Duane Belanus v. Phil Clark

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DUANE RONALD BELANUS, No. 12-35952
Plaintiff-Appellant,
D.C. No.
v. 6:12-cv-00051-
DLC
PHIL CLARK; RAYMOND POTTER;
CORY OLSON; LARRY PLATTS;
ALLEN HUGHES; PAT HURLEY; LEO OPINION
DUTTON; LEO GALLAGHER; MELISSA
BROCH,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted
April 7, 2015—Seattle, Washington

Filed August 5, 2015

Before: Ferdinand F. Fernandez, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge
Fernandez
2 BELANUS V. CLARK

SUMMARY*

Prisoner Civil Rights

The panel affirmed the district court’s dismissal of a
prisoner civil rights complaint alleging constitutional
violations as a result of searches of plaintiff’s home, storage
shed, and workplace in 2008, that were made in connection
with his criminal prosecution.

The panel held that the district court properly noted that
to the extent plaintiff asserted that the evidence collected
during the searches caused his conviction, his claim was
barred by Heck v. Humphrey, 512 U.S. 477 (1994). To the
extent the claims were not barred by Heck, the panel held that
the district court also properly determined that the complaint
was barred by Montana’s three-year statute of limitations and
that equitable tolling did not apply because plaintiff knew of
the searches when they occurred and that they might be
warrantless. The panel further held that the district court
properly dismissed the complaint without leave to amend
because it was clear that no amendment could overcome the
statute of limitations bar.

The panel held that the district court acted within its
discretion in assessing a strike against plaintiff pursuant to 28
U.S.C. § 1915(g), even though he had paid the docket fee.
Determining that plaintiff had standing to challenge the
imposition of a strike pursuant to § 1915(g), the panel
concluded that applying a strike to a paid case was consistent

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 BELANUS V. CLARK 3

with the plain language of the statute, furthered the purposes
behind the Prison Litigation Reform Act, and accorded with
the rulings of four of other sister circuits.

Concurring in part and dissenting in part, Judge
Fernandez stated that it was not absolutely clear that the
deficiencies in plaintiff’s complaint could not be cured by
amendment and that plaintiff should have been given an
opportunity to plead a basis for equitable tolling. Judge
Fernandez also stated that the district court’s order that the
dismissal of plaintiff’s action counted as a strike did not have
any binding effect upon him, and therefore plaintiff had not
suffered an injury in fact sufficient to establish a case or
controversy.

COUNSEL

Thomas Christoph Keller (argued) and Britta Stamps
(argued), certified law student representatives, University of
Arkansas Federal Appellate Litigation Project, Fayetteville,
Arkansas; Lindsey C. Lien and Colin Seaborg, certified law
student representatives, Gregory C. Sisk, supervising
attorney, University of St. Thomas School of Law Appellate
Clinic, Minneapolis, Minnesota, for Plaintiff-Appellant.

Rebekah J. French, Special Assistant Attorney General,
Helena, Montana, for Amicus Curiae State of Montana.
4 BELANUS V. CLARK

OPINION

CALLAHAN, Circuit Judge:

Montana state prisoner Duane Ronald Belanus filed this
§ 1983 action asserting claims based on the alleged violation
of his rights under the United States and Montana
constitutions as a result of searches of his home, storage shed,
and workplace in 2008, that were made in connection with his
criminal prosecution. The district court dismissed his
complaint with prejudice at the screening stage and held that
Belanus’s complaint constituted a “strike” against him
pursuant to 28 U.S.C. § 1915(g). We affirm, holding that
Belanus cannot assert a cognizable claim for equitable tolling
of the statute of limitations, and that the district court could
determine that his complaint constitutes a “strike.”

I. Background

On August 3, 2008, Belanus returned to his home to find
the police searching his home. Belanus was detained and
later arrested. Belanus was charged “with kidnapping [his
girlfriend], raping her, inflicting bodily injury upon her in the
course of the rape, unlawfully tampering with physical
evidence of the rape, burglarizing [the girlfriend’s] residence,
and committing a theft therein.” State v. Belanus, 240 P.3d
1021, 1022–23 (Mont. 2010). Belanus was tried in June
2009, convicted, and, in August 2009, sentenced to life
without the possibility of parole. Belanus appealed to the
Montana Supreme Court, which affirmed his conviction. Id.
at 1025.

