O'Neal v. Price ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUIS BUTLER O’NEAL,  No. 06-15591
Plaintiff-Appellant,
v.  D.C. No.
CV-02-01824-LKK
PRICE, CDC Staff Counselor,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior Judge, Presiding
Argued and Submitted
November 8, 2007—San Francisco, California
Filed July 14, 2008
Before: Sidney R. Thomas, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Thomas
8675
O’NEAL v. PRICE 8679
COUNSEL
Adam Grace, Law Office of Adam Grace, Stockton, Califor-
nia, for the plaintiff-appellant.
8680 O’NEAL v. PRICE
Megan O’Carroll, Deputy Attorney General, Sacramento,
California (argued); Barbara A. Morris, Deputy Attorney
General, Sacramento, California, for the defendant-appellee.
OPINION
IKUTA, Circuit Judge:
Section 1915(g) of the Prison Litigation Reform Act of
1995 (“PLRA”), 110 Stat. 1321-711, precludes a prisoner
from proceeding in forma pauperis if on three or more prior
occasions the prisoner incurred a “strike,” that is, had brought
an action that was dismissed because it was frivolous, mali-
cious, or failed to state a claim. In this appeal, Louis O’Neal
challenges the district court’s determination that he incurred
three strikes. Because we agree that the three prior actions
identified by the district court constituted strikes for purposes
of 28 U.S.C. § 1915(g), we affirm.
I
On October 15, 2002, Louis O’Neal, a prisoner incarcer-
ated in Folsom State Prison, filed a complaint in federal dis-
trict court alleging that he had suffered injuries resulting from
punitive confinement and inadequate medical care, and that
his transfer to Ironwood State Prison had been delayed due to
a breach of the duty of care on the part of J. Price, a counselor
1
28 U.S.C. § 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a judg-
ment in a civil action or proceeding under this section if the pris-
oner 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 friv-
olous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of seri-
ous physical injury.
O’NEAL v. PRICE 8681
at the prison. In his motion to dismiss, Price asserted that
O’Neal had struck out under § 1915(g). Price attached district
court records for three past actions filed in the Central District
of California in which O’Neal was the plaintiff: O’Neal v.
Schelage, No. 94-4594 (C.D. Cal.) (“Schelage”); O’Neal v.
Cal. State Prison, No. 00-8418 (C.D. Cal.) (“CSP”); and
O’Neal v. Parriott, No. 99-8370 (C.D. Cal.) (“Parriott”). The
United States District Court for the Eastern District of Cali-
fornia granted Price’s motion to dismiss. We vacated the
judgment of the district court and remanded with instructions
to reconsider the matter in light of Andrews v. King, 398 F.3d
1113 (9th Cir. 2005).
On remand, the district court again dismissed O’Neal’s
claim without prejudice on the ground that O’Neal had struck
out under 28 U.S.C. § 1915(g). This determination was sup-
ported by the following information. For Schelage, the record
included a district court order denying O’Neal leave to pro-
ceed in forma pauperis for five reasons: 1) “No federal juris-
diction”; 2) “Fails to allege compliance with [Federal Tort
Claim Act] and/or name proper defendant”; 3) “Sovereign
Immunity as to United States and/or federal agency as to
[Social Security Administration]”; 4) “The SSA/USA has not
consented to suit for damages”; and 5) “No ground of error
stated for review under 42 U.S.C. § 405(g); case belongs in
E.D. Cal; none of the parties reside in CDC and none of the
claims arose here.” The record also contained a docket sheet,
which included the entry:
ORDER DENYING lv to file action w/o prepayment
of fees by Judge Manuel L. Real terminating case
(am) [Entry date 07/11/94]
For CSP, the record included a district court order denying
O’Neal leave to proceed in forma pauperis. The order stated:
“IT IS RECOMMENDED that the application of prisoner
plaintiff to file the action without prepayment of the full filing
8682 O’NEAL v. PRICE
fee be DENIED for the following reason(s): Failure to State
a Claim,” and continued:
A state prisoner has no cause of action under 42
U.S.C. § 1983 for an unauthorized deprivation of
property, either intentional or negligent, by a state
employee if a meaningful state post-deprivation rem-
edy for the loss is available. Hudson v. Palmer, 468
U.S. 517, 533 (1984). California law provides an
adequate post-deprivation remedy for any property
deprivations. Barnett v. Centoni, 31 F.3d 813, 816-
817 (9th Cir. 1994).
The record also contained a docket sheet, which included the
entries:
ORDER by Judge Terry J. Hatter denying motion to
proceed without prepayment of full filing fee [1-1]
Recommended by Magistrate Judge Ralph Zarefsky
(Case terminated. MD JS-6) ENT 8/24/00 (pc)
[Entry date 08/24/00]
RETURNED lodged complaint and copy of Order to
plaintiff Louis Butler O’Neal (pc) [Entry date 08/
24/00]
For Parriott, the record included a one-page district court
order adopting the magistrate judge’s report and dismissing
O’Neal’s claim with prejudice. The magistrate judge had rec-
ommended that the matter be dismissed, stating:
Plaintiff has failed to exhaust administrative reme-
dies as required. If this were the only apparent short-
coming, then the undersigned would likely
recommend dismissing this action without prejudice
to Plaintiff’s filing another action after exhausting
such remedies. However, Plaintiff has also failed, in
four attempts, to state a substantive claim for the
O’NEAL v. PRICE 8683
alleged deprivation of his medicine in 1999.
