 (1996) (codified in
part at 28 U.S.C. § 1915) restricted the ability of prisoners to
avail themselves of IFP status when filing certain federal
lawsuits. Specifically, § 1915(g) contains the PLRA’s “three-
strikes” rule. This provision bars prisoners from proceeding
IFP if they have accrued “three strikes” under the statute:

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.

Although the legislative history of the PLRA is meager,
the Act’s supporters indicated that it was meant to curb the
volume of non-meritorious, and often frivolous, civil-rights
lawsuits brought challenging prison conditions. See
Cervantes, 493 F.3d at 1051–52. The PLRA also contains
other provisions designed to limit the number of such suits in
federal courts. For example, it contains an administrative-
exhaustion requirement to ensure that prisoners make use of
prison grievance procedures. 42 U.S.C. § 1997e(a). In
addition, the PLRA requires that courts screen prisoner
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 11

complaints and dismiss them sua sponte if they determine
then, or later in the proceedings, that the complaints are
“frivolous, malicious, or fail[] to state a claim.” 28 U.S.C.
§ 1915A.

II. PLRA “Strikes”

A. Heck Dismissals

Central to Washington’s argument is that a dismissal
under Heck does not constitute a strike within the meaning of
§ 1915(g). In Heck v. Humphrey, the Supreme Court held that
a court must dismiss a § 1983 claim if (1) it seeks to recover
damages for “harm caused by actions whose unlawfulness
would render a conviction or sentence invalid” and (2) the
plaintiff cannot show that “the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
a determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.” 512 U.S. at 486–87.
Accordingly, a civil damages claim that undermines a valid,
underlying conviction or sentence is “not cognizable under
§ 1983.” Id. at 487. The Court explained that, in such cases,
it was “deny[ing] the existence of a cause of action,” and that
“a § 1983 cause of action for damages attributable to an
unconstitutional conviction or sentence does not accrue until
the conviction or sentence has been invalidated.” Id. at
489–90.
12 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

Washington advances several arguments concerning why
Heck dismissals do not qualify as strikes.3 First, we address
the legal framework for determining when a Heck dismissal
constitutes a strike, including whether such dismissals may be
“frivolous, malicious, or fail[] to state a claim” under the
PLRA. 28 U.S.C. § 1915(g). Ultimately, we hold that a
dismissal may constitute a PLRA strike for failure to state a
claim when Heck’s bar to relief is obvious from the face of
the complaint, and the entirety of the complaint is dismissed
for a qualifying reason under the PLRA. Second, we apply
this legal framework to the facts of Washington’s case, and
conclude that the Heck dismissal in question, No. 2:09-CV-
3052, does not constitute a PLRA strike.

1. Dismissals of Frivolous or Malicious
Complaints

First, Washington contends that a complaint dismissed
under Heck, standing alone, is not a per se “frivolous” or
“malicious” complaint. We agree. A Heck dismissal is not
categorically frivolous—that is, having “no basis in law or
fact,” King, 398 F.3d at 1121 (internal quotation marks and

3
Contrary to Defendants’ contention, we have never squarely broached
the question of whether Heck dismissals count as strikes. See Cervantes,
493 F.3d at 1052 n.2. Rather, our prior cases are inconclusive because
they affirmed district-court dismissals without engaging in an analysis of
the propriety of imposing PLRA strikes for those dismissals. See
Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997) (affirming Heck
dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6)). Neither does Belanus v. Clark, 796 F.3d 1021 (9th Cir. 2015),
bind us on this issue. Belanus assessed a PLRA strike for a Rule 12(b)(6)
dismissal on the ground that the “thrust” of the complaint was barred by
the statute of limitations, such that a dismissal for failure to state a claim
could be sustained on that basis. Id. at 1024–25, 1027.
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 13

citation omitted)—because plaintiffs may have meritorious
claims that do not accrue until the underlying criminal
proceedings have been successfully challenged. See Heck,
512 U.S. at 489–90. For this reason, a Heck dismissal is made
without prejudice, such that a prisoner may refile the
complaint once his conviction has been overturned. See
Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.
1995) (per curiam). Similarly, a Heck dismissal cannot be
characterized as malicious, unless the court specifically finds
that the complaint was “filed with the intention or desire to
harm another.” King, 398 F.3d at 1121 (internal quotation
marks and citation omitted).