On June 5, 2012, Belanus, proceeding pro se, filed a civil
complaint in the United States District Court of the District of
 BELANUS V. CLARK 5

Montana. He alleged that the police had conducted
warrantless searches of his home, his shed, and his workplace
between August 3 and August 8, 2008, in violation of his
rights under the United States and Montana constitutions. He
named as defendants officers with the Lewis and Clark
County Sheriff’s Department and attorneys with the County.
He paid the filing fee.

The gist of Belanus’s complaint is that the police:
(1) searched his residence on August 3 and 4, 2008, prior to
the issuance of a warrant on August 5, 2008; (2) searched his
shed on August 5, 2008, prior to the issuance of a warrant on
August 12, 2008; and (3) between August 3 and 15, 2008,
searched his workplace without a warrant.

Belanus alleged that the “illegally obtained evidence was
knowingly used against me in court proceedings. I was
convicted of a crime that I still profess my innocence.”
Belanus sought “monetary damages in excess of $75,000
from each defendant for just causes of: physical, emotional,
mental, loss of freedom, and financial stress and anguish.”

Belanus’s complaint was reviewed by a Magistrate Judge,
who concluded that the complaint should be dismissed. He
reasoned that if Belanus was challenging his conviction, his
claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994),
and that it was otherwise barred by the applicable three-year
statute of limitations. The Magistrate Judge further found
that the dismissal of Belanus’s action would count as a strike
under 28 U.S.C. § 1915(g). Belanus filed objections to the
Magistrate Judge’s findings and recommendations, and the
District Judge adopted the Magistrate Judge’s findings and
recommendations, dismissed Belanus’s complaint with
prejudice, and held that the dismissal would count as a strike
6 BELANUS V. CLARK

pursuant to 28 U.S.C. § 1915(g). Belanus filed a timely
notice of appeal.

II. Standard of Review

We review de novo the district court’s dismissal of an
action under 28 U.S.C. § 1915A. Hamilton v. Brown,
630 F.3d 889, 892 (9th Cir. 2011). In determining whether a
complaint states a claim, “a court must accept as true all
allegations of material fact and must construe those facts in
the light most favorable to the plaintiff.” Id. at 892–93
(quoting Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
2000)). Also, questions of statutory interpretation, such as
the applicability of the strike provision of 28 U.S.C.
§ 1915(g), are reviewed de novo. Andrews v. King, 398 F.3d
1113, 1118 (9th Cir. 2005).

III. The Heck Bar

Because Belanus’s pro se complaint alluded to his
conviction and his assertion of innocence, the district court
properly noted that to the extent he asserted that the evidence
collected during the searches caused his conviction, his claim
was barred by Heck.1 512 U.S. at 487. The district court also

1
The Supreme Court held:

when a state prisoner seeks damages in a § 1983 suit,
the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already
been invalidated. But if the district court determines
that the plaintiff’s action, even if successful, will not
 BELANUS V. CLARK 7

recognized that if a determination of the constitutionality of
the searches did not necessarily imply the invalidity of
Belanus’s conviction, there was no Heck bar. As the thrust of
Belanus’s complaint did not appear to challenge his
conviction, the district court properly proceeded to consider
whether it was barred by the statute of limitations.

In Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th
Cir. 1995), we stated that where a defendant’s claims are
Heck-barred, the dismissal should be without prejudice “so
that [the plaintiff] may reassert his claims if he ever succeeds
in invalidating his conviction.” Accordingly, we construe the
district court dismissal of Belanus’s action to be without
prejudice as to any Heck-barred claim that he might assert at
some time in the future.