Although a pro se litigant must be given leave to
amend his or her complaint unless it is absolutely
clear that the deficiencies of the complaint could not
be cured by amendment, see Noll v. Carlson, 809
F.2d 1446, 1448 (9th Cir. 1987), under the circum-
stances, Plaintiff should not be given a fifth chance
to cure the deficiencies. McHenry v. Renne, 84 F.3d
1172, 1178-80 (9th Cir. 1996) (affirming dismissal
with prejudice of civil rights plaintiff’s Fourth
Amended Complaint for repeated failures to correct
noted pleading shortcomings). Therefore, the Com-
plaint should be dismissed without leave to amend.
O’Neal sought to appeal. Pursuant to 28 U.S.C.
§ 1915(a)(3), the district court certified in writing that
O’Neal’s appeal was not taken in good faith.2 On July 19,
2006, we granted O’Neal leave to proceed in forma pauperis,
with the condition that he must eventually pay the full amount
of the filing and docketing fees for this appeal.
On appeal, O’Neal claims that Schelage and CSP did not
constitute strikes under 28 U.S.C. § 1915(g) because the rele-
vant district courts had disposed of the actions by denying
O’Neal’s applications to proceed without prepayment of the
full filing fee. Second, O’Neal claims that Parriott did not
constitute a strike because the district court considering that
action had not dismissed it for one of the reasons enumerated
in § 1915(g).
II
[1] Before reaching O’Neal’s arguments, we must first
determine whether we have jurisdiction to consider O’Neal’s
2
28 U.S.C. § 1915(a)(3) states:
An appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.
8684 O’NEAL v. PRICE
appeal given the district court’s certification that the appeal
was not taken in good faith. 28 U.S.C. § 1915(a)(3) provides
that “[a]n appeal may not be taken in forma pauperis if the
trial court certifies in writing that it is not taken in good
faith.” However, subsections (a)(4) and (5) of Rule 24 of the
Federal Rules of Appellate Procedure give litigants a proce-
dural route for challenging the trial court’s certification.
These subsections state:
(4) Notice of District Court’s Denial. The district
clerk must immediately notify the parties and the
court of appeals when the district court does any of
the following:
(A) denies a motion to proceed on appeal
in forma pauperis;
(B) certifies that the appeal is not taken in
good faith; or
(C) finds that the party is not otherwise
entitled to proceed in forma pauperis.
(5) Motion in the Court of Appeals. A party may
file a motion to proceed on appeal in forma pauperis
in the court of appeals within 30 days after service
of the notice prescribed in Rule 24(a)(4). The motion
must include a copy of the affidavit filed in the dis-
trict court and the district court’s statement of rea-
sons for its action. If no affidavit was filed in the
district court, the party must include the affidavit
prescribed by Rule 24(a)(1).
Fed. R. App. P. 24(a)(4), (5).
[2] All circuits considering this issue have concluded that
Rule 24 allows appellate consideration of in forma pauperis
appeals notwithstanding a district court’s certification that the
O’NEAL v. PRICE 8685
appeal was not taken in good faith. See Rolland v. Prime-
source Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007);
Owens v. Keeling, 461 F.3d 763, 773-76 (6th Cir. 2006);
Walker v. O’Brien, 216 F.3d 626, 631 (7th Cir. 2000); Hen-
derson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997); Wooten
v. D.C. Metro. Police Dep’t, 129 F.3d 206, 207 (D.C. Cir.
1997); Baugh v. Taylor, 117 F.3d 197, 200-02 (5th Cir. 1997).
However, courts have adopted different rationales for this
conclusion. The Sixth Circuit held that Rule 24(a)(5) conflicts
with § 1915(a)(3), but that the Rules Enabling Act, 28 U.S.C.
§ 2072(b),3 requires courts to follow Rule 24(a)(5) notwith-
standing this conflict. See Owens, 461 F.3d at 774-75. The
Fifth Circuit, on the other hand, held that Rule 24(a)(5) and
§ 1915(a)(3) do not necessarily conflict, and can be inter-
preted to allow courts to comply with both provisions. See
Baugh, 117 F.3d at 200-02.
