El-Shaddai v. Zamora

• Decision Date: 12 August 2016
• Docket Number: No. 13-56104,13-56104
• Citation: 833 F.3d 1036
• Parties: Adonai El-Shaddai, aka James R. Wilkerson, Plaintiff-Appellant, v. L. D. Zamora, Chief CCHCS in individual capacity and official capacity; P. Pak, MD in individual capacity and official capacity, C. Wu, MD Physician and Surgeon in individual capacity and official capacity, Defendants, and Jeffery Wang, MD Chief Medical Executive in individual capacity and official capacity, Teresa Macias, Chief Executive Officer in individual capacity and official capacity; Glenn Thiel, DO PhD in individual capacity and official capacity; C. McCabe, MD in individual capacity and official capacity; Nguyen, MD in individual capacity and official capacity; Edgar Clark, MD Secretary Pain Committee in individual capacity and official capacity; Ruff, PhD Psychologist in individual capacity and official capacity; Burr, Physical Therapist in individual capacity and official capacity; A. Adams, MD Chief Physician and Surgeon in individual capacity and official capacity; P. Shank, Chief Executive Officer in individual capacity and official capacity; P. Finander, MD Chief Medical Executive in individual capacity and official capacity; J. Fitter, MD in individual capacity and official capacity; W. Olukamni, Physician Assistant in individual capacity and official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

833 F.3d 1036

Adonai El-Shaddai, aka James R. Wilkerson, Plaintiff-Appellant,

v. L. D. Zamora, Chief CCHCS in individual capacity and official capacity; P. Pak, MD in individual capacity and official capacity, C. Wu, MD Physician and Surgeon in individual capacity and official capacity, Defendants,andJeffery Wang, MD Chief Medical Executive in individual capacity and official capacity, Teresa Macias, Chief Executive Officer in individual capacity and official capacity; Glenn Thiel, DO PhD in individual capacity and official capacity; C. McCabe, MD in individual capacity and official capacity; Nguyen, MD in individual capacity and official capacity; Edgar Clark, MD Secretary Pain Committee in individual capacity and official capacity; Ruff, PhD Psychologist in individual capacity and official capacity; Burr, Physical Therapist in individual capacity and official capacity; A. Adams, MD Chief Physician and Surgeon in individual capacity and official capacity; P. Shank, Chief Executive Officer in individual capacity and official capacity; P. Finander, MD Chief Medical Executive in individual capacity and official capacity; J. Fitter, MD in individual capacity and official capacity; W. Olukamni, Physician Assistant in individual capacity and official capacity, Defendants-Appellees.

No. 13-56104

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2016 Pasadena, California

Filed August 12, 2016

Michael Shipley (argued), Kirkland & Ellis LLP, Los Angeles, California, for Plaintiff-Appellant.

Misha D. Igra (argued) and Thomas S. Patterson, Supervising Deputy Attorneys General; Jonathan L. Wolff, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, Sacramento, California; for Defendant-Appellee Jeffery Wang.

No appearance for Defendants-Appellees L. D. Zamora, P. Pak, C. Wu, Teresa Macias, Glenn Thiel, C. McCabe, Nguyen, Edgar Clark, Ruff, Burr, A. Adams, P. Shank, P. Finander, J. Fitter, and W. Olukamni.

Before: JEROME FARRIS, CARLOS T. BEA, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

While incarcerated in California, Adonai El-Shaddai (previously known as James Wilkerson), filed at least eleven lawsuits against prison officials prior to filing this case. On appeal, we must decide whether these previous cases amount to at least three “strikes” under the Prison Litigation Reform Act of 1995 (PLRA), 28 U.S.C. § 1915(g), such that El-Shaddai is barred from proceeding in forma pauperis (IFP) in this and future cases. Because we conclude that only one of the prior actions was “dismissed on the grounds that it [was] frivolous, malicious, or fail[ed] to state a claim,” id. , we hold that El-Shaddai has not incurred three strikes, and we reverse the contrary decision of the district court.

FACTS AND PROCEDURAL BACKGROUND

El-Shaddai is a prisoner incarcerated in California. In 1976, before his incarceration, he was injured in a car accident. As a result of his accident, El-Shaddai suffers from chronic back pain and related health issues. Since at least 2007, he has received a variety of accommodations for his conditions, including a bottom bunk, a back brace, orthopedic shoes, special bedding, and lifting restrictions.

In April 2011, El-Shaddai requested that the prison begin treating his pain with medical marijuana, glucosamine chondroitin, and Osteo Bi-Flex, consistent with his religious belief in African Holistic Healing. His request was denied, and his bottom-bunk accommodation was also revoked. El-Shaddai brought suit against prison officials, claiming deliberate indifference to his medical needs because they failed to grant his requested course of medical treatment and revoked his accommodation.

