FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD TERRAN FURNACE, No. 13-17620
Plaintiff-Appellant,
D.C. No.
v. 5:12-cv-00873-LHK
G. GIURBINO; K. BERKLER; R. S.
MARQUEZ; E. W. FISCHER; M. OPINION
VALDEZ, Institutional Gang
Investigator at Salinas Valley
State Prison; R. L. MARTINEZ,
Lt., Institutional Gang
Investigator at Salinas Valley
State Prison,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted December 9, 2015
San Francisco, California
Filed September 29, 2016
Before: Alex Kozinski, Jay S. Bybee,
and Morgan Christen, Circuit Judges.
Opinion by Judge Bybee
2 FURNACE V. GIURBINO
SUMMARY*
Prisoner Civil Rights
The panel affirmed the district court’s dismissal, on
preclusion grounds, of a California state prisoner’s 42 U.S.C.
§ 1983 action, alleging that prison officials wrongfully
classified him as a gang member in retaliation for filing a
previous § 1983 suit against the defendants’ colleagues.
Prior to filing this § 1983 suit, the prisoner filed a habeas
petition in California state court, alleging that his gang
classification and placement in secured housing violated his
federal constitutional rights, which was denied.
The panel held that California claim preclusion law
governed whether, in light of his earlier state habeas petition,
the prisoner’s § 1983 claims could be brought in federal
court. The panel rejected the prisoner’s claim that the
“primary rights” that were allegedly violated in his § 1983
suit were distinct from the primary right he sought to
vindicate in his habeas action in California state court. The
panel concluded that the same primary right – the prisoner’s
right to be free from unlawful gang validation and placement
in the segregated housing unit – was at issue in both suits.
The panel also rejected the prisoner’s argument that the
identity of the parties was different between this § 1983
action and his prior habeas action.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FURNACE V. GIURBINO 3
The panel declined the prison officials’ request to assess
a strike, based on the district court’s dismissal of this case,
against the prisoner under the Prison Litigation Reform Act,
28 U.S.C. § 1915(g).
COUNSEL
Rajeev Muttreja (argued), Jones Day New York, New York;
Glen Nager, Jones Day, Washington, D.C.; for Plaintiff-
Appellant.
Jose A. Zelidon-Zepeda (argued), Deputy Attorney General;
Thomas S. Patterson, Supervising Deputy Attorney General;
Jonathan L. Wolff, Senior Assistant Attorney General;
Kamala D. Harris, Attorney General; Office of the Attorney
General, San Francisco, California; for Defendant-Appellee.
OPINION
BYBEE, Circuit Judge:
Edward Furnace is a prisoner at Salinas Valley State
Prison. Furnace alleges the Appellees wrongfully classified
him as a gang member in retaliation for filing a § 1983 suit
against the defendants’ colleagues. After Furnace filed a
habeas petition, California courts rejected his claims on the
ground that there was sufficient evidence to support the gang
validation. Furnace then filed the present action under
42 U.S.C. § 1983 for violation of his Fourteenth Amendment
rights, based on violation of the First Amendment and the
Equal Protection Clause. The district court dismissed his suit
on claim preclusion grounds. We affirm.
4 FURNACE V. GIURBINO
I. FACTS AND PROCEEDINGS BELOW
In 2006 Furnace filed a § 1983 suit against eleven Salinas
Valley Prison officials (none of whom is involved in this suit)
for allegedly denying him visitation rights and other
privileges. These defendants filed a motion to dismiss in
2008, which was denied. Furnace alleges that shortly after
that, R.L. Martinez and M. Valdez, gang investigators at
Salinas Valley, were “ordered to validate [Furnace] as a
prison gang member to intimidate and retaliate against him”
for filing the earlier suit. The decision to classify Furnace as
a member of the Black Guerilla Family (BGF) was based on
prison officials finding in Furnace’s cell the contact
information of a validated BGF gang member as well as
books, a CD, and a newspaper article relating to BGF.
Furnace filed an internal administrative appeal, claiming
that the classification lacked evidence, was retaliatory, and
was racially motivated. While the appeal was pending, K.
Berkler, R.S. Marquez, and E.W. Fischer, also gang experts
at Salinas Valley, again classified Furnace as a gang member.
His internal administrative appeals were denied, and he was
placed in the prison’s secured housing unit (SHU).