[3] We agree with the Fifth Circuit that § 1915(a)(3) and
Rule 24(a) can be read harmoniously. Although a litigant is
not entitled to proceed in forma pauperis on appeal when a
district court has entered a certification under § 1915(a)(3),
the litigant may challenge that certification by filing a motion
in this court pursuant to Rule 24(a)(5). See Fed. R. App. P. 24
advisory committee notes (“The final paragraph [of subsec-
tion (a)] establishes a subsequent motion in the court of
appeals, rather than an appeal from the order of denial or from
the certification of lack of good faith, as the proper procedure
3
28 U.S.C. § 2072 states:
(a) The Supreme Court shall have the power to prescribe general
rules of practice and procedure and rules of evidence for cases in
the United States district courts (including proceedings before
magistrate judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substan-
tive right. All laws in conflict with such rules shall be of no fur-
ther force or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final
for the purposes of appeal under section 1291 of this title.
8686 O’NEAL v. PRICE
for calling in question the correctness of the action of the dis-
trict court.”). If upon review of the record we determine that
the district court erred in making a § 1915(a)(3) certification,
we may vacate the district court’s certification, grant the pris-
oner leave to take an appeal in forma pauperis, and construe
the prisoner’s motion as a timely notice of appeal. See 28
U.S.C. § 2106; see also Javor v. Brown, 295 F.2d 60, 61 (9th
Cir. 1961) (interpreting pre-PLRA § 1915(a) to stand for the
proposition that “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken
in good faith unless the certificate is first set aside”); Williams
v. Heinze, 271 F.2d 308, 309 (9th Cir. 1959) (same).
[4] Our prior order in this case noted that “[o]ur review of
the record indicates that appellant is entitled to in forma
pauperis status for this appeal.” Accordingly, we construe this
prior order as vacating the district court’s certification that
O’Neal’s appeal was not taken in good faith. Once this certifi-
cation had been vacated, there was no barrier to O’Neal’s
appeal, and therefore § 1915(a)(3) poses no bar to our consid-
eration of O’Neal’s claim on the merits.
III
[5] We next turn to the question whether O’Neal’s prior
actions constitute strikes. The procedure for plaintiffs pro-
ceeding in forma pauperis is different from the procedure for
ordinary litigants:
In most civil actions, the submission and filing of a
complaint are simultaneous events. That is not the
case when a prisoner submits a complaint with an
application to proceed in forma pauperis, where
there is normally a gap in time between the submis-
sion of the complaint and its filing.
O’NEAL v. PRICE 8687
Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006).
After a prisoner applies for in forma pauperis status and
lodges a complaint with the district court, the district court
screens the complaint and determines whether it contains cog-
nizable claims. If not, the district court must dismiss the com-
plaint. Id.; see also 28 U.S.C. § 1915A.4 In practice (as
occurred in Schelage and CSP), the district court may style its
disposition of complaints dismissed for a reason specified in
§ 1915A as a denial of a prisoner’s application to file the
action without prepayment of the filing fee. However,
§ 1915A itself refers only to dismissals of cases after the
screening process, and does not recognize any independent
process relating to in forma pauperis applications. The com-
plaint is filed only after the district court identifies cognizable
claims. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir.
2004).
O’Neal contends that he does not have three strikes under
the plain language of § 1915(g). As noted above, if a prisoner
has “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,” such an action counts as a strike. 28 U.S.C.
§ 1915(g). O’Neal claims he had not “brought” an action in
4
28 U.S.C. § 1915A states, in pertinent part:
(a) Screening.— The court shall review, before docketing, if fea-
sible or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress from
a governmental entity or officer or employee of a governmental
entity.
(b) Grounds for Dismissal.— On review, the court shall iden-
tify cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
8688 O’NEAL v. PRICE
Schelage and CSP, nor were his actions “dismissed,” because
he merely filed applications for in forma pauperis status
which were subsequently denied. Price, who bears the initial
burden of proving each strike, see Andrews, 398 F.3d at 1120,
contends that O’Neal “brought” Schelage and CSP for pur-
poses of § 1915(g) when O’Neal submitted his complaints to
the district court, and that the actions were “dismissed” when
the district courts disposed of the cases. We will consider
each of these issues in turn.
A
The word “brought” is not defined in the PLRA. However,
in construing a related provision of the PLRA, we held that
actions are “brought” for purposes of 42 U.S.C. § 1997e(a)5
“ ‘when the complaint is tendered to the district clerk,’ and
not when it is subsequently filed.” Vaden, 449 F.3d at 1050
(quoting Ford, 362 F.3d at 400). Noting that requiring plain-
tiffs to exhaust their claims administratively before submitting
them for the court’s consideration furthers Congress’s goal of
“reduc[ing] the quantity and improv[ing] the quality of pris-
oner suits,” we concluded that a prisoner has “brought” a
complaint when the prisoner submits it to the court. Id. (quot-
ing Porter v. Nussle, 534 U.S. 516, 524-25 (2002)).
[6] Vaden’s construction of the term “brought” is equally
applicable to § 1915(g). As the Supreme Court has noted,
under its “normal rule of statutory construction . . . identical
words used in different parts of the same act are intended to
have the same meaning.” Gustafson v. Alloyd Co., 513 U.S.