IV. The Statute of Limitations

As the district court and Belanus agree, the applicable
statute of limitations is Montana’s three-year statute of
limitations governing personal injury actions, Mont. Code
Ann. § 27-2-204(1). See Wilson v. Garcia, 471 U.S. 261, 280
(1985) (holding “that § 1983 claims are best characterized as
personal injury actions,” and that the lower court correctly
applied the state’s three-year statute of limitations governing
actions “for an injury to the person or reputation of any
person”).

demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be
allowed to proceed, in the absence of some other bar to
the suit.

512 U.S. at 487 (footnotes omitted).
8 BELANUS V. CLARK

Federal law determines when a cause of action accrues
and when the statute of limitations begins to run for a § 1983
claim. Wallace v. Kato, 549 U.S. 384, 388 (2007) (noting
that “the accrual date of a § 1983 cause of action is a question
of federal law”); Pouncil v. Tilton, 704 F.3d 568, 573 (9th
Cir. 2012) (stating that “[f]ederal law determines when a
cause of action for a Section 1983 claim accrues and, hence,
when the statute of limitations begins to run”).

Under federal law, a cause of action accrues when the
plaintiff knows or has reason to know of the injury that is the
basis of the action. Kimes v. Stone, 84 F.3d 1121, 1128 (9th
Cir. 1996); Pouncil, 704 F.3d at 574. Thus, “[a]n action
ordinarily accrues on the date of the injury.” Id.

Here, Belanus’s causes of action accrued on August 3,
2008, and on whatever dates over the next week that the
police searched his home, shed, and workplace. Belanus does
not deny that he knew of the searches. He states that when he
came home on August 3, 2008, the police were in his home.
Furthermore, the documents attached to his complaint
confirm that he was aware of the searches and the possible
lack of timely search warrants by the time of his trial in June
2009. Accordingly, on its face, Belanus’s June 5, 2012
complaint appears to be untimely and barred by Montana’s
three-year statute of limitations.

Belanus, however, argues that his complaint is not barred
because he can assert a viable argument for equitable tolling
of the statute of limitations. He notes that although federal
law determines the accrual of his cause of action, state law
governs the tolling of the statute of limitations in § 1983
cases. See Wallace, 549 U.S. at 394 (commenting “[w]e have
 BELANUS V. CLARK 9

generally referred to state law for tolling rules, just as we
have for the length of statutes of limitations”).

Citing Schoof v. Nesbit, 316 P.3d 831 (Mont. 2014),
Belanus argues that he has a viable argument that the statute
of limitations was equitably tolled under Montana law. In
Schoof, a county resident sought to challenge a decision by
the county commissioners to permit elected county officials
to receive cash payments in lieu of county contributions on
the officials’ behalf to a group health insurance program. Id.
at 833. Schoof did not file his action until several years after
the commissioners’ decision, and the defendants successfully
moved to dismiss on the ground that the action was barred by
the applicable thirty-day statute of limitations. Id. at 833–34.
On appeal, the Supreme Court of Montana determined that
Schoof’s complaint was timely under the equitable tolling
doctrine. Id. at 839–41.

Montana law provides that the period of limitation does
not begin until the claim has been discovered or should have
been discovered.2 Under Montana law, “[t]he doctrine of

2
The Montana Supreme Court noted that Mont. Code Ann. § 27-2-
102(3) provides:

The period of limitation does not begin on any claim or
cause of action for an injury to person or property until
the facts constituting the claim have been discovered or,
in the exercise of due diligence, should have been
discovered by the injured party if:

(a) the facts constituting the claim are by their nature
concealed or self-concealing; or
10 BELANUS V. CLARK

