Andrews v. King
| Decision Date | 11 February 2005 |
| Docket Number | No. 02-17440.,02-17440. |
| Citation | 398 F.3d 1113 |
| Parties | Antolin ANDREWS, Plaintiff-Appellant, United States of America, Intervenor, v. V.R. KING, Appeals Coordinator; S. Cervantes; T. Dickinson; Ed Alamedia, Director of CDC; McPhereson, Correctional Officer; Fields, Lt., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rohit K. Singla, Munger, Tolles & Olson LLP, San Francisco, CA, for the plaintiff-appellant.
Maria G. Chan, Deputy Attorney General for the State of California, Sacramento, CA, for the defendants-appellees.
Barbara L. Herwig and Stephanie R. Marcus, Civil Division, Department of Justice, Washington, D.C., for the intervenor.
Appeal from the United States District Court for the Eastern District of California; Garland E. Burrell, District Judge, Presiding. D.C. No. CV-01-02316-GEB(GGH).
Before: FERNANDEZ, PAEZ, and RAWLINSON, Circuit Judges.
Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.
The opinion filed on February 11, 2005 is amended to include Judge Fernandez's concurring and dissenting opinion.
Appellant Antolin Andrews, an inmate in California State Prison-Solano ("CSP-Solano"), filed a pro se complaint under 42 U.S.C. § 1983 challenging the way in which the prison officials administered the process for resolving prisoner grievances. After the district court granted Andrews' motion to proceed in forma pauperis ("IFP"), the defendants filed a motion for summary judgment, arguing that Andrews was not entitled to proceed IFP under the "three strikes" provision of 28 U.S.C. § 1915(g).1 The district court granted the defendants' motion and ultimately dismissed Andrews' complaint without prejudice, ruling that Andrews had failed to demonstrate that he did not have three strikes under § 1915(g).
Whether the burden of establishing the existence or nonexistence of three strikes rests with the defendant or with the prisoner-plaintiff is an issue of first impression in this circuit. We hold that when the defendant challenges a prisoner's right to proceed IFP, the defendant bears the burden of producing sufficient evidence to establish that § 1915(g) bars the plaintiff's IFP status. Once the defendant has made out a prima facie case, the burden shifts to the plaintiff to persuade the court that § 1915(g) does not apply. Because here the defendants did not meet their initial burden, we reverse the district court's dismissal of Andrews' complaint and remand for further proceedings.
Andrews is a state inmate incarcerated in CSP-Solano. Seeking damages and injunctive relief, Andrews filed a pro se civil rights action under 42 U.S.C. § 1983 against the defendants V.R. King, S. Cervantes, T. Dickinson and Lt. McPhereson, prison officials at CSP-Solano, and Ed Alamedia, the Director of the California Department of Corrections (collectively "the State defendants"). Andrews alleged that the State defendants administer the prisoner grievance administrative process at CSP-Solano to effectively deny prisoners access to the federal courts by making it "almost impossible" to exhaust the prison's administrative remedies.2 The district court initially granted Andrews' request to proceed IFP.
The State defendants did not respond to Andrews' complaint. Instead, they filed a motion for summary judgment under Fed.R.Civ.P. 56(d). In their motion, the State defendants argued that Andrews had acquired three strikes and, as proof of the existence of those strikes, they attached records from the federal courts' Public Access to Court Electronic Records ("PACER") system showing the docket records for twenty-two actions in which Andrews was the plaintiff and the cases had been dismissed. The State defendants also attached an order from the Superior Court of Los Angeles County that deemed Andrews a vexatious litigant. The State defendants did not provide the district court with copies of the underlying dismissal orders or present any other evidence regarding the reasons for the dismissals.
Andrews opposed the motion, stating that he had not filed three or more actions that were frivolous, malicious or that failed to state a claim within the meaning of 28 U.S.C. § 1915(g). He further argued that the PACER records attached to the State defendants' motion were insufficient to establish the "three strikes" necessary to deny him IFP status under § 1915(g).