Furnace then filed a pro se habeas petition in California
Superior Court. He named D. Adams (the prison warden),
R.L. Martinez, Valdez, Berkler, R.S. Marquez, and Fischer as
respondents (and others not involved in this appeal). He
alleged that his gang classification and placement in secured
housing lacked sufficient evidence, that it was done to
“intimidate and retaliate against” Furnace for filing the earlier
suit, and that it violated his federal constitutional rights to
free speech, equal protection of the law, and due process.
Furnace sought to be removed from secured housing and to
FURNACE V. GIURBINO 5
have his record cleared of any allegation that he was gang
affiliated.
The Superior Court denied Furnace’s petition on the
ground that there was sufficient evidence to support the gang
validation, without directly addressing whether the
classification was retaliatory or racially discriminatory.
Furnace filed another habeas petition in the California Court
of Appeal, making the same allegations. The court denied his
petition, holding, first, that there was sufficient evidence to
support the validation and, second, that the validation did not
violate his First Amendment rights. The court denied
rehearing, and the California Supreme Court summarily
denied review.
In February 2012, Furnace filed this § 1983 suit in federal
district court. Furnace named as defendants Berkler,
Marquez, Fischer, R.L. Martinez, and Valdez, plus G.
Giurbino (collectively, “Appellees”), who allegedly
supervised the other Appellees. Furnace’s complaint alleged
that his classification was illegal and retaliatory in violation
of his First Amendment rights, and a violation of his right to
equal protection and due process under the Fourteenth
Amendment. Furnace asked for declaratory relief, money
damages, as well as injunctive relief “to release him from the
security housing unit” and to “expunge his prison file” of any
allegation that he is associated with BGF.
The district court granted the Appellees’ motion to
dismiss on the ground that Furnace’s suit was barred by claim
preclusion. The court concluded that “both the state action
and the instant one arise out of the same incident and involve
the same actors allegedly performing the same act of
initiating gang validation procedures and ultimately
6 FURNACE V. GIURBINO
validating [Furnace] as an active gang member without
proper procedural protections.” Because Furnace sought “to
vindicate the same primary right in federal court as he [had]
previously in state court,” his claim was precluded. Furnace
timely appealed. On appeal, Appellees ask us to assess a
strike against Furnace under the Prison Litigation Reform Act
for having filed a duplicative suit.1
II. ANALYSIS
This appeal raises two main issues. First, Furnace
contends that the district court erred in dismissing his First
Amendment and equal protection claims under California
claim preclusion principles. Second, the Appellees ask us to
assess a “strike” against Furnace under the Prison Litigation
Reform Act. We affirm the district court and decline to
assess a strike against Furnace.
A. Claim Preclusion
Under the Full Faith and Credit Statute, 28 U.S.C. § 1738,
federal courts must give the same preclusive effect to state
court judgments, including “reasoned” habeas judgments, as
the rendering state court would. Gonzales v. Cal. Dep’t of
Corr., 739 F.3d 1226, 1230–31 (9th Cir. 2014) (citing Migra
v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81
(1984)). Accordingly, California claim preclusion law
1
We review de novo a dismissal on res judicata grounds,
Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022,
1025 (9th Cir. 2005), as well as the district court’s interpretation of the
Prison Litigation Reform Act, Andrews v. King, 398 F.3d 1113, 1118 (9th
Cir. 2005).
FURNACE V. GIURBINO 7
governs whether, in light of his earlier state habeas petition,
Furnace’s § 1983 claims may be brought in federal court.
In California, “[c]laim preclusion arises if a second suit
involves: (1) the same cause of action (2) between the same
parties [or parties in privity with them] (3) after a final
judgment on the merits in the first suit.” DKN Holdings LLC
v. Faerber, 352 P.3d 378, 386 (Cal. 2015) (citing Mycogen
Corp. v. Monsanto Co., 51 P.3d 297, 301 (Cal. 2002)).
Furnace makes two arguments in response to the Defendants’
claim preclusion defense. First, he argues that the “primary
rights” that were violated here are distinct from the primary
right he sought to vindicate in his habeas action in California
state courts. Second, he argues that the identity of the parties
is different between the two suits. We address each argument
in turn.