561, 570 (1995) (internal quotation marks omitted). More-
over, just as in Vaden, construing “brought” in § 1915(g) to
5
42 U.S.C. § 1997e(a) states that:
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.
O’NEAL v. PRICE 8689
mean “submitted to the court” furthers Congress’s intent to
screen out frivolous complaints by precluding prisoners from
submitting an endless stream of frivolous in forma pauperis
complaints.6 Therefore, we conclude that a plaintiff has
“brought” an action for the purposes of § 1915(g) when he
submits a complaint and request to proceed in forma pauperis
to the court.
[7] In this case, O’Neal submitted to the court a complaint
and request for in forma pauperis status in both Schelage and
CSP. We conclude that these actions were “brought” within
the meaning of § 1915(g).
B
[8] As with the word “brought,” the PLRA does not define
the word “dismissed.” However, reading the word “dis-
missed” in § 1915(g) in the context of “the language and
design of the statute as a whole,” K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988), we conclude that the district
court has “dismissed” the prisoner’s case for purposes of
§ 1915(g) when the court denies the prisoner’s application to
file the action without prepayment of the filing fee on the
ground that the complaint is frivolous, malicious or fails to
state a claim, and thereupon terminates the complaint.
6
Although Andrews stated in passing that “when challenging a prison-
er’s [in forma pauperis] status, the defendants must produce documentary
evidence that allows the district court to conclude that the plaintiff has
filed at least three prior actions that were dismissed because they were
frivolous, malicious, or failed to state a claim,” 398 F.3d at 1120 (internal
quotation marks omitted), we do not read this statement as ruling on the
question whether an in forma pauperis claim must be filed in order to be
“brought” for purposes of § 1915(g). Statements “made casually and with-
out analysis,” which do not address issues brought to the attention of the
court, do not constitute precedent. United States v. Johnson, 256 F.3d 895,
915 (9th Cir. 2001) (en banc) (Kozinski, J., concurring); see also Webster
v. Fall, 266 U.S. 507, 511 (1925).
8690 O’NEAL v. PRICE
The PLRA details a court’s obligation to dismiss a plain-
tiff’s in forma pauperis complaint in three separate but inter-
related provisions, 28 U.S.C. § 1915A, 28 U.S.C.
§ 1915(e)(2), and 42 U.S.C. § 1997e(c). See Lopez v. Smith,
203 F.3d 1122, 1126 & n.7 (9th Cir. 2000) (en banc). Under
§ 1915A, a district court must, if possible, review “before
docketing” a prisoner’s complaint against “a governmental
entity or officer or employee of a governmental entity,” and
the court must dismiss the complaint if it is “frivolous, mali-
cious, or fails to state a claim upon which relief may be grant-
ed,” or “seeks monetary relief from a defendant who is
immune from such relief.” In practice, when the prisoner is
proceeding in forma pauperis, the district court conducts the
screening process contemplated by § 1915A when a prisoner
submits a complaint along with an in forma pauperis applica-
tion. See Vaden, 449 F.3d at 1050. Section 1915A applies
whether or not the prisoner’s claim is brought in forma
pauperis.
Under § 1915(e)(2)(B), a district court must dismiss a pris-
oner’s in forma pauperis case “at any time” if the court deter-
mines that the action is (i) “frivolous or malicious”; (ii) “fails
to state a claim on which relief may be granted”; or (iii)
“seeks monetary relief against a defendant who is immune
from such relief.” See Lopez, 203 F.3d at 1127 (“It is . . . clear
that section 1915(e) not only permits but requires a district
court to dismiss an in forma pauperis complaint that fails to
state a claim.”).
Under § 1997e(c), a district court must “on its own motion
or on the motion of a party” dismiss a prisoner’s action
“brought with respect to prison conditions . . . if the court is
satisfied that the action is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary
relief from a defendant who is immune from such relief.”7
7
In full, 42 U.S.C. § 1997e(c) states:
O’NEAL v. PRICE 8691
Section 1997e(c) also applies whether or not the prisoner’s
claim is brought in forma pauperis.
[9] Read together, these provisions require a district court
to dismiss an in forma pauperis complaint when it determines
that the complaint meets the criteria set forth in 28 U.S.C.
§ 1915A, 28 U.S.C. § 1915(e)(2)(B), or 42 U.S.C. § 1997e(c).
Because these statutes impose a mandatory duty, we construe
a district court’s termination of an in forma pauperis com-
plaint during the screening process for a reason enumerated in
§ 1915A, § 1915(e)(2)(B), or § 1997e(c) as a dismissal pursu-
ant to the applicable section. The district court’s use of alter-
native terminology does not change this conclusion. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 986-87 (9th Cir.
1999) (adopting the flexible view that no “particular formali-
ties are necessary for an order that serves as the basis of [an
involuntary] dismissal”). Accordingly, we hold that when a
district court disposes of an in forma pauperis complaint “on
the grounds that [the claim] is frivolous, malicious, or fails to
state a claim upon which relief may be granted,” such a com-
plaint is “dismissed” for purposes of § 1915(g) even if the dis-
trict court styles such dismissal as denial of the prisoner’s
application to file the action without prepayment of the full
filing fee.