equitable tolling arrests the running of the limitations period
after a claim has accrued, allowing in limited circumstances
for an action to be pursued despite the failure to comply with
relevant statutory filing deadlines.” Id. at 839–40 (quotation
marks and citation omitted). The Montana Supreme Court
favorably compared its perspective to federal equitable tolling
rules, citing cases that held that: (1) equitable tolling is
limited to rare and exceptional circumstances where the
defendant is responsible for concealing the existence of
plaintiff’s cause of action; (2) equitable tolling “does not
require that the defendant’s conduct rise to the level of fraud,
or even be intentional, but only that the nature of the
defendant’s actions has concealed from the plaintiff the
existence of the claim”; and (3) equitable relief is only
available when the plaintiff is actually prevented from filing
on time despite exercising diligence. Id. at 840. The court
further noted that statutes of limitations “provide a reasonable
means of preventing stale claims and ensuring that claims are
filed before essential evidence disappears.” Id. at 841
(citation and quotation marks omitted). The Montana
Supreme Court concluded that Schoof’s allegations qualified
for equitable tolling because “neither he nor the public
learned or could have learned about the ‘cash in lieu’ policy
until four years after it had been adopted, at which time he
promptly filed suit.” Id. at 840.

Belanus argues that he is entitled to equitable tolling
because state and county officials did not respond to his

(b) before, during, or after the act causing the injury,
the defendant has taken action which prevents the
injured party from discovering the injury or its cause.

Schoof, 316 P.3d at 839.
 BELANUS V. CLARK 11

written requests for all warrants covering the searches.
However, it appears that at the time of his criminal trial, or
sometime thereafter, Belanus did receive copies of the search
warrants that issued on August 5 and 12, 2008. Belanus
alleges that he asked the attorney who was representing him
in his criminal proceedings to investigate the search warrant
issue. Belanus also asked the state trial court, as early as
November 10, 2010, to provide him with the full record.

Belanus’s plea for equitable tolling fails because, taking
his allegations as true, as we must, Hamilton, 630 F.3d at
892–93, Belanus knew of his cause of action well within the
three-year statute of limitations. As noted, federal law
determines when his cause of action arose. Bagley v. CMC
Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991).
Moreover, federal law holds that a cause of action for illegal
search and seizure accrues when the wrongful act occurs,
Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983),
even if the person does not know at that time that the search
was warrantless. See Kuan v. U.S. Customs Service, No. CV
08-1980-DDP (MAN), 2009 WL 6340016, at *5 (C.D. Cal.
Dec. 16, 2009).

Accordingly, because Belanus knew of the searches when
they occurred (or shortly thereafter), and that they might be
warrantless, the defendants’ alleged failures to respond to his
written inquiries, even if wrongful, do not provide a viable
basis for equitable tolling under Montana law. Defendants
did not conceal the existence of Belanus’s cause of action or
prevent him from filing his action within three years of the
search. To extend equitable tolling to Belanus’s claims
would be contrary to the purpose of the three-year statute of
limitations to ensure that claims are filed before essential
evidence disappears. See Schoof, 316 P.3d at 841.
12 BELANUS V. CLARK

Belanus’s complaint also asserted claims against the
prosecutors. However, these claims are not independent of
his other claims. To the extent that Belanus’s challenge to the
prosecutors’ actions necessarily implicate the validity of his
conviction, Belanus’s claims are barred by Heck, 512 U.S. at
487. In essence, Belanus alleges that the prosecutors
concealed the lack of warrants for the searches. He does not
allege any injury or violation of federal law caused by the
prosecutors’ alleged actions that is distinct or separate from
the allegedly unlawful searches. Accordingly, because the
materials submitted by Belanus with his complaint show that
he was aware, at the time of his trial in 2009, that the searches
may have been improper, his claims against the prosecutors
are also barred by the three-year statute of limitations.

Th district court properly dismissed Belanus’s complaint
without leave to amend for failure to state a cause of action
upon which relief could be granted. Based on all the
materials Belanus submitted to the district court, it is clear
that no amendment could overcome the statute of limitations
bar.

V. The District Court Acted Within Its Discretion in
Assessing a Strike Against Belanus Pursuant to
28 U.S.C. § 1915(g)

Belanus argues that the district court can only authorize
a strike pursuant to 28 U.S.C. § 1915(g) when the prisoner
action that is dismissed was filed in forma pauperis
(sometimes referred to as IFP). Section 1915(g) was enacted
as part of the Prison Litigation Reform Act (the PLRA) of
1995, and provides:
 BELANUS V. CLARK 13

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.