1. Primary Rights
California courts, unlike federal courts, do not determine
whether two suits involve the same cause of action by
applying the “same transaction or occurrence” or “common
nucleus of operative facts” test. Instead, California courts
will hold that two suits involve the same cause of action when
they involve the same “primary right.” Brodheim v. Cry,
584 F.3d 1262, 1268 (9th Cir. 2009). Under this theory “a
‘cause of action’ is comprised of a ‘primary right’ of the
plaintiff, a corresponding ‘primary duty’ of the defendant,
and a wrongful act by the defendant constituting a breach of
that duty.” Mycogen, 51 P.3d at 306. “The most salient
characteristic of a primary right is that it is indivisible: the
violation of a single primary right gives rise to but a single
cause of action.” Id. Thus, in California, “if two actions
involve the same injury to the plaintiff and the same wrong
8 FURNACE V. GIURBINO
by the defendant then the same primary right is at stake even
if in the second suit the plaintiff pleads different theories of
recovery, seeks different forms of relief and/or adds new facts
supporting recovery.” San Diego Police Officers’ Ass’n v.
San Diego City Emps. Ret. Sys., 568 F.3d 725, 734 (9th Cir.
2009) (quoting Eichman v. Fotomat Corp., 197 Cal. Rptr.
612, 614 (Ct. App. 1983)). “The critical focus of primary
rights analysis is the harm suffered.” Brodheim, 584 F.3d at
1268 (citations and internal quotation marks omitted).
California’s primary rights theory can be complicated, and we
have cautioned against wielding the “primary right brush . . .
too carelessly” and noted the possibility that “different
primary rights may be violated by the same wrongful
conduct” under certain circumstances. San Diego Police
Officers’ Ass’n, 568 F.3d at 734 (internal quotation marks
omitted). But in this case, we have circuit precedent on point
that requires us to affirm.
The facts of Gonzales v. California Department of
Corrections will sound familiar. There, Gonzales was
validated as a gang member and placed in the SHU. 739 F.3d
at 1229. After exhausting his administrative remedies, and a
series of state habeas proceedings, he filed a § 1983 suit
alleging that “(1) the gang validation violated his rights to
free speech and association under the First Amendment;
(2) the validation regulations were applied in a racially
discriminatory manner; (3) he was classified as a gang
member as retaliation . . . ; [and] (4) his validation . . .
violated his due process rights.” Id. The district court
dismissed the suit on claim preclusion grounds. Id. at 1230.
On appeal, Gonzales argued “that his retaliation, First
Amendment, and Equal Protection claims [were] not
precluded,” because those claims arose under “a distinct
FURNACE V. GIURBINO 9
primary right,” from his earlier due process claim. Id. at
1233 (internal quotation marks omitted). Specifically, he
argued that his earlier inadequate evidence/due process claim
was “procedural” while his First Amendment and Equal
Protection Clause arguments were “inherently substantive,”
and he pointed to our decision in Brodheim as having
recognized a procedural/substantive divide. Id. We noted
that in Brodheim, the two harms—one substantive, one
procedural—were distinct because “[t]hey were caused at
different times, by different acts, and by different actors.” Id.
(quoting Brodheim, 584 F.3d at 1268–69). By contrast,
Gonzales was “challenging the same actions by the same
group of officials at the same time that resulted in the same
harm.” Id. at 1234. Accordingly, the procedural/substantive
distinction for identifying a distinct primary right was of no
use, because whether a party alleges “a different remedy or
asserts a different legal theory . . . is irrelevant under
California claim preclusion doctrine.” Id. Since Gonzales’s
claims would be barred in California’s courts under
California’s claim preclusion doctrine, they were barred in
federal courts under the Full Faith and Credit statute. Id. at
1230.
Gonzales requires that we affirm. Furnace challenges
“the same actions by the same group of officials at the same
time that resulted in the same harm.” Id. at 1234. In his state
court action, Furnace raised a due process claim, challenging
the evidentiary basis of his gang validation and SHU
placement. He also claimed that the validation and SHU
placement were retaliatory, racially motivated, and violated
his First Amendment rights. And, like the plaintiff in
Gonzales, Furnace attempts to argue that the primary right he
sought to vindicate in the state proceedings is somehow
distinct from the rights he now seeks to vindicate. But, as the
10 FURNACE V. GIURBINO
California Supreme Court has made clear, a plaintiff’s
primary right is the “right to be free from the particular injury
suffered” and “must therefore be distinguished from the legal
theory on which liability for that injury is premised.”