(1) The court shall on its own motion or on the motion of a party
dismiss any action brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility
if the court is satisfied that the action is frivolous, malicious, fails
to state a claim upon which relief can be granted, or seeks mone-
tary relief from a defendant who is immune from such relief.
(2) In the event that a claim is, on its face, frivolous, malicious,
fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant who is immune from such
relief, the court may dismiss the underlying claim without first
requiring the exhaustion of administrative remedies.
8692 O’NEAL v. PRICE
This interpretation of the screening process follows natu-
rally from the text of the PLRA. Moreover, it is consistent
with the analysis in Vaden. If the prisoner “brings” a com-
plaint by submitting it to the district court, then logically the
disposition of that complaint constitutes a “dismissal.” See
Vaden, 449 F.3d at 1050. This interpretation is also consistent
with Congress’s intent to conserve judicial resources by
authorizing district courts to dismiss nonmeritorious prisoner
complaints at an early stage. Id.; see also Lopez, 203 F.3d at
1130 (“Section 1915(e)(2)(B)(ii) . . . allows a district court to
dismiss, sua sponte and prior to service of process, a com-
plaint that fails to state a claim, a power courts did not have
prior to enactment of the PLRA.”); Ford, 362 F.3d at 399-400
(“A prisoner’s civil action may be dismissed under
§ 1915(e)(2) or § 1915A before any fees have been paid, and
thus before ‘filing’ occurs.”).
Snider v. Melindez, 199 F.3d 108 (2d Cir. 1999), relied on
by O’Neal, is not to the contrary. In that case, the Second Cir-
cuit stated that although § 1997e(c) requires the court to dis-
miss a prisoner’s complaint sua sponte “if the court is
satisfied that the action is frivolous, malicious, or fails to state
a claim upon which relief can be granted,” § 1997e(c) does
not permit a sua sponte dismissal for failure to exhaust admin-
istrative remedies.8 Snider, 199 F.3d at 111. Nor could the dis-
trict court rely upon its inherent authority to dismiss the
complaint summarily on those grounds, because the court
could not properly determine whether administrative remedies
had been exhausted without hearing from the prisoner. Id. at
113. However, Snider held that it would be proper for the dis-
trict court to dismiss an action sua sponte for reasons enumer-
ated in § 1997e(c), and it would not be “bad practice” to
dismiss the complaint without notice and an opportunity to be
8
42 U.S.C. § 1997e(c)(1) also provides for dismissals for claims that
seek monetary relief from a defendant who is immune from such relief.
That provision of § 1997e(c)(1) was irrelevant to the court’s reasoning in
Snider.
O’NEAL v. PRICE 8693
heard if it was “unmistakably clear that the court lacks juris-
diction, or that the complaint lacks merit or is otherwise
defective.” Id.
[10] The dissent raises two arguments as to why Schelage
and CSP were not “dismissed” within the meaning of 28
U.S.C. § 1915(g). Relying primarily on Denton v. Hernandez,
504 U.S. 25, 34 (1992), the dissent first argues that Schelage
and CSP cannot be strikes for purposes of § 1915(g) because
O’Neal was not precluded in either case from re-filing a paid
complaint. Dissent at 8698-99. Neither Denton nor the plain
language of § 1915 supports this conclusion. Denton held that
a dismissal under the pre-PLRA version of § 1915 “is not a
dismissal on the merits,” and therefore would “not prejudice
the filing of a paid complaint making the same allegations.”
504 U.S. at 34. However, Denton did not suggest that a dis-
missal under pre-PLRA § 1915(d) was something less than a
genuine dismissal. Because § 1915(g) of the current PLRA
does not distinguish between dismissals with and without
prejudice, Denton does not detract from the conclusion that a
dismissal without prejudice may count as a strike. See also
Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (“[A]
dismissal without prejudice counts as a strike, so long as the
dismissal is made because the action is frivolous, malicious,
or fails to state a claim.”).9 Nor does anything in the plain lan-
9
In holding that failure to exhaust administrative remedies as required
by § 1997e(a) does not constitute a strike for purposes of § 1915(g), the
Second Circuit stated that § 1915(g) was intended to apply to “nonmeritor-
ious suits dismissed with prejudice, not suits dismissed without prejudice
for failure to comply with a procedural prerequisite.” Snider, 199 F.3d at
111; see also Tafari v. Hues, 473 F.3d 440, 442-44 (2d Cir. 2007) (holding
that dismissal of a premature appeal for lack of jurisdiction does not con-
stitute a strike under § 1915(g)). We understand these cases to hold that
actions dismissed for procedural defects are not necessarily strikes under
§ 1915(g), though they may constitute strikes under certain circumstances.