2. Dismissals for Failure To State a Claim

Neither do all Heck dismissals categorically count as
dismissals for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). We have previously determined that
the language “fails to state a claim upon which relief may be
granted” in § 1915(g), tracks the language of Rule 12(b)(6),
and that dismissals under Rule 12(b)(6) may constitute strikes
within the meaning of the PLRA. See Knapp v. Hogan,
738 F.3d 1106, 1109 (9th Cir. 2013). We now hold that Heck
dismissals may constitute Rule 12(b)(6) dismissals for failure
to state a claim when the pleadings present an “obvious bar
to securing relief” under Heck. ASARCO, LLC v. Union Pac.
R.R., 765 F.3d 999, 1004 (9th Cir. 2014).

We do not hold, however, that a successful challenge to
the underlying criminal proceedings, i.e., “favorable
termination,” is a necessary element of a civil damages claim
14 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

under § 1983.4 Section 1983 merely requires that a litigant
allege a “deprivation of any rights, privileges, or immunities
secured by the Constitution and laws,” and that the
challenged conduct transpire “under color of [state law].”
42 U.S.C. § 1983. The fact that a conviction has been set
aside is not an element of the claim at issue. Indeed, a
particular plaintiff’s need to demonstrate that his conviction
has been set aside is contingent on a threshold legal
determination, made by the court, that the requested relief
would undermine the underlying conviction. Cf. Lockett v.
Ericson, 656 F.3d 892, 896–97 (9th Cir. 2011).

Instead, compliance with Heck most closely resembles the
mandatory administrative exhaustion of PLRA claims, which
constitutes an affirmative defense and not a pleading
requirement.5 See Jones v. Bock, 549 U.S. 199, 215–17
(2007). Like dismissals for lack of administrative exhaustion,
Heck dismissals do not reflect a final determination on the
underlying merits of the case. See Lopez v. Smith, 203 F.3d

4
The two circuit courts to consider this issue directly have both held that
Heck dismissals may constitute a strike for “failure to state a claim,”
although their reasoning on this score is overbroad. See Smith v. Veterans
Admin., 636 F.3d 1306, 1312 (10th Cir. 2011) (holding that “the favorable
termination of a habeas case is an essential element of a prisoner’s civil
claim for damages brought under 42 U.S.C. § 1983 that necessarily
implies the invalidity of the prisoner’s conviction”); In re Jones, 652 F.3d
36, 37 (D.C. Cir. 2011) (per curiam) (adopting the reasoning in Smith); see
also Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (holding, with
scant analysis, that Heck dismissals are categorically “frivolous”).
5
Consistent with the burden of proof for an affirmative defense, we have
held that the defendant in a § 1983 action must show that the plaintiff’s
success in the action would necessarily imply the invalidity of a criminal
conviction. See Smith v. City of Hemet, 394 F.3d 689, 699 n.5 (9th Cir.
2005) (en banc); Sanford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001).
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 15

1122, 1129 (9th Cir. 2000) (en banc). Rather, Heck dismissals
reflect a matter of “judicial traffic control” and prevent civil
actions from collaterally attacking existing criminal
judgments. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir.
2014) (en banc) (internal quotation marks and citation
omitted); see Heck, 512 U.S. at 483–87. Therefore, as with
affirmative defenses, a court may properly dismiss a Heck-
barred claim under Rule 12(b)(6) if there exists an “obvious
bar to securing relief on the face of the complaint.” ASARCO,
LLC, 765 F.3d at 1004; see Jones, 549 U.S. at 215. With
respect to No. 2:09-CV-3052, the Heck deficiency was plain
from the face of the complaint, as Washington sought a
“recall” of his allegedly unlawful sentence, thereby revealing
that it was still extant.