Mycogen, 51 P.3d at 306–07. At heart, Furnace has always
complained about the same alleged injury: his gang validation
and SHU placement. He has come up with numerous legal
theories as to why it was unlawful—lack of evidence,
retaliation, and racial discrimination—but it does not change
the primary right he seeks to vindicate, and Gonzales makes
that point clear. See Gonzales, 739 F.3d at 1233 (the
plaintiff’s “primary right was his protected liberty interest in
remaining free from SHU placement” and the “harm
suffered” was his “gang validation and indeterminate SHU
detention”).2
Furnace raises two principal arguments in an effort to get
around our holding in Gonzales. First, he argues that a claim
challenging the sufficiency of the gang evidence is
qualitatively different from a claim that the gang
classification was the result of retaliation for the exercise of
2
Furnace claims that in Gonzales we said that the parties’ “dispute
[was] in defining the primary duty,” Gonzales, 739 F.3d at 1233, and that
he is disputing his primary right, not the Appellees’ duty. This argument
is unavailing. Rights and duties are correlative—they do not exist
independent of each other. The possession of a right necessarily implies
the existence of a duty; conversely, to say that a party has a duty means
that someone is possessed of a right. As California has explained, “a
‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a
corresponding ‘primary duty’ of the defendant, and a wrongful act by the
defendant constituting a breach of that duty.” Mycogen, 51 P.3d at 306
(emphasis added)). Here, as in Gonzales, Furnace’s primary right is the
right not to be unlawfully determined to be a gang member and placed in
the SHU; and it “correspond[s]” to the Appellees’ duty not to unlawfully
label an inmate a gang member and place him in the SHU.
FURNACE V. GIURBINO 11
First Amendment rights or was racially motivated in violation
of the Equal Protection Clause. Second, he argues that he
may maintain this suit for damages because he could not have
obtained damages in his prior habeas action. Furnace’s points
are technically correct; but, in the context of California’s
primary rights doctrine, both are irrelevant.
First, we recognize that Furnace’s sufficiency-of-the-
evidence claim, which he raised in his state habeas
proceedings, and his retaliation and racial discrimination
claims, which he raises here, are distinct claims. But they are
both part and parcel of the same primary right—Furnace’s
right not to be wrongfully placed in the SHU. They are
alternative arguments for accomplishing the same result—his
release from the SHU. The primary rights doctrine under
California claim preclusion forecloses Furnace’s ability to file
separate suits challenging the same wrong.
Second, it is also true, but again irrelevant, that Furnace
could not have obtained damages through habeas. Habeas, by
its very nature, is an action to challenge “the fact or length of
custody” for which the remedy is release from custody, Wolff
v. McDonnell, 418 U.S. 539, 554 (1974); it is not an action in
damages, Preiser v. Rodriguez, 411 U.S. 475, 494 (1973).
We know of no reason, however, that Furnace could not have
brought his § 1983 action instead of his state habeas action,
see Shoemaker v. Harris, 155 Cal. Rptr. 3d 76, 84 (Ct. App.
2013), or, even better, joined his habeas and § 1983 actions
to seek alternative forms of relief,3 Cal. Penal Code
3
We offer no definitive opinion whether, under California law,
Furnace could, in fact, have brought both an action in habeas and a § 1983
law in the same suit, nor do we offer any opinion whether Furnace could
12 FURNACE V. GIURBINO
§ 1473(d) (“[The state habeas statute] shall not be construed
. . . as precluding the use of any other remedies.”). And
therein lies the problem. Having lost his habeas case,
Furnace has made a new run at the officials through § 1983.
The U.S. Supreme Court has held, and the California courts
have agreed, that § 1983 suits cannot be used to collaterally
attack the validity of a conviction. Thus, “the . . . principle
that civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments
applies to § 1983 damages actions that necessarily require the
plaintiff to prove the unlawfulness of his conviction or
confinement.” Heck v. Humphrey, 512 U.S. 477, 486 (1994);
see also Susag v. City of Lake Forest, 115 Cal. Rptr. 2d 269,
273 (Ct. App. 2002) (“[The] requirement [that a plaintiff can
pursue relief under § 1983 only after obtaining habeas relief]
avoids a collateral attack on the conviction and relitigation of
issues of probable cause and guilt, and protects the strong
judicial policy against inconsistent resolutions.”). The Heck
principle means that “a § 1983 plaintiff must prove 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 determination, or called into
question by a federal court’s issuance of a writ of habeas
corpus.” Heck, 512 U.S. at 486–87.
Heck is not directly on point here, but the principle will
help us focus in this case. Heck prohibits the use of § 1983
to attack the validity of a conviction, because a recovery in
the damages action would necessarily imply that the
conviction was wrongfully obtained. The judgment of
conviction and the judgment for damages would be
have decided to forego his habeas action and bring only a § 1983 suit.
What we hold is that he cannot bring them seriatim.