See Tafari, 473 F.3d at 444 (“We do not intend to foreclose the possibility
that an appeal that is jurisdictionally defective because it is premature may
not also be frivolous on the merits.”). The Second Circuit has not held that
8694 O’NEAL v. PRICE
guage of § 1915(g) distinguish between actions dismissed “on
the merits” and actions dismissed pursuant to the PLRA’s
screening provisions. We decline to read into the statute an
additional requirement not enacted by Congress. Therefore,
the analysis of whether the dismissals of Schelage and CSP
were “dismissal[s] on the merits” that “prejudice[d] the filing
of a paid complaint making the same allegations,” Denton,
504 U.S. at 34, is irrelevant to the question whether Schelage
and CSP were “dismissed” for purposes of § 1915(g).
Second, the dissent argues that filing an in forma pauperis
application is distinguishable from initiating an action and
that, as a result, the dismissal of an in forma pauperis applica-
tion does not dismiss the underlying action. This argument is
incompatible with Vaden. As the dissent itself acknowledges,
dissent at 8698, Vaden directs the conclusion that an in forma
pauperis action is “brought” for purposes of § 1915(g) when
the complaint and in forma pauperis application are submitted
to the district court. Once we have determined that the pris-
oner has “brought” an action (not just submitted an applica-
tion), the court must dismiss the entire action (not just
terminate the application); otherwise, the action “brought” by
the prisoner could continue on the court’s docket in perpetu-
ity. The dissent cites cases noting a difference between a dis-
trict court’s dismissal of an action and its dismissal of a
complaint for purposes of determining whether the district
court’s order is final and appealable. See WMX Techs., Inc. v.
Miller, 104 F.3d 1133, 1135-36 (9th Cir. 1997) (en banc);
Montes v. United States, 37 F.3d 1347, 1350 (9th Cir. 1994);
Martinez v. Flores, 299 F.2d 888, 889 (9th Cir. 1962). Even
in this context, the distinction between actions and complaints
a suit dismissed without prejudice can never constitute a strike, and the
plain language of § 1915(g) does not support such an interpretation. If
Congress had intended to limit strikes to dismissals with prejudice, it
could have said so. See United States v. Miller, 151 F.3d 957, 960 (9th Cir.
1998).
O’NEAL v. PRICE 8695
may be irrelevant. See, e.g., WMX Techs., 104 F.3d at 1135
(indicating that dismissal of a complaint may be an appealable
final decision if the plaintiff files a written notice of intent not
to file an amended complaint). More to the point, any distinc-
tion we have made between complaints and actions for pur-
poses of identifying appealable final orders is not relevant to
the question whether Schelage and CSP are strikes.
Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005) is
equally inapposite. In that case, we considered the require-
ment in 42 U.S.C. § 1997e(a) that a prisoner exhaust all avail-
able administrative remedies before bringing an action with
respect to prison conditions, and held that where a prisoner’s
complaint contains both exhausted and unexhausted claims, a
district court may dismiss only the unexhausted claims under
specified circumstances. Id. at 1175-76. Such circumstances
are not present here. Indeed, Lira acknowledges that where
(as here) the district court dismisses an entire action rather
than hold onto exhausted claims, such a dismissal may count
as a strike. Id. at 1170 & n.7.
[11] In light of this analysis, we must reject O’Neal’s claim
that Schelage and CSP were not “dismissed” within the mean-
ing of 28 U.S.C. § 1915(g). The district court disposed of both
in forma pauperis complaints during the screening process
mandated by 28 U.S.C. § 1915A, 28 U.S.C. § 1915(e)(2), and
42 U.S.C. § 1997e(c). In order to determine that these actions
did not qualify for in forma pauperis status, the district court
necessarily reviewed the complaints and made an assessment
of their merits. The fact that the district court did not use the
word “dismiss” in its disposition of these actions does not
alter our analysis.
C
[12] We must also reject O’Neal’s claim that Parriott did
not constitute a strike because it had not been dismissed for
one of the reasons enumerated in § 1915(g). In Parriott, the
8696 O’NEAL v. PRICE
district court dismissed O’Neal’s complaint both for failure to
exhaust and for failure “to state a substantive claim for the
alleged deprivation of his medicine.” It is clear from the mag-
istrate judge’s reasoning (which was adopted by the district
court) that he considered O’Neal’s failure to state a claim to
be a fully sufficient condition for his recommendation for a
dismissal with prejudice. Therefore, the dismissal of this
action was also a strike.
IV
[13] In conclusion, because Schelage and CSP were both
“brought” and “dismissed” for purposes of 28 U.S.C.
§ 1915(g), we must reject O’Neal’s argument that the district
court erred in holding that these two actions were strikes. We
also reject O’Neal’s argument that Parriott did not constitute
a strike. Accordingly, we affirm the district court’s dismissal
of O’Neal’s claim on the ground that he struck out under
§ 1915(g).
AFFIRMED.
THOMAS, Circuit Judge, concurring in part and dissenting in
part:
I join the majority’s decision that we have jurisdiction to
consider O’Neal’s appeal even though the district court certi-
fied that the appeal was not taken in good faith. Additionally,
I join the majority’s decision that O’Neal v. Parriott, Civ. No.