El-Shaddai submitted his complaint in this case in conjunction with a request to proceed IFP. The district court denied the motion, concluding that the “three-strikes” rule in the PLRA prohibited El-Shaddai from proceeding IFP because he had brought at least three actions that were “dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). The district court cited two cases that it categorized as strikes under the PLRA, and noted that one of those cases, Wilkerson v. Prunty , Civ. No. 96–CV–122B (S.D. Cal. Oct. 28, 1997) (Prunty I ) listed several other strikes. The district court also found that El-Shaddai had not shown that he was entitled to the “imminent danger” exception to the three-strikes rule. See 28 U.S.C. § 1915(g). In response to El-Shaddai's motion for reconsideration, the district court explicitly found three additional cases to be strikes. Counting all of the cases cited in the district court's two orders, as well as all of the cases identified as strikes in Prunty I , there are eleven potential strikes that the district court may have relied on in finding El-Shaddai ineligible for IFP status. El-Shaddai timely appealed the denial of his motion for reconsideration.¹

ANALYSIS

The PLRA provides that “[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis ] 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). “Not all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner's IFP status only when, after careful evaluation of the order dismissing an action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious, or failed to state a claim.” Andrews v. King , 398 F.3d 1113, 1121 (9th Cir. 2005).

As a general matter, when we review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal “rang the PLRA bells of frivolous, malicious, or failure to state a claim.” Blakely v. Wards , 738 F.3d 607, 615 (4th Cir. 2013) ; see also Andrews , 398 F.3d at 1121 ; Byrd v. Shannon , 715 F.3d 117, 126 (3d Cir. 2013) ; Thompson v. Drug Enf't Admin. , 492 F.3d 428, 436 (D.C. Cir. 2007).

El-Shaddai concedes that he has one strike. In Popke , the district court dismissed the case on the grounds that El-Shaddai failed to state a claim for relief under 42 U.S.C. § 1983. This appeal addresses whether the ten other cases were dismissed on one of the grounds enumerated in the statute. Those cases were disposed of on several different procedural postures: through denials of motions to proceed IFP, rulings that El-Shaddai had failed to exhaust his administrative remedies, grants of summary judgment in favor of the defendants, appellate affirmances, and dismissals for filing actions that should have been brought as habeas petitions. We address each category of dismissal in turn.

I. Denial of IFP Status

In four of the cases that are potential strikes, El-Shaddai was denied IFP status on the basis that he had already accumulated three strikes. After he failed to pay the required filing fee, the cases were dismissed. We hold that this ground for dismissal does not count as a strike. Where a dismissal is based solely on a finding that the plaintiff has previously incurred at least three strikes, without any additional finding that the instant action is itself frivolous, malicious, or fails to state a claim, the dismissal does not count as an additional strike. This is so because having incurred three strikes, standing alone, is not an enumerated ground for creating an additional strike under the language of § 1915(g).

We have previously held 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 complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of the prisoner's application to file the action without prepayment of the full filing fee.” O'Neal v. Price , 531 F.3d 1146, 1153 (9th Cir. 2008) (alteration in original). Thus, a dismissal predicated on a denial of IFP status may be strike-worthy. Id. But that does not mean that all dismissals predicated on denials of IFP status are strikes; to constitute a strike, the denial of IFP status must be based on one of the enumerated grounds in the statute. Where IFP status is denied solely on the ground that the plaintiff has accumulated too many strikes, the denial of IFP status and subsequent dismissal of the case do not count as a strike for purposes of § 1915(g). Rather, denying IFP status simply because the plaintiff has too many strikes is unrelated to whether the action before the court is frivolous, malicious, or fails to state a claim. That is because the three-strikes rule applies regardless of whether the plaintiff's current claim is well-pleaded or brought in good faith. See 28 U.S.C. § 1915(g) (providing that “[i]n no event shall a prisoner” proceed IFP if he has incurred three or more strikes, unless he meets the “imminent danger” exception (emphasis added)).

Four of the dismissals that the district court identified as strikes against El-Shaddai follow this fact pattern. In Prunty I , the district court dismissed El-Shaddai's case on two alternative grounds,² one of which was that “Plaintiff is a vexatious litigant not entitled to in forma pauperis status pursuant to 28 U.S.C. § 1915(g).” The district court did not rule that Prunty I itself was frivolous, malicious or failed to state a claim.

El-Shaddai appealed from Prunty I in Wilkerson v. Prunty , No. 98-55154 (9th Cir. Apr. 2,...