FURNACE V. GIURBINO 13
inconsistent, and there would be no means to reconcile the
two. Like the Heck principle, one reason for California’s
primary right doctrine is to avoid piecemeal litigation and the
possibility of inconsistent judgments. See, e.g., People v.
Barragan, 83 P.3d 480, 494 (Cal. 2004) (“[T]he purposes of
the res judicata doctrine include preventing inconsistent
judgments which undermine the integrity of the judicial
system . . . .” (internal quotation marks and alterations
omitted)). Furnace has already challenged his placement in
the SHU in habeas and lost; he cannot now challenge his
placement through § 1983 without collaterally attacking—and
thereby rendering inconsistent—the judgment denying him
habeas relief. If he were successful on his § 1983 claim
against the officials who put him in the SHU, it would
necessarily be inconsistent with the judgment that he was not
entitled to habeas relief.
For example, were he to prevail here, Furnace would be
entitled to damages for the time he has been wrongfully
placed in the SHU and, in fact, he might be entitled to
damages on a continuing basis if he were left in the SHU.
The Appellees would be in the untenable position that
California courts have said he is lawfully housed in the SHU,
while the federal courts would have concluded that he is
unlawfully housed in the SHU. Following the California
judgment, the warden might have a duty by virtue of his
office to keep him in the SHU, while after the federal
judgment, the warden (and others) would be personally liable
for damages if they keep him there. The two judgments
would be irreconcilable. It is of no consequence that § 1983
is a different remedy from habeas; both are means of
challenging the lawfulness of his placement. The primary
rights doctrine prevents such inconsistent judgments by
requiring a party to bring all of his claims—as many causes
14 FURNACE V. GIURBINO
of action, or theories of recovery, or remedies as he has—in
a single suit. See Mycogen, 51 P.3d at 302 (“Res judicata
precludes piecemeal litigation by splitting a single cause of
action or relitigation of the same cause of action on a
different legal theory or for different relief.” (emphasis
added) (internal quotation marks omitted)); id. at 307 (“The
primary right must also be distinguished from the remedy
sought: The violation of one primary right constitutes a single
cause of action, though it may entitle the injured party to
many forms of relief, and the relief is not to be confounded
with the cause of action, one not being determinative of the
other.” (second emphasis added) (internal quotation marks
omitted)); Eichman, 197 Cal. Rptr. at 614 (“[I]f two actions
involve the same injury to the plaintiff and the same wrong
by the defendant then the same primary right is at stake even
if in the second suit the plaintiff . . . seeks different forms of
relief . . . .” (emphasis added)). The district court correctly
held that in these circumstances, Furnace’s “retaliation, First
Amendment, and Equal Protection claims” involved the same
“primary right” at issue in the Furnace’s earlier state habeas
proceeding. Gonzales, 739 F.3d at 1233–34.4
4
We recognize that some California appellate cases lend support to
Furnace’s claim that the ability to be free from retaliation and/or
discrimination might be a distinct primary right from the substantive
outcome of an adverse administrative decision, see Agarwal v. Johnson,
603 P.2d 58, 72 (Cal. 1979) (holding that Title VII claim was distinct
primary right from defamation and intentional infliction of emotional
distress claims under state law); Henderson v. Newport-Mesa Unified Sch.
Dist., 154 Cal. Rptr. 3d 222, 226, 237–40 (Ct. App. 2013) (claim that
teacher was not properly given “first priority” in hiring under state statute
arose under distinct primary right from discrimination claim); George v.
Cal. Unemployment Ins. Appeals Bd., 102 Cal. Rptr. 3d 431, 438–41 (Ct.
App. 2009) (ALJ’s retaliation claim arose under distinct primary right
from wrongful suspension claim), and that some cases might suggest that
the availability of differing remedies would counsel against the application
FURNACE V. GIURBINO 15
We hold that the same primary right—Furnace’s right to
be free from unlawful gang validation and placement in the
SHU—was at issue in both suits.
2. Identity of Parties
As we suggested above, Furnace’s suit involves
“challenging the same actions by the same group of officials
at the same time that resulted in the same harm.” Id. at 1234
(emphasis added). Furnace asserts that the defendants in this
suit are different from the defendants in his state habeas suit.
And Appellees counter that California claim preclusion only
requires identity of the party against whom preclusion is
sought. Neither party is entirely correct on these points,
though we ultimately conclude that the requisite identity of
parties is met.
Appellees rely solely on California issue preclusion case
law to sustain the proposition that only the party against
whom preclusion is sought need be the same in both suits.
