FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY LEE MOORE, No. 10-16736
Plaintiff-Appellant,
D.C. No.
v.
2:10-cv-01495-
MARICOPA COUNTY SHERIFF’S GMS-JRI
OFFICE,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted
August 8, 2011—San Francisco, California
Filed September 13, 2011
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Graber
17445
MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17447
COUNSEL
Steven H. Goldblatt, Director, Katherine Bushman, Supervis-
ing Attorney, and Adam Bellotti, Certified Law Student,
Georgetown University Law Center, Appellate Litigation Pro-
gram, Washington, D.C., for the plaintiff-appellant.
17448 MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE
J. Scott Dutcher, Deputy County Attorney, Maricopa County
Office of General Litigation Services, Phoenix, Arizona, for
the defendant-appellee.
OPINION
GRABER, Circuit Judge:
Plaintiff Larry L. Moore is a frequent filer of lawsuits and
is indigent. In this action, Plaintiff seeks money damages and
other relief against Defendant Maricopa County Sheriff’s
Office resulting from alleged mistreatment of Plaintiff when
he was a prisoner. As Plaintiff had done several times before,
he sought to proceed in forma pauperis (“IFP”) in this case.
The district court held that four previous actions filed by
Plaintiff qualified as “strikes” under 28 U.S.C. § 1915(g) and,
therefore, denied Plaintiff IFP status. Plaintiff timely appeals.
Because only two of the four dismissals identified by the dis-
trict court qualify as “strikes” under the statute, we reverse
and remand for further proceedings.
“Plaintiffs normally must pay $350 to file a civil complaint
in federal district court, but 28 U.S.C. § 1915(a)(1) allows the
district court to waive the fee, for most individuals unable to
afford it, by granting IFP status.” Andrews v. Cervantes, 493
F.3d 1047, 1051 (9th Cir. 2007) (citation omitted). All per-
sons, not just prisoners, may seek IFP status. Id. at 1052 n.1.
But a prisoner faces an additional hurdle. In a statutory pro-
vision “nicknamed the ‘three-strikes rule,’ ” id. at 1049, Con-
gress prohibited the grant of IFP status to a prisoner if he or
she had filed three or more prior actions, as a prisoner, that
were dismissed for certain specified reasons. The provision
states:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding
MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17449
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 pris-
oner is under imminent danger of serious physical
injury.
28 U.S.C. § 1915(g).
Here, the district court held that four of Plaintiff’s previ-
ously dismissed actions qualify as “strikes.” Plaintiff argues
that the district court erred because only two of the previously
dismissed actions qualify as “strikes.” Before reaching the
merits of Plaintiff’s argument, we must consider whether this
appeal is moot.
A. Mootness
[1] While this appeal was pending, Plaintiff was released
from jail on parole. Accordingly, Plaintiff is no longer a “pris-
oner” for purposes of § 1915(g), and the three-strikes rule no
longer applies to actions that he files. See 28 U.S.C. § 1915(h)
(defining the term “prisoner,” which does not include persons
released on parole). Defendant argues that this appeal is moot
because, as a non-prisoner, Plaintiff could re-file this action
and seek IFP status unhindered by the three-strikes rule.1
[2] Defendant concedes that the underlying action—an
action for damages resulting from alleged mistreatment—is
1
Defendant also argues that this appeal is moot because Plaintiff cannot
prevail on the merits of his claims. The issue on appeal is only whether
§ 1915(g) prohibits Plaintiff’s proceeding IFP; resolution of that issue is
a live controversy even if Plaintiff ultimately were to lose on the merits
of his underlying claims. We express no opinion on the merits of Plain-
tiff’s underlying claims.
17450 MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE
not moot. Additionally, if we rule in Plaintiff’s favor on
appeal, this action will proceed to the next stage on remand.
Defendant’s mootness argument hinges on the fact that Plain-
tiff has a roughly equivalent alternative avenue to reach the
same stage of litigation: Plaintiff could re-file this action as a
non-prisoner. Because he is no longer a prisoner, Plaintiff
automatically would clear the § 1915(g) hurdle.2
[3] Plaintiff asserts that filing a new action would not pre-
serve his rights in the same manner as the current action does
because, for example, the statute of limitations may have run.
We need not consider those arguments, however, because a
more fundamental flaw exists in Defendant’s mootness argu-
ment. When considering whether a case is moot, we ask
whether we can grant any effective relief “within the confines
of the case itself.” Tur v. YouTube, Inc., 562 F.3d 1212, 1214
(9th Cir. 2009) (per curiam) (emphasis added); see Comm’r
v. Pattullo (In re Pattullo), 271 F.3d 898, 901-02 (9th Cir.
2001) (order) (“To have jurisdiction, we must be able to grant
effective relief within the boundaries of the present case . . . .”
