Richey v. Dahne

• Decision Date: 08 December 2015
• Docket Number: No. 12–36045.,12–36045.
• Citation: 807 F.3d 1202
• Parties: Thomas W.S. RICHEY, Plaintiff–Appellant, v. D. DAHNE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

807 F.3d 1202

Thomas W.S. RICHEY, Plaintiff–Appellant,

v.D. DAHNE, Defendant–Appellee.

No. 12–36045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 16, 2015.

Filed Dec. 8, 2015.

Edward A. Piper, Stoel Rives LLP, Portland, OR, for Plaintiff–Appellant.

Haley Beach (argued), Assistant Attorney General, Corrections Division; Robert W. Ferguson, Attorney General, Washington State Office of the Attorney General, Olympia, WA, for Defendant–Appellee.

Appeal from the United States District Court for the Western District of Washington, Benjamin H. Settle, District Judge, Presiding. D.C. No. 3:12–cv–05060–BHS.

Before: WILLIAM A. FLETCHER and RONALD M. GOULD, Circuit Judges, and DAVID A. EZRA,^* District Judge.

OPINION

GOULD, Circuit Judge:

Thomas W.S. Richey appeals from the district court's dismissal of his civil rights action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). A motions panel granted Richey's motion for in forma pauperis (IFP) status on appeal. Dahne later filed a motion to revoke Richey's IFP status under the "three strikes" provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). Dahne's motion raises the question whether a prisoner may maintain IFP status when appealing the dismissal of his third-strike lawsuit, an issue left open by the Supreme Court's recent decision in Coleman v. Tollefson, ––– U.S. ––––, 135 S.Ct. 1759, 1764–65, 191 L.Ed.2d 803 (2015). Because we conclude that the PLRA does not bar a prisoner from receiving IFP status on appeal of his third-strike dismissal, we deny Dahne's motion.¹

I

As an inmate at the Stafford Creek Corrections Center, Richey filed a grievance on November 11, 2011, alleging that a guard denied him his "right to yard, a shower, and clean underwear."² Richey alleged that he did not know the guard's name and that he described her "accurately" as an "extremely obese Hispanic female guard." The grievance was returned to Richey with a note to "Rewrite- appropriately. Just stick to the issue of what happened, when, who was involved." Richey submitted a revised grievance on November 17, 2011, containing similar allegations and similar references to the guard's weight, with the words "who," "when," and "what happened" inserted into the narrative. The grievance was again returned to him with an order to "Rewrite as directed. Hispanic Female is adiquit [sic]. Extremely Obese is unnecessary and inappropriate."

Rather than rewrite the grievance, Richey wrote a kite³ to the grievance coordinator on November 28, 2011, asking for clarification of the word "adiquit" and explaining that his description of the guard's weight was "necessary and appropriate in helping him identify her," as he did not know her name. He asked the coordinator "not to punish [him] by rejecting [his] grievance because [the coordinator] disagreed with [his] choice of language." When Richey did not receive a response, he wrote another kite on December 7 asking "ARE YOU GOING TO PROCESS MY PROPERLY SUBMITTED GRIEVANCE OR WHAT? I'M NOT REWRITING IT SO DO YOUR JOB AND PROCESS IT." Dahne responded in writing, "No, due to your decision not to rewrite as requested your grievance has been administraitevly [sic] withdrawn."

Seeking damages, Richey sued Dahne pro se for violating his First Amendment right "to redress grievances and to be free of retaliation" and "for violating [his] freedom of speech." The district court dismissed Richey's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, ruling that Richey "provide[d] no authority for the proposition that insulting a prison guard is protected conduct" and "failed to allege that his right to redress his grievances ha[d] been chilled by the official's refusal to accept his offensive grievance." The district court also revoked Richey's IFP status at that time.

Richey filed a timely notice of appeal and moved for IFP status on appeal. A motions panel granted the motion, stating that its "review of the record indicates that appellant is entitled to proceed in forma pauperis" under 28 U.S.C. § 1915(a). After Richey was appointed pro bono counsel and briefing was completed, Dahne moved to revoke Richey's IFP status under the "three strikes" provision of the PLRA. See 28 U.S.C. § 1915(g).