See, e.g., Lucido v. Superior Court, 795 P.2d 1223, 1225 (Cal.
1990). California’s claim preclusion case law—which has
distinct requirements—prevents relitigation “between the
same parties or parties in privity with them.” DKN Holdings,
352 P.3d at 386 (emphasis added) (internal quotation marks
omitted). That said, we cannot agree with Furnace that “the
defendants in this action were not defendants in Furnace’s
of claim preclusion, see Shoemaker v. Harris, 155 Cal. Rptr. 3d 76, 84 &
n.13; Branson v. Sun-Diamond Growers of Cal., 29 Cal. Rptr. 2d 314, 323
(Ct. App. 1994); Roberts v. Redlich, 244 P.2d 933, 935 (Cal. Dist. Ct.
App. 1952). These decisions all arose in very different contexts, predate
our decision in Gonzales, and do not, in any event, shake our confidence
that Gonzales was rightly decided.
16 FURNACE V. GIURBINO
state habeas proceeding.” At the time of his state habeas
petition, he named the then-warden, D. Adams, “et al.” as
respondents. He made numerous references to “prison
officials” throughout the petition, and most importantly, he
specifically named “R.L. Martinez,” “M. Valdez,” “Keri
Berkler,” “R.S. Marquez,” and “Everett W. Fischer” as
respondents.5
Accordingly, because Furnace’s suit involves “(1) the
same cause of action (2) between the same parties [or parties
in privity with them] (3) after a final judgment on the merits
in the first suit,” we affirm.6 DKN Holdings, 352 P.3d at 386.
B. PLRA Strike
The Appellees ask us to assess a strike against Furnace
under the Prison Litigation Reform Act (PLRA), 28 U.S.C.
5
The only current defendant not named was Giurbino, a party who
was nonetheless in privity with the other officials due to his supervisory
relationship in the prison system. DKN Holdings, 352 P.3d at 389 (noting
that privity is found where “separate defendants’ interests” are “closely
align[ed]” like “between a corporation and its employees, a general
contractor and subcontractors, an association of securities dealers and
member agents, and among alleged coconspirators” (emphasis added)
(citations omitted)).
6
Alternatively, the Appellees argue that Furnace failed to state a
retaliation claim because his placement in the SHU was supported under
the “some evidence” standard. See Superintendent v. Hill, 472 U.S. 445,
455 (1985). Because we affirm the district court on claim preclusion
grounds, we decline to address the Appellees’ argument, as well as
Furnace’s response, that a retaliation claim can survive a motion to
dismiss in the face of “some evidence” supporting a SHU placement. See
Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003); Hines v. Gomez,
108 F.3d 265, 269 (9th Cir. 1997).
FURNACE V. GIURBINO 17
§ 1915(g). Under § 1915(g), a prisoner can lose the ability to
file suits in forma pauperis (IFP) if he “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.”
Appellees assert that since this suit “duplicates claims
brought in an earlier action” it is “malicious” within the
meaning of the PLRA. See Pittman v. Moore, 980 F.2d 994
(5th Cir. 1993). The Appellees therefore want us to deem the
district court’s dismissal as Furnace’s first “strike.”
The question of whether Furnace’s dismissal in this case
was frivolous, malicious, or dismissed for failure to state a
claim is not germane at this point. Generally, “district courts
do not issue these strikes one by one, in their orders of
judgment,” because nothing in the PLRA requires them to do
so. Andrews v. King, 398 F.3d 1113, 1119 n.8 (9th Cir. 2005)
(internal quotation marks omitted). And by extension,
nothing in the PLRA requires us to do so at this time.
Typically it is not until a defendant “challenge[s] a prisoner-
plaintiff’s IFP status,” id. at 1120, that a backwards-looking
inquiry is done to assess whether “on 3 or more occasions,”
the prisoner-plaintiff’s suit was “dismissed on the grounds
that it [wa]s frivolous, malicious, or fail[ed] to state a claim
upon which relief may be granted,” 28 U.S.C. § 1915(g).
Accordingly, we decline the Appellees’ request to assess a
strike.7
7
We do note our skepticism, however, of labeling Furnace’s suit
“malicious” merely because of its repetitiveness. The fact that Furnace
had a good faith argument that his claims were not barred by California
claim preclusion weighs against finding Furnace’s suit “malicious” or
“frivolous.”
18 FURNACE V. GIURBINO
III. CONCLUSION
The judgment is AFFIRMED.