(emphasis added).

Belanus argues that although the phrase “action or
appeal” may seem broad, when read in context, it does not
include fee-paid actions. He asserts that the same phrase is
used in the statute’s pre-screening provision, 28 U.S.C.
§ 1915(e)(2)(B), and we have held that the pre-screening
provision applies only to in forma pauperis proceedings.
Belanus argues that Congress intended the phrase to have the
same meaning in both sections. Belanus further notes that we
held that the phrase “action or appeal” in § 1915(g) does not
include habeas proceedings. See Andrews, 398 F.3d at 1122
(noting that “dismissed habeas petitions do not count as
strikes under § 1915(g)”); Naddi v. Hill, 106 F.3d 275, 277
(9th Cir. 1997) (agreeing that dismissed habeas petitions do
not count as strikes under § 1915(g)).

Belanus urges that the broader context of § 1915,
including its title—“Proceedings in forma pauperis”—
indicates that fee-paid litigation does not qualify as an “action
or appeal.” He contends that a contrary interpretation would
produce absurd results as litigants like Belanus “would have
14 BELANUS V. CLARK

absolutely no incentive to pay filing fees up front until after
they have already accrued three strikes.” He further argues
that the district court’s approach would increase the amount
of in forma pauperis litigation in federal court and that “the
indiscriminate assessment of strikes would discourage
prisoners from working to fund their litigation, and would
unfairly penalize those who do work.” Belanus concludes by
asking us to “decline to follow the few non-binding decisions
from other circuits that have held that the plain language of
§ 1915(g) extends to fee-paid actions.”

Before addressing the merits of Belanus’s arguments, we
must determine whether he has standing to raise them. In
other words, has he “suffered an injury in fact—an invasion
of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992) (footnote and internal quotation marks and
citations omitted); see also Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 1999) (en
banc) (holding that issues presented must be “definite and
concrete, not hypothetical or abstract”—that plaintiffs “face
a realistic danger of sustaining a direct injury as a result of
the statute’s operation or enforcement,” rather than an
imaginary or speculative injury).

Although a close question, we find that Belanus has
presented a sufficiently concrete harm to allow us to consider
the merits of his contentions. If we affirm the district court’s
decision, Belanus will have one strike against him pursuant
to § 1915(g). True, it is only one strike. But as every
baseball batter knows, taking a first strike changes your
approach to the next pitch. Here, the strike will inevitably
influence Belanus’s determinations to seek judicial review in
 BELANUS V. CLARK 15

a federal court on any number of issues that may arise during
his sentence of life without the possibility of parole. We
conclude that Belanus has standing to challenge the
imposition of a strike pursuant to § 1915(g).3

Turning to the merits of Belanus’s claim, we conclude
that the fact that a prisoner pays the docket fee is no barrier
to a court, when dismissing the case as frivolous, directing
that the dismissal count as a strike under 28 U.S.C. § 1915(g).
Our starting point is the plain language of the statute, United
States v. Williams, 659 F.3d 1223, 1225 (9th Cir. 2011), and
here the language is clear. The words “an action or appeal”
are not modified and have an ordinary meaning. Where “the
statute’s language is plain, the sole function of the courts is to
enforce it according to its terms.” United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989) (internal quotation
marks and citation omitted). Accordingly, we are constrained
by Congress’s choice of language to allow dismissals in “an
action or appeal,” to be designated as strikes under § 1915(g),
regardless of whether the filing fee was paid.