II

A litigant generally qualifies for IFP status if he "is unable to pay [filing] fees or give security therefor." 28 U.S.C.1915(a)(1). Congress passed the Prison Litigation Reform Act in 1996 to "reduce the quantity and improve the quality of prisoner suits," instituting several reforms to prevent prisoners from filing meritless claims in the federal court system. Jones v. Bock, 549 U.S. 199, 203–04, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (quoting Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) ). One reform was the introduction of a "three strikes" rule that bars prisoner litigants from receiving IFP status in a civil action or appeal

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).

Dahne argues that Richey does not qualify for IFP status because Richey received four strikes before filing this appeal on December 17, 2012: dismissal of the complaint in Richey v. Thaut, No. C11–5680 (W.D.Wash. Mar. 26, 2012) (Thaut I ); dismissal of another civil complaint, Richey v. Thaut, No. C11–5755 (W.D.Wash. May 16, 2012) (Thaut II ); dismissal of the appeal in that case, Richey v. Thaut, No. 12–35632 (9th Cir. Nov. 15, 2012) (Thaut III ); and the district court's dismissal of the complaint in this case. "[O]nce a prisoner has been placed on notice of the potential disqualification under § 1915(g) by either the district court or the defendant, the prisoner bears the ultimate burden of persuading the court that § 1915(g) does not preclude IFP status." Andrews v. King, 398 F.3d 1113, 1120 (9th Cir.2005).

We review de novo the "interpretation and application" of the PLRA's three strikes provision. Id. at 1118. This includes de novo review of whether a district court correctly issued a strike under the PLRA in a prior case. See id. at 1120–21 (declining to accept district court's characterization of a prior dismissal as a strike); Belanus v. Clark, 796 F.3d 1021, 1032 & n. 3 (9th Cir.2015) (Fernandez, J., concurring in part and dissenting in part). Reviewing the dismissals that Dahne claims constitute "strikes" against Richey, we conclude that Richey has not received "three strikes" and is thus entitled to IFP status.

A. Richey v. Thaut, No. C11–5680 (W.D.Wash. Mar. 26, 2012) (Thaut I )

Thaut I was a civil complaint containing allegations similar to this case: Richey submitted a grievance for being denied his right to shower by an "extremely obese female Hispanic guard," but when Thaut asked Richey to rewrite the grievance without "objectionable language," Richey sued instead. The magistrate judge determined that Richey did not exhaust his administrative remedies because he "simply failed to follow the prescribed procedure and failed to amend his grievance when he was asked to do so," recommending dismissal without prejudice and "that the dismissal count as a strike." The magistrate judge reasoned that Richey's failure to exhaust rendered his claim "frivolous" because Richey was "very familiar with the prison grievance system and the requirements for pleading a civil rights action." The district court summarily adopted the magistrate judge's recommendation.

On appeal, we affirmed the dismissal of Thaut I, see Richey v. Thaut, 509 Fed.Appx. 659 (9th Cir.2013), but the panel did not follow the magistrate judge's reasoning.

Instead, we relied on an alternate argument, holding that "[t]he district court did not clearly err in finding that Richey was required to appeal the non-grievability determination to the grievance program manager and failed to do so."⁴ Id. at 660. That we declined to follow the magistrate judge's reasoning raises a question about its correctness; notably, we did not assess a strike on appeal.

Additionally, when the magistrate judge here—incidentally the same magistrate judge as in Thaut I —was presented with a similar fact pattern, she did not rely on the same reasoning as she did in Thaut I. Instead, she recommended dismissal on exhaustion grounds for reasons similar to our decision affirming Thaut I on appeal: that Richey "did nothing to advance his complaint that Defendant Dahne had refused to ‘process his grievance for no good reason.’ " She also characterized this suit as "frivolous" and recommended it count as a strike. The district court did not adopt her recommendation, however—the district judge expressed hesitation about the correctness of the magistrate judge's ruling⁵ and requested additional briefing on the exhaustion issue. Dahne then withdrew his motion to dismiss for failure to exhaust administrative remedies.

Because subsequent judges—including the magistrate judge herself in a later case—did not follow the reasoning by which the magistrate judge dismissed Thaut I for non-exhaustion, we conclude that reasonable judges may differ about the merits of her conclusion. The dismissal in Thaut I was not a strike for frivolousness. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (defining frivolousness under the IFP statute as having no legal issues "arguable on their merits") (quoting Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ).

Nor can the dismissal in Thaut I be considered a strike for "fail [ure] to state a claim upon which relief may be granted," 28 U.S.C. § 1915(g), i.e., dismissal under Fed.R.Civ.P. 12(b)(6). See Andrews, 398 F.3d at 1121 (equating § 1915(g) with...