99-8370 (C.D. Cal.), constituted a “strike” under the Prisoner
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g),
because that case was dismissed for failure to state a claim.
However, I must respectfully dissent from the majority’s
holding that the denial of an application to proceed in forma
pauperis constitutes a strike. Thus, I disagree that O’Neal v.
O’NEAL v. PRICE 8697
Schelage, No. 94-4594 (C.D. Cal.) and O’Neal v. Cal. State
Prison, No. 00-8414 (C.D. Cal.) constituted strikes under 28
U.S.C. § 1915g.
I
As T. S. Eliot instructed:
So first, your memory I’ll jog
And say: A CAT IS NOT A DOG.1
Just as a cat is not a dog, a simple “application” to have fil-
ing fees waived does not constitute a formal civil “action” in
federal court. Thus, the denial of an application to proceed in
forma pauperis does not constitute a dismissal of the underly-
ing action. As such, it cannot constitute a strike under the
PLRA.
A civil “action” is a well understood term of art under the
Federal Rules of Civil Procedure.
[A]n “action” is the formal and ordinary means by
which parties seek legal and/or equitable relief
before a court of law through the filing of a formal
complaint, triggering the full array of legal, proce-
dural, and evidentiary rules governing the process by
which a court adjudicates the merits of a dispute.
S.E.C. v. McCarthy, 322 F.3d 650, 657 (9th Cir. 2003).
In contrast, as we noted:
“Applications,” however, are different. An “applica-
1
T. S. Eliot, “The Ad-Dressing of Cats,” Old Possum’s Book of Practi-
cal Cats, 53 (Harcourt Brace Jovanovich 1982) (1939) (emphasis in origi-
nal); Andrew Lloyd Weber and T. S. Eliot, “The Ad-Dressing of Cats,”
Cats (1982 Original Broadway Cast), (Decca Broadway 1993).
8698 O’NEAL v. PRICE
tion” is merely a “motion.” Black’s Law Dictionary
96 (7th ed.1999). A “motion” is defined as, “[a] writ-
ten or oral application requesting a court to make a
specified ruling or order.” Id. at 1031. An “applica-
tion” is not a “lawsuit” or a “formal complaint.” It
does not necessarily include or trigger “all the formal
proceedings in a court of justice” as does the filing
of an “action.” See id. at 28.
Id.
Section 1915(g) prohibits prisoners from bringing in forma
pauperis actions or appeals “if the prisoner has, on 3 or more
prior occasions, . . . brought an action or appeal in a court of
the United States that was dismissed . . .” 28 U.S.C. § 1915(g)
(emphasis added). A “strike,” then, requires two steps: (1) an
action must be brought and (2) that action must be subse-
quently dismissed. I agree that our case law establishes that
a prisoner brings an action when he files an in forma pauperis
application and tenders the complaint to the district court.
However, I do not agree that the underlying action is dis-
missed when a district court denies the prisoner leave to pro-
ceed in forma pauperis.
The Supreme Court has distinguished between a “dismiss-
al” of an application for leave to proceed in forma pauperis
and a dismissal of the underlying action. In Denton v. Her-
nandez, the Court held that “[b]ecause a § 1915(d) dismissal
is not a dismissal on the merits, but rather an exercise of the
court’s discretion under the in forma pauperis statute, the dis-
missal does not prejudice the filing of a paid complaint mak-
ing the same allegations.” 504 U.S. 25, 34 (1992). Section
1915(g) defines a “strike” as an “action . . . that was dis-
missed . . . .” The best interpretation is that this language
refers to a “dismissal on the merits.”
Such an interpretation is not contrary to the meaning of
“brought an action” in Section 1915(g). While the action may
O’NEAL v. PRICE 8699
be brought when the complaint is tendered to the court clerk,
the action constitutes the underlying claim or claims, not the
application to proceed in forma pauperis. This section is con-
sistent with Federal Rule of Civil Procedure 3, which pro-
vides: “A civil action is commenced by filing a complaint
with the court.”
Thus, when the court denies the prisoner leave to proceed
in forma pauperis, all the court has “dismissed” is the in
forma pauperis application; the court has not dismissed the
underlying action. Indeed, the court cannot dismiss the under-
lying action at that point, because as the Supreme Court held
in Denton, “the dismissal [of an in forma pauperis applica-
tion] does not prejudice the filing of a paid complaint making
the same allegations.” 504 U.S. at 34. See also Billman v.
Indiana Dept. of Corrections, 56 F.3d 785, 787 (7th Cir.