Furthermore, this interpretation is consistent with and
furthers the statute’s purposes. The filing fee provisions of
§ 1915 “were enacted to deter the large number of frivolous
inmate lawsuits that were ‘clogging’ the federal courts and
‘draining’ limited judicial resources.” Taylor v. Delatoore,
281 F.3d 844, 849 (9th Cir. 2002). A frivolous action clogs
the system and drains resources regardless of whether the
plaintiff pays the filing fee or proceeds in forma pauperis.
We see no reason for allowing wealthy prisoners to clog the

3
Our conclusion is consistent with the Seventh Circuit’s perspective.
See Duvall v. Miller, 122 F.3d 489, 490 (7th Cir. 1997) (holding that the
dismissal of a paid appeal could count as a strike under § 1915(g)).
16 BELANUS V. CLARK

courts by paying the filing fees, when access would be denied
to an impecunious prisoner, particularly as filing fees do not
come close to covering the cost to the court of a frivolous
action. See Hyland v. Clinton, 3 F. App’x. 478, 480 (6th Cir.
2001) (noting that “imposition of sanctions is particularly
appropriate, because it appears that Hyland has the funds to
continue to prosecute suits without regard to § 1915(g)”).

In Duvall v. Miller, 122 F.3d 489 (7th Cir. 1997), the
Seventh Circuit considered and rejected an argument similar
to that advanced by Belanus. It commented:

The only reason we can think of for
interpolating such a limitation is that a
prisoner who had paid for the previous suit or
appeal had by doing so manifested a greater
seriousness than one who had done so at no
cost to himself. We do not think this
speculative reason is sufficiently strong to
override the statutory language. The prisoner
who has brought three suits or appeals that
lacked sufficient merit to get beyond the
pleadings (or that were an outright abuse of
process) is not an appealing candidate for a
waiver of the filing fee in his fourth through
nth cases, even if he paid for the previous
suits. We therefore hold that a dismissal need
not, to qualify as a strike, be of an action or
appeal filed in forma pauperis.

Id. at 490. We agree with the Seventh Circuit. Neither the
purported “seriousness” of a paid filing, nor Belanus’s
speculation that applying § 1915(g) to paid filings would
 BELANUS V. CLARK 17

discourage paid filings, are sufficient to allow us to disregard
the plain language of the statute.

Belanus’s references to other similar language in the
PLRA and to our exclusion of habeas petitions from
§ 1915(g) coverage are not supportive of his position.
Neither reference supports his reading of “action or appeal”
in § 1915(g). The reasons for holding that pre-screening
provisions apply only to IFP proceedings do not resonate
when interpreting “action or appeal” as used in § 1915(g).4

4
None of the cases cited by Belanus as holding that the pre-screening
provisions apply only to IFP proceedings are directly applicable to his
case. In Marks v. Solcum, 98 F.3d 494 (9th Cir. 1996), we determined that
“[b]ecause section 1915(e)(2) does not impair any substantive rights of
prisoners, but instead merely affects the ability of prisoners to maintain
appeals in forma pauperis, we conclude that section 1915(e)(2) is a
procedural rule which raises no retroactivity concerns.” Id. at 496. This
holding has little relevance to § 1915(g).

In Grayson v. Mayview State Hospital, 293 F.3d 103, 109 n.10 (3d
Cir. 2002), the Third Circuit commented:

Although the language of § 1915(e)(2) does not
expressly limit the provision’s reach to in forma
pauperis claims, we believe Congress intended it to be
so limited. See Benson v. O’Brian, 179 F.3d 1014,
1016–17 (6th Cir. 1999). The provision is located
within § 1915, entitled “Proceedings in forma
pauperis,” and it replaces § 1915(d), which only
applied to in forma pauperis claims. Id. at 1016.
Further, a contrary interpretation expanding
§ 1915(e)(2) to all suits would both alter radically the
process of civil litigation in federal courts and make
similar provisions of the PLRA superfluous. Id. at
1017. Indeed, we have previously stated that “Section
804 of the PLRA, which amends 28 U.S.C. § 1915,
redefines the rights and obligations of litigants who are
18 BELANUS V. CLARK

We do not think that the provisions in the PLRA setting forth
the contours for proceeding in forma pauperis conflict in any
way with allowing § 1915(g) strikes to issue in paid actions
or appeals.