(emphasis added)). Because the underlying substantive claims
are not moot and because a ruling in favor of Plaintiff would
permit those claims to proceed, we can provide effective
relief, and this appeal is not moot. If the district court erred
in dismissing the case, Plaintiff is entitled to continue to liti-
gate this very case.3 That is effective relief even if, in theory,
some other relief also would be effective. Defendant has not
met its heavy burden of establishing mootness.
2
This is not to say that Plaintiff necessarily qualifies for IFP status. That
determination would be up to the district court to determine, if properly
requested, in the first instance. See also 28 U.S.C. § 1915(e)(2) (requiring
the district court to dismiss a case “at any time” if certain conditions are
met).
3
We emphasize that, on remand, the district court should reconsider
anew any IFP application. See supra note 2.
MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17451
B. Scope of the Three-Strikes Rule
Plaintiff makes a two-step argument about the rule. First,
he argues that a dismissal for lack of subject-matter jurisdic-
tion does not qualify as a “strike” under § 1915(g). Second,
Plaintiff argues that, because two of the four dismissals identi-
fied by the district court were for lack of subject-matter juris-
diction, the district court erred in denying him IFP status. We
review de novo “[t]he district court’s interpretation and appli-
cation of § 1915(g).” Andrews v. King, 398 F.3d 1113, 1118
(9th Cir. 2005).
1. Dismissal for Lack of Subject-Matter Jurisdiction and
§ 1915(g)
[4] The question whether a dismissal for lack of subject-
matter jurisdiction constitutes a “strike” for purposes of
§ 1915(g) is an issue of first impression in this circuit. In a
published opinion, the District of Columbia Circuit held that
a dismissal for lack of subject-matter jurisdiction does not
qualify as a “strike” for purposes of § 1915(g). Thompson v.
DEA, 492 F.3d 428, 437 (D.C. Cir. 2007). We agree with, and
adopt, its reasoning and conclusion.
[5] The text of § 1915(g) provides that a previous case
qualifies as a “strike” if it “was dismissed on the grounds that
it is frivolous, malicious, or fails to state a claim upon which
relief may be granted.” “Surely, there is nothing necessarily
frivolous or malicious in bringing an action for which the
court lacks jurisdiction.” Thompson, 492 F.3d at 437; see also
id. (“[B]ecause understanding federal court jurisdiction is no
mean feat even for trained lawyers, creating a rule that
mechanically treats dismissals for lack of jurisdiction as
strikes would pose a serious risk of penalizing prisoners pro-
ceeding in good faith and with legitimate claims.”).
[6] “Equally clearly, a dismissal for lack of jurisdiction is
not the same as a dismissal for failure to state a claim: in
17452 MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE
enacting section 1915(g), Congress chose to mirror the lan-
guage of Federal Rule of Civil Procedure 12(b)(6), not
12(b)(1).” Id.; cf. Andrews, 398 F.3d at 1121 (“We have held
that the phrase ‘fails to state a claim on which relief may be
granted,’ as used elsewhere in § 1915, ‘parallels the language
of Federal Rule of Civil Procedure 12(b)(6).’ ” (quoting Bar-
ren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(order))). The three-strikes rule counts a dismissal as a strike
if the court held that the action “fails to state a claim upon
which relief may be granted.” 28 U.S.C. § 1915(g). Other
than verb tense, that text is identical to the text of Federal
Rule of Civil Procedure 12(b)(6): “failure to state a claim
upon which relief can be granted.” Nowhere does the three-
strikes rule mention “lack of subject-matter jurisdiction,” the
text of Rule 12(b)(1). Like the District of Columbia Circuit,
we conclude that Congress intended for the three-strikes rule
to count 12(b)(6) dismissals but not 12(b)(1) dismissals.4 See
Atl. Sounding Co. v. Townsend, 129 S. Ct. 2561, 2573 (2009)
(“We assume that Congress is aware of existing law when it
passes legislation . . . .” (citations and internal quotation
marks omitted)).
2. Plaintiff’s Previous Dismissals
Plaintiff argues that two of the four previous dismissals
identified by the district court do not qualify as strikes
because they were dismissed for lack of subject-matter juris-
diction. In both cases, Plaintiff filed a complaint but failed to
select a valid jurisdictional basis for the action on a form
labeled “CIVIL RIGHTS COMPLAINT BY A PRISONER.”
In one case, he left the jurisdictional basis blank. In the sec-
ond case, he checked the box “Other” and wrote in “Maricopa
County, Superior Court in Arizona.” In separate written
orders, the district court dismissed the actions.
4
We note that, like the defendant in Thompson, Defendant here does not
challenge that legal conclusion. See 492 F.3d at 437 (stating that “the gov-
ernment wisely conceded that dismissals for lack of jurisdiction do not
count as strikes within the meaning of section 1915(g)”).
MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17453
In the first case, the district court’s order stated:
III. Lack of Jurisdiction
Federal courts have limited jurisdiction, and limi-
tations on the court’s jurisdiction must neither be
disregarded nor evaded. Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374 (1978). The Court
is obligated to determine sua sponte whether it has
subject matter jurisdiction. See Valdez v. Allstate Ins.
Co., 372 F.3d 1115, 1116 (9th Cir. 2004). See also
Fed. R. Civ. P. 12(h)(3) (“If the court determines at
any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.”).
Rule 8(a) of the Federal Rules of Civil Procedure
requires that “[a] pleading that states a claim for
relief must contain: (1) a short and plain statement of
the grounds for the court’s jurisdiction . . . .” In order
to proceed in federal court, Plaintiff must demon-
strate some right of action and legal entitlement to
the damages he seeks. In a case challenging his con-
ditions of confinement while a prisoner, the most
likely source of a right to sue is 42 U.S.C. § 1983.
The Court has jurisdiction over such cases pursuant
to 28 U.S.C. § 1343(a)(3).
Plaintiff has not alleged that this case arises pursu-
ant to 42 U.S.C. § 1983 or that the Court has juris-
diction pursuant to 28 U.S.C. § 1343(a)(3). Instead,
he has left the “Jurisdiction” section of the court-
approved form blank. See Watson v. Chessman, 362
F. Supp. 2d 1190, 1194 (S.D. Cal. 2005) (“The court
will not . . . infer allegations supporting federal juris-
diction; federal subject matter [jurisdiction] must
always be affirmatively alleged.”). Therefore, the
Court will dismiss Plaintiff’s Complaint without
prejudice.
17454 MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE
....
IT IS ORDERED:
....
(3) The Complaint (Doc. #1) is dismissed without
prejudice for lack of subject matter jurisdiction.
Plaintiff has 30 days from the date this Order is filed
to file a first amended complaint in compliance with
this Order.
(Alterations in original; boldface type omitted.) The district
court’s order in the second case was identical, with one
exception. Instead of stating that Plaintiff did not specify a
jurisdictional basis, the order stated: “He has alleged only that
the Court has jurisdiction pursuant to ‘Maricopa County,
Superior Court in Arizona.’ That is a statement describing a
court, not a jurisdictional basis.” In both cases, Plaintiff failed
to amend within 30 days.
The district court’s orders are clear: The actions were dis-
missed “for lack of subject matter jurisdiction.” The district
court clearly explained that it must inquire into its jurisdiction
and, because Plaintiff did not specify a valid jurisdictional
basis, it must dismiss for lack of subject-matter jurisdiction
because a jurisdictional basis cannot be inferred.
Defendant does not dispute that the district court dismissed
for lack of jurisdiction. Instead, in its response brief on
appeal, Defendant argues that the cases “were dismissed for
lack of subject matter jurisdiction and for [Plaintiff’s] failure
to state a claim.” Defendant supports that position by refer-
ence to certain text in the district court’s reasoning that states
that, because it lacked subject-matter jurisdiction, the action
was dismissed for failure to state a claim.
Viewed in isolation, those portions of the district court’s
reasoning could be interpreted as having dismissed the action
MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17455
for both reasons—lack of jurisdiction and failure to state a
claim. Ordinarily, one could view the holdings as alternative
holdings, as Defendant urges. In these circumstances, how-
ever, it is not possible for the district court to have made this
type of alternative holding. A federal court cannot assume
subject-matter jurisdiction to reach the merits of a case. Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
And the Supreme Court has specifically instructed that a dis-
trict court must first determine whether it has jurisdiction
before it can decide whether a complaint states a claim. See
Bell v. Hood, 327 U.S. 678, 682 (1946) (“[I]t is well settled
that the failure to state a proper cause of action calls for a
judgment on the merits and not for a dismissal for want of
jurisdiction. Whether the complaint states a cause of action on
which relief could be granted is a question of law . . . [that]
must be decided after and not before the court has assumed
jurisdiction over the controversy.”).
[7] The operative portions of the district court’s orders are
clear: The actions were dismissed for lack of subject-matter
jurisdiction. While there may be some ambiguity as to the
court’s reasoning, we will not interpret that ambiguity in a
manner that conflicts with a clear and longstanding Supreme
Court directive. The only reasonable interpretation of the dis-
trict court’s orders is that the court dismissed the cases for
lack of subject-matter jurisdiction.
[8] Because only two of the four previous dismissals iden-
tified by the district court qualify as “strikes” under
§ 1915(g), we hold that the district court erred in determining
that the three-strikes rule prohibits the grant of IFP status to
Plaintiff. We remand to the district court for further proceed-
ings consistent with this opinion.
REVERSED and REMANDED.