3. Full and Partial Dismissals under Heck

In light of the above analysis of Heck, we must next
decide whether the dismissal in No. 2:09-CV-3052 triggered
a PLRA strike. Before proceeding, however, we clarify that
so-called Heck dismissals come in various guises. This is an
important distinction because only a complete dismissal of an
action under Heck—rather than the dismissal of a particular
claim within that action—constitutes a strike. See Cervantes,
493 F.3d at 1054.

Broadly speaking, there are two kinds of cases in which
Heck is implicated. The first type was presented in Heck
itself, where a prisoner filed a civil suit seeking purely money
damages related to an allegedly unlawful conviction.
512 U.S. at 479. Heck barred the suit because an award of
damages would undermine the validity of the underlying
conviction, and the entire action therefore faced dismissal
under Heck. Id. at 486–87.
16 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

Another type is the one we have before us, in which a
prisoner seeks injunctive relief challenging his sentence or
conviction—and further seeks monetary relief for damages
attributable to the same sentence or conviction. The first
request, for injunctive relief, sounds in habeas, and is not
subject to the PLRA’s regime. King, 398 F.3d at 1122–23.
The second request, seeking damages, is intertwined with
Washington’s plea for injunctive relief, and is therefore
subject to dismissal under Heck.

When we are presented with multiple claims within a
single action, we assess a PLRA strike only when the “case
as a whole” is dismissed for a qualifying reason under the
Act. Cervantes, 493 F.3d at 1054. Although one portion of
Washington’s action might have been dismissed for failure to
comply with Heck, the remainder sounds only in habeas. A
habeas action, as we have held, is not a “civil action” within
the purview of the PLRA because it operates to challenge the
validity of a criminal proceeding, and its dismissal does not
trigger a strike. King, 398 F.3d at 1122–23; see also El-
Shaddai v. Zamora, No. 13-56104, slip op. at 17–18 (9th Cir.
Aug. 12, 2016) (holding that would-be habeas petitions do
not count as strikes). As a result, Washington has not accrued
a strike for the dismissal of his first suit, No. 2:09-CV-3052,
because the entire action was not dismissed for one of the
qualifying reasons enumerated by the Act.6

6
We emphasize that our holding is limited to the question now before
us, i.e., whether such dismissals constitute strikes within the meaning of
the PLRA, and does not alter our existing law governing a court’s
determination of when to “convert a defective section 1983 claim into a
habeas petition.” Trimble, 49 F.3d at 586; see Tucker v. Carlson, 925 F.2d
330, 332 (9th Cir. 1991); see also Castro v. United States, 540 U.S. 375,
382–83 (2003).
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 17

Considered from another angle, the Heck-dismissed
claims were part and parcel of Washington’s legal challenge
to his criminal sentence. Washington sought relief from the
fact or duration of his confinement, specifically a “recall of
his sentence,” and related monetary damages. This prompted
the district court to advise him that habeas proceedings were
“the proper mechanism” for challenges to his sentence. Until
Washington has proven the invalidity of that sentence, he is
barred from obtaining damages arising from it. Heck,
512 U.S. at 486–87. Because Washington’s Heck-barred
damages claims are thus intertwined with his habeas
challenge to the underlying sentence, we decline to impose a
strike with respect to his entire action. This approach squares
with the underlying purposes of the PLRA, where Congress
was preoccupied with the proliferation of civil-rights suits
challenging prison conditions—not criminal convictions. See
King, 398 F.3d at 1122–23.

B. Younger Abstention

Federal district courts twice dismissed Washington’s
complaints under Heck “and/or” Younger, Nos. 2:12-CV-
5873 and 2:12-CV-7429, finding that they “lack[ed]
jurisdiction.” Washington argues that a Younger dismissal
should be treated like a Rule 12(b)(1) dismissal for lack of
subject-matter jurisdiction, which does not trigger a PLRA
strike. See Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d
890, 893 (9th Cir. 2011). We agree with Washington.7

7
Similarly, Washington contends that a Heck dismissal is properly
considered jurisdictional in nature, and should therefore not trigger a
strike. Because we conclude that Washington’s partial dismissal under
Heck did not warrant a PLRA strike, we decline to reach this alternative
argument.
18 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