1995) (“all that section 1915(d) authorizes the district court to
do if it determines that the suit is frivolous is to deny leave
to proceed in forma pauperis.”).2 In short, the prisoner has the
right to proceed with the action regardless of the court’s rul-
ing on his in forma pauperis application. If the prisoner elects
to continue the litigation, the question of a dismissal on the
pleadings will be evaluated under Rule 12 of the Federal
Rules of Civil Procedure.3
2
In fact, the district court may not dismiss an action for failure to pay
the fees if the prisoner has no funds with which to pay them. See 28
U.S.C. § 1915(b)(4); see also Taylor v. Delatoore, 281 F.3d 844, 850 (9th
Cir. 2002) (district court cannot dismiss in forma pauperis prisoner’s case
based on his failure to pay initial fee when his failure to pay is due to lack
of funds available to him when payment is ordered).
3
Even when in forma pauperis status is granted, the PLRA requires the
complaint to be dismissed prior to service of process if it is frivolous or
malicious, fails to state a claim, or seeks monetary damages from defen-
dants who are immune from suit. See 28 U.S.C. § 1915(e)(2); see also
Franklin v. Murphy, 745 F.2d 1221, 1226-27 (9th Cir. 1984). If the gov-
ernment’s theory that action on in forma pauperis applications constituted
binding actions on the merits is carried to its logical conclusion, then the
district court’s grant of in forma paueris status necessarily would preclude
a later dismissal of the case as frivolous or malicious. That result clearly
would be contrary to the statute. The PLRA recognizes the distinction
between denials and grants of in forma pauperis applications and dismiss-
als of the action.
8700 O’NEAL v. PRICE
This analysis comports with distinctions our court has
drawn between the dismissal of an action and dismissal of a
claim. See, e.g., WMX Technologies, Inc. v. Miller, 104 F.3d
1133, 1135-36 (9th Cir. 1997) (en banc) (holding that an order
dismissing a complaint with leave to amend is not a final
appealable order and distinguishing such an order from an
order dismissing the action); Montes v. United States, 37 F.3d
1347, 1350 (9th Cir. 1994) (“[T]his Court has traditionally
drawn a distinction between the dismissal of the complaint
and the dismissal of the underlying action.”); Martinez v. Flo-
res, 299 F.2d 888, 889 (9th Cir. 1962) (“Twice the district
court has dismissed the complaint, but never the action. There
is a difference.”).
We have identified such distinctions specifically in the con-
text of the PLRA:
As a preliminary matter, we take note of the crucial
distinction between dismissing an action and dis-
missing a complaint. Dismissal of an entire action
constitutes a final judgment by a district court. In
contrast, when a district court dismisses a complaint
for failure to state a claim, granting leave to amend
the defective complaint is routine.
Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (internal
citations omitted).
In Lira we clarified that this distinction holds in the context
of prisoner civil rights litigation under the PLRA. Id. at 1169-
70. Further, we noted that one of the consequences, under the
PLRA, of a court dismissing an entire action, as opposed to
merely dismissing a claim, is that dismissal of an action may
constitute a “strike” under § 1915(g). Id. In other words, dis-
missal of a claim does not constitute a strike.
The illogic of equating denials of in forma pauperis appli-
cations with dismissals of civil actions is demonstrated by a
O’NEAL v. PRICE 8701
simple hypothetical. Suppose a prisoner is denied leave to file
in forma pauperis by the district court, but elects to pay the
filing fee and proceed. Under the government’s thesis (as
acknowledged at oral argument), if his complaint is subse-
quently dismissed, then he will have received two strikes for
filing one action. He will have earned his first strike when the
court denied his application to proceed in forma pauperis, and
his second when the court dismissed his complaint. But his
opportunities for striking out completely in one action con-
tinue. He can seek to proceed in forma pauperis on appeal. If
his request were denied, he presumably would earn another
strike. Given that the defendants often are not even served if
the case is dismissed at a screening phase, the pro se prisoner
will have unwittingly hit into an unassisted triple play.
Another hypothetical underscores the point. Suppose a pris-
oner is denied in forma pauperis status, elects to pay the fees
and proceed, and then successfully obtains a judgment against
a defendant. Under the government’s theory, he then will
have earned a strike even though he was ultimately granted
judgment on the merits in his favor.
If Congress had intended denials of in forma pauperis
applications to constitute strikes, it could have said so specifi-
cally. Instead, it chose to use the word “action,” which has a
clearly understood meaning in the law. As we have noted in
other contexts, the words “application” and “action” are not
synonymous. McCarthy, 322 F.3d at 657.
II
The PLRA has the laudable goal of screening frivolous
prisoner lawsuits early in the litigation and deterring prisoners
from filing multiple frivolous actions. The PLRA and the
power of courts to enter pre-filing orders against vexatious lit-
igants provide ample means of controlling frivolous and mali-
cious prisoner litigation without distorting our fundamental
concept of what constitutes a civil action. A denial of leave
8702 O’NEAL v. PRICE
to proceed in forma pauperis does not result in the entry of
a judgment dismissing the action. It has no effect on whether
the prisoner can proceed with the action. It has no res judicata
effect. Therefore, a denial of leave to proceed in forma
pauperis cannot constitute a “strike” under § 1915g.
For these reasons, I must respectfully dissent.