O'Neal v. Price
| Decision Date | 14 July 2008 |
| Docket Number | No. 06-15591.,06-15591. |
| Citation | 531 F.3d 1146 |
| Parties | Louis Butler O'NEAL, Plaintiff-Appellant, v. PRICE, CDC Staff Counselor, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Adam Grace, Law Office of Adam Grace, Stockton, CA, for the plaintiff-appellant.
Megan O'Carroll, Deputy Attorney General, Sacramento, CA (argued); Barbara A. Morris, Deputy Attorney General, Sacramento, CA, for the defendant-appellee.
Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Senior Judge, Presiding. D.C. No. CV-02-01824-LKK.
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
The Prison Litigation Reform Act of 1995 ("PLRA"), 110 Stat. 1321-71, 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, malicious, or failed to state a claim. See 28 U.S.C. § 1915(g)1. 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.
On October 15, 2002, Louis O'Neal, a prisoner incarcerated in Folsom State Prison, filed a complaint in federal district 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 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 California 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 supported by the following information. For Schelage, the record included a district court order denying O'Neal leave to proceed in forma pauperis for five reasons: 1) "No federal jurisdiction"; 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 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 remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (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:
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 recommended that the matter be dismissed, stating:
Plaintiff has failed to exhaust administrative remedies as required. If this were the only apparent shortcoming, 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 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 circumstances, Plaintiff should not be given a fifth chance to cure the deficiencies. McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir.1996) (). Therefore, the Complaint 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 relevant 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).
Before reaching O'Neal's arguments, we must first determine whether we have jurisdiction to consider O'Neal's 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 procedural 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 district court and the district court's statement of reasons 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).
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 appeal was not taken in good faith. See Rolland v. Primesource 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); Henderson 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) notwithstanding 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 interpreted to allow courts to comply with both provisions. See Baugh, 117 F.3d at 200-02.
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 subsection (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 for calling in question the correctness of the action of the district 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...
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