Under Younger v. Harris, a federal court must apply a
multi-part test to determine whether it should decline to
exercise its jurisdiction. See 401 U.S. at 41. “Younger
principles apply in an action for damages pursuant to
42 U.S.C. § 1983 in which the federal plaintiff brings a
constitutional challenge to a state proceeding when that
proceeding is ongoing; the state proceeding is of a judicial
nature, implicating important state interests; and the federal
plaintiff is not barred from litigating his federal constitutional
issues in that proceeding.” Gilbertson v. Albright, 381 F.3d
965, 984 (9th Cir. 2004). Although the courts below never
resolved whether dismissal was appropriate under Heck or
Younger, the record reveals that the dismissals should have
occurred under Younger, as both dismissed suits were brought
prior to Washington’s August 2013 state-court conviction.
See Wallace v. Kato, 549 U.S. 384, 393 (2007).

We hold that a dismissal due to Younger abstention,
similar to a dismissal under Rule 12(b)(1) for lack of subject-
matter jurisdiction, is not a strike under the PLRA. The
doctrine of abstention involves a decision by a federal court
to decline to exercise jurisdiction over the underlying claims
for reasons of comity. Gilbertson, 381 F.3d at 970–71; see
Albino, 747 F.3d at 1170. Dismissal on jurisdictional grounds
occurs not only before an examination of the merits, but
curtails such an examination. See Moore, 657 F.3d at 895.
“Unlike those situations where a federal court merely abstains
from decision on federal questions until the resolution of
underlying or related state law issues . . . Younger v. Harris
contemplates the outright dismissal of the federal suit, and the
presentation of all claims, both state and federal, to the state
courts.” Gibson v. Berryhill, 411 U.S. 564, 577 (1973).
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 19

As a result, Washington’s two prior dismissals under
Younger, Nos. 2:12-CV-5873 and 2:12-CV-7429, do not
constitute strikes. Moreover, to the extent Washington
requested relief in those actions that sounded distinctly in
habeas, while his remaining claims were barred by Younger,
such mixed dismissals do not constitute strikes unless the
entire action is dismissed for a qualifying reason under the
PLRA. See supra Section II.A.3. Here, neither the dismissal
of Washington’s claims under Younger, nor those sounding
in habeas, present qualifying reasons for imposing a strike
within the meaning of § 1915(g).

C. Petitions for a Writ of Mandamus

In enacting the PLRA, Congress intended to limit a
prisoner’s ability to proceed IFP in “a civil action” or the
“appeal [of] a judgment in a civil action or proceeding.”
28 U.S.C. § 1915(g). We have already held that the PLRA
does not extend to a prisoner’s use of habeas corpus petitions.
King, 398 F.3d at 1122. Like habeas, mandamus is a
common-law writ that cannot be squarely characterized as a
“civil action” or appeal thereof within the meaning of the
PLRA.

Most of the circuits to have considered this issue have
adopted an approach similar to that of the Seventh Circuit in
Martin v. United States, 96 F.3d 853, 854–55 (7th Cir. 1996).
In Martin, the Seventh Circuit concluded that, in many cases,
a mandamus petition “against the judge presiding in the
petitioner’s case,” effectively operates as a form of appeal. Id.
at 854. Whether the “appeal” is civil in nature will depend on
whether the underlying litigation is civil, and seeks “relief
sought in civil actions that are covered by the PLRA.” In re
Nagy, 89 F.3d 115, 117 n.1 (2d Cir. 1996); see Martin,
20 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

96 F.3d at 854–55 (“A petition for mandamus in a criminal
proceeding is not a form of prisoner litigation. . . . It is a
procedural step in the criminal litigation, like an interlocutory
or final appeal or a civil contempt proceeding against a
witness.”); In re Grant, 635 F.3d 1227, 1230 (D.C. Cir. 2011)
(applying PLRA to mandamus petitions when the underlying
action is civil); In re Stone, 118 F.3d 1032, 1033–34 (5th Cir.
1997) (same); In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997)
(same); cf. Madden v. Myers, 102 F.3d 74, 76–77 (3d Cir.
1996) (holding that mandamus actions are categorically not
“civil actions”). But see Green v. Nottingham, 90 F.3d 415,
417–18 (10th Cir. 1996).