Our conclusion is supported by four of our sister circuits
that have held that strikes under § 1915(g) may be accrued
regardless of whether the prisoner has paid the filing fee or is
proceeding in forma pauperis. Byrd v. Shannon, 715 F.3d
117, 124 (3d Cir. 2013) (holding that “strikes may be accrued
in actions or appeals regardless of whether the prisoner has
prepaid the filing fee or is proceeding IFP”); Duvall, 122 F.3d
at 490 (holding “that a dismissal need not, to qualify as a
strike, be of an action or appeal filed in forma pauperis”);
Burghart v. Corr. Corp. of Am., 350 F. App’x 278, 279 (10th
Cir. 2009) (noting that the statute’s purposes “are achieved by
preventing a prisoner who has paid filing fees in past
frivolous law suits from proceeding IFP, just as they are
achieved by preventing a prisoner from proceeding IFP for

granted in forma pauperis status.” Santana v. United
States, 98 F.3d 752, 753–54 (3d Cir. 1996).

But the redefinition of the rights and obligations of individuals granted
leave to proceed IFP is not inconsistent with reading the plain language in
§ 1915(g) as covering both paid and IFP actions.

In Benson v. O’Brian, 179 F.3d 1014, 1016 (6th Cir. 1999), the Sixth
Circuit held that pre-screening under § 1915(e)(2) applied only to IFP
cases because pre-screening all complaints: (a) would render the specific
prisoner complaint screening provision, § 1915A, largely superfluous; and
(b) “such a holding would completely negate the policy of this and several
other circuits that a plaintiff generally should be given notice and an
opportunity to respond prior to the district court's sua sponte dismissal of
the complaint.” Id. at 1017. Again these reasons provide little guidance
to our reading of § 1915(g).
 BELANUS V. CLARK 19

the fourth or fifth time”); Hyland, 3 F. App’x at 480 (noting
that “[t]he imposition of sanctions is particularly appropriate,
because it appears that Hyland has the funds to continue to
prosecute suits without regard to § 1915(g)”). No court of
appeal appears to have held that strikes may only be accrued
in IFP actions or appeals. The district court did not abuse its
discretion in assessing a strike against Belanus.

VI. Conclusion

Pursuant to the pre-screening procedures set forth in the
PLRA, the district court properly considered Belanus’s
complaint and summarily determined that he could not state
a cause of action. We affirm that decision. The materials
submitted by Belanus in support of his complaint show that
Belanus knew of the searches in August 2008. Under federal
law, his claims concerning the searches accrued at that time.
See Pouncil, 704 F.3d at 574. Under the applicable Montana
law, his claims could only be equitably tolled if the
defendants had concealed the existence of his claim or
prevented him from filing a timely lawsuit. Schoof, 316 P. 3d
at 840–41. Taking Belanus’s filings as true, he has not, and
cannot, make such a showing. Accordingly, he has failed to
allege a viable claim for equitable tolling and we affirm the
district court’s dismissal of his action.

We also affirm the district court’s decision to count the
dismissal as a strike against Belanus for purposes of
28 U.S.C. § 1915(g). We conclude that applying a strike to
a paid case is consistent with the plain language of the statute,
furthers the purposes behind the Prison Litigation Reform
Act, and accords with the rulings of four of our sister circuits.
20 BELANUS V. CLARK

The district court’s dismissal and award of a strike under
§ 1915(g) are AFFIRMED.

FERNANDEZ, Circuit Judge, concurring in part and
dissenting in part:

I agree with much of what the majority says. I
specifically agree with parts I, II and III of the majority
opinion. The parts with which I do not entirely agree are IV,
V and VI.

A. As to part IV, I think it is fair to assume that we all
agree that “[a] district court should not dismiss a pro se
complaint without leave to amend unless ‘it is absolutely
clear that the deficiencies of the complaint could not be cured
by amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012).

