Moore v. Maricopa County Sheriff's Office

• Decision Date: 13 September 2011
• Docket Number: No. 10–16736.,10–16736.
• Parties: Larry Lee MOORE, Plaintiff–Appellant,v.MARICOPA COUNTY SHERIFF'S OFFICE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

657 F.3d 890

11 Cal. Daily Op. Serv. 11,715

2011 Daily Journal D.A.R. 13,929

Larry Lee MOORE, Plaintiff–Appellant,

v.MARICOPA COUNTY SHERIFF'S OFFICE, Defendant–Appellee.

No. 10–16736.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 8, 2011.Filed Sept. 13, 2011.

Steven H. Goldblatt, Director, Katherine Bushman, Supervising Attorney, and Adam Bellotti, Certified Law Student, Georgetown University Law Center, Appellate Litigation Program, Washington, D.C., for the plaintiff-appellant.J. Scott Dutcher, Deputy County Attorney, Maricopa County Office of General Litigation Services, Phoenix, AZ, for the defendant-appellee.Appeal from the United States District Court for the District of Arizona, G. Murray Snow, District Judge, Presiding. D.C. No. 2:10–cv–01495–GMS–JRI.Before: DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, and CARLOS T. BEA, Circuit Judges.

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 district 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 persons, not just prisoners, may seek IFP status. Id. at 1052 n. 1.

But a prisoner faces an additional hurdle. In a statutory provision “nicknamed the ‘three-strikes rule,’ ” id. at 1049, Congress 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 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.

28 U.S.C. § 1915(g).

Here, the district court held that four of Plaintiff's previously 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

While this appeal was pending, Plaintiff was released from jail on parole. Accordingly, Plaintiff is no longer a “prisoner” 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

Defendant concedes that the underlying action—an action for damages resulting from alleged mistreatment—is 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 Plaintiff 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

Plaintiff asserts that filing a new action would not preserve 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 argument. 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 United States Internal Revenue Service 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 litigate 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.

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 jurisdiction does not qualify as a “strike” under § 1915(g). Second, Plaintiff argues that, because two of the four dismissals identified by the district court were for lack of subject-matter jurisdiction, the district court erred in denying him IFP status. We review de novo “[t]he district court's interpretation and application 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)

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.

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 proceeding in good faith and with legitimate claims.”).

“Equally clearly, a dismissal for lack of jurisdiction is not the same as a dismissal for failure to state a claim: in enacting section 1915(g), Congress chose to mirror the language 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 Barren 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.⁴See Atl. Sounding Co. v. Townsend, ––– U.S. ––––, 129 S.Ct. 2561, 2573, 174 L.Ed.2d 382 (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 jurisdiction. 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 second 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.

In the first case, the district court's order stated:

III. Lack of Jurisdiction

Federal courts have limited jurisdiction, and limitations on the court's jurisdiction must neither be disregarded nor evaded. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 [98 S.Ct. 2396, 57 L.Ed.2d 274] (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 ...