In Washington’s case, his two mandamus petitions, Nos.
2:10-CV-54 and 2:10-CV-964, directly challenged underlying
criminal proceedings, and are more properly construed as
appeals of criminal cases. We are persuaded by the reasoning
of the Seventh Circuit in Martin, and we therefore conclude
that Washington’s two mandamus petitions operated like
habeas claims challenging a criminal conviction and lie
outside the scope of the PLRA.

III. Application to Washington’s Prior Filings

Finally, Washington raises several global procedural
challenges concerning the district court’s reliance on
screening orders in assessing PLRA strikes. In light of prior
courts’ use of the screening form template, see infra n.8, we
acknowledge that overreliance on prior classifications can be
particularly problematic. See King, 398 F.3d at 1121; Snider
v. Melindez, 199 F.3d 108, 115 n.4 (2d Cir. 1999). However,
we set his procedural challenges aside for a future day
because, under our analysis, Washington has not sustained
any strikes under the PLRA.
 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 21

Washington’s preliminary dismissal, No. 2:09-CV-3052,
was a mixed Heck/habeas dismissal, which we concluded
does not qualify as a strike. See supra Section II.A. The next
two dismissals, Nos. 2:10-CV-54 and 2:10-CV-964, relate to
mandamus petitions challenging criminal proceedings, which
are not “civil actions” within the purview of the PLRA and,
like habeas petitions, do not incur strikes. See supra Section
II.C.

Nonetheless, Defendants contend that Washington’s
second mandamus petition was dismissed for frivolousness or
maliciousness because it was nearly identical to his first.8 We
decline to assess a strike, however, because Washington’s
action took the form of a mandamus petition “appealing” a
criminal case. See id. The most logical manner of reading
§ 1915(g) is to impose a symmetry in the statutory language,
where Congress was concerned with regulating “civil
actions,” so that qualifying strikes accrue only from the same.
Cf. Martin, 96 F.3d at 854 (reasoning that “in context it is
apparent that the word ‘appeal’ [in 28 U.S.C. § 1915(b)(1)]
means the appeal in a civil action.”); King, 398 F.3d at 1122
(holding that “dismissed habeas petitions do not count as
strikes”). Because Washington’s second mandamus petition
was not a “civil action,” it falls outside the scope of the
PLRA, and we do not consider its dismissal a qualifying
strike.

8
The screening order used in these dismissals is of limited assistance
because it does not require that a court enumerate the specific PLRA
ground upon which the dismissal is based. Neither did the district court
below isolate the grounds for dismissal, or make explicit findings of
frivolity or maliciousness. See Knapp, 738 F.3d at 1109–10 (“It is best
practice for a district court to expressly indicate when a dismissal falls into
one of the three categories.”).
22 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

The final pair of dismissals, Nos. 2:12-CV-5873 and 2:12-
CV-7429, were made pursuant to Younger, which operates as
a jurisdictional bar to § 1983 relief, and does not result in a
strike for failure to state a claim. See supra Section II.B.
Moreover, because a court declines to exercise its jurisdiction
under Younger abstention, it typically cannot make a
substantive finding of frivolousness or maliciousness. See
Moore, 657 F.3d at 893 (“[T]here is nothing necessarily
frivolous or malicious in bringing an action for which the
court lacks jurisdiction.” (internal quotation marks and
citation omitted)). Even so, Washington’s second Younger-
barred complaint, No. 2:12-CV-7429, was not frivolous or
malicious by virtue of being repetitive, as Defendants
contend. Rather, it reflects a pro se litigant’s inartful attempt
to amend the first pleading, No. 2:12-CV-5873, by revising
his requested relief and causes of action to avoid the Younger
bar. Neither the initial reviewing court, nor the subsequent
court, made specific findings of frivolousness or
maliciousness, and we decline to do so now. As a result, we
conclude that Washington has not accrued any PLRA strikes
for his prior dismissals.

CONCLUSION

We hold that the district court improperly assessed the
existence of prior strikes against Washington. Accordingly,
we REVERSE and REMAND for the district court to assess
whether Washington is otherwise entitled to proceed with his
action in forma pauperis.