The Magistrate Judge issued an Order and Findings and Recommendations recommending that the district court grant the State defendants' motion for summary judgment. The Findings and Recommendations determined that plaintiffs bear the burden of proving their qualification for IFP status. The Magistrate Judge found that plaintiffs bear the initial production burden, stating: "it is up to plaintiffs to describe their previous litigations against different defendants; present defendants should not have to perform this research." The Findings and Recommendations also determined that it was Andrews' burden to negate the defendants'"prima facie showing that the number of federal suits filed disqualified [him] from proceeding IFP." Thus, the Magistrate Judge recommended that because Andrews had failed to rebut the State defendants' showing regarding his litigation history, he was not entitled to proceed IFP in filing his 42 U.S.C. § 1983 action.
The Magistrate Judge then reasoned that even if the burden were not on Andrews to prove that he had fewer than three strikes, "the record shows sufficient strikes to warrant IFP disqualification."3 The Magistrate Judge concluded, however, that dismissed habeas petitions do not constitute strikes under 28 U.S.C. § 1915(g). Nonetheless, the Magistrate Judge determined that Andrews had at least three dismissals that constituted strikes within the meaning of § 1915(g), and recommended that Andrews' case be dismissed without prejudice.
Andrews filed objections to the Magistrate Judge's Findings and Recommendations in which he argued that, under the plain text of the statute, only cases dismissed as frivolous or malicious or for failure to state a claim count as strikes and that the State defendants had not met their burden of showing that he had three or more such strikes. The State defendants also filed objections to the Findings and Recommendations, in which they objected to the recommendation that petitions for writs of habeas corpus do not count as "strikes" for purposes of § 1915(g).
The district court adopted the Magistrate Judge's Findings and Recommendations in full and dismissed Andrews' action without prejudice. This appeal followed.
The State defendants initially contend that we lack jurisdiction to review the district court's order dismissing Andrews' action without prejudice "because this is a matter in abatement" under 28 U.S.C. § 2105.4 The State defendants argue that the revocation of Andrews' IFP status does not address the merits of his claims under 42 U.S.C. § 1983 and therefore, it "fits within the definition of a `matter in abatement.'"5
We disagree. Although the defendants styled their complaint as one for summary judgment under Rule 56(d), they are in fact seeking to vacate the district court's order permitting Andrews to proceed IFP. The denial of a motion to proceed IFP is appealable as a final judgment under 28 U.S.C. § 1291. See Roberts v. United States Dist. Ct. for the N. Dist., 339 U.S. 844, 845, 70 S.Ct. 954, 94 L.Ed. 1326 (1950) (); Lipscomb v. U.S., 301 F.2d 905, 905 (9th Cir.1962) ().
Moreover, even if we considered the defendants' motion as one for summary judgment, this is not a "matter in abatement" because our review of the dismissal of a prisoner's claim on the ground that he should not proceed IFP involves a decision on the merits. That is, Andrews would not otherwise have the opportunity to address whether any of the prior cases constitute a "strike" under § 1915(g) or to correct the district court's allegedly erroneous denial of IFP status.
Accordingly, we reject the State's challenge to our jurisdiction and hold that we have jurisdiction to review the district court order dismissing Andrews' case.
Andrews challenges the district court's determination that because he had acquired three strikes within the meaning of § 1915(g) he could not proceed IFP. We review "de novo a grant of summary judgment and must determine whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc) (citation omitted).6 The district court's interpretation and application of § 1915(g) is also subject to de novo review. See Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir.1997).
To determine whether the district court erred in dismissing Andrews' complaint, we must address whether Andrews or the State defendants bore the burden of production to show that Andrews was not entitled to proceed IFP under the PLRA's three strikes provision.
Although we have not previously addressed this particular provision of the PLRA, we addressed a similar question in the context of the PLRA's exhaustion requirement. See 42 U.S.C. § 1997e(a).7 In Wyatt v. Terhune, we concluded that the PLRA's exhaustion requirement creates an affirmative defense that must be raised and proved by the defendant. See 315 F.3d 1108, 1117-18 (9th Cir.2003). In so deciding, we reasoned that we would not impose a heightened pleading requirement where Congress...
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