So where do I diverge from my colleagues? Well, the
district court did not consider the fact that Montana allows
equitable tolling “where a plaintiff is substantially prejudiced
by a defendant’s concealment of a claim, despite the exercise
of diligence by the plaintiff.” Schoof v. Nesbit, 316 P.3d 831,
841, 373 Mont. 226, 239 (2014); see also Hardin v. Straub,
490 U.S. 536, 539, 109 S. Ct. 1998, 2000–01, 104 L. Ed. 2d
582 (1989); cf. Wallace v. Kato, 549 U.S. 384, 391–95, 127
S. Ct. 1091, 1097–99, 166 L. Ed. 2d 973 (2007). Belanus’
pleading does suggest that he was unable to determine the
illegality of the searches because the police officers testified
that there were warrants, and despite his requests, the
defendants failed and refused to supply him with copies of the
 BELANUS V. CLARK 21

alleged warrants, if any existed. In light of that, even though
he did not sufficiently plead his claims or his entitlement to
equitable tolling, at this point1 I am unable to say that it is
absolutely clear that the deficiencies cannot be cured by
amendment.

While I am not at all certain that Belanus can spell out a
basis for equitable tolling, I do believe that he should have
been given an opportunity to do so. For example, from what
we have in the record before us, he was not given a copy of
the receipt from the August 3, 2008, search of his home that
he came upon while the officers were there, and at his trial in
June 2009 the officers testified that a warrant was, indeed,
issued before the search took place. It was not until late 2009
or early 2010 that he discovered (suspected) that there was no
such warrant. Allegations along those lines might suffice to
spell out a period of equitable tolling sufficient to extend the
statute of limitations period to or after June 5, 2012. Of
course, I do not know that he can, or will be able to, so plead.
I only say that giving him an opportunity so to do is not
chimerizing — the district court should have given him that
opportunity.

B. As to part V, while I do not disagree with the
majority’s discussion of the merits, I do not think that the
district court’s unnecessary order that the dismissal of
Belanus’ action “counts as a strike” has any binding effect
upon him or upon any future court. That is, Belanus has not

1
I recognize that Montana argues that Belanus will not be able to allege
sufficient facts, but that is best considered by the district court after
Belanus has an opportunity to amend the current complaint. See Gallardo
v. United States, 755 F.3d 860, 865 (9th Cir. 2014); Whalem/Hunt v.
Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (per curiam).
22 BELANUS V. CLARK

suffered “an injury in fact — an invasion of a legally
protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct.
2130, 2136, 119 L. Ed. 2d 351 (1992) (footnote, citations and
internal quotation marks omitted). If and when Belanus does
file another case in federal court seeking redress for some
asserted wrong, and if and when he has insufficient funds and
files a motion to proceed in forma pauperis, and if and when
a district court denies that motion because it has been
demonstrated that Belanus has previously accrued three
strikes pursuant to 28 U.S.C. § 1915(g), that rejection order
will be appealable. See Andrews v. King, 398 F.3d 1113,
1118–19 (9th Cir. 2005). But at this point, any suggestions
“of possible future injury do not satisfy the requirements of
Art. III.” Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.
Ct. 1717, 1724, 109 L. Ed. 2d 135 (1990). Thus, I would
determine that as to strikes no case or controversy within the
meaning of the Constitution exists at this time. See Thomas
v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139
(9th Cir. 2000) (en banc).2 It is tempting to issue an advisory
opinion on the strike question for future courts that might
have to struggle with deciding whether a previous piece of
litigation did result in a strike, but I think that the temptation
should have been resisted by the district court and should be
resisted by us.3 See Thomas, 220 F.3d at 1138; cf. Coleman

2
It matters not whether we view the issue “as one of standing or
ripeness.” Id.
3
Moreover, I fear that our holding, which makes district courts’
advisory rulings about whether dismissals are strikes binding and
appealable, will lead to a morass of procedural problems for plaintiffs,
defendants, and courts. Problems may arise when those rulings are made
 BELANUS V. CLARK 23

v. Tollefson, __ U.S. __, __, 135 S. Ct. 1759, 1765, __ L. Ed.
2d__ (2015) (the time to appeal “from a third-strike trial-
court dismissal” is when it occurs).

Therefore, I respectfully concur in part and dissent in part.

and in the future when a prisoner seeks to take advantage of the provisions
of § 1915(a). See Andrews, 398 F.3d at 1120.