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Hoffmann v. Pulido

United States Court of Appeals, Ninth Circuit

July 8, 2019

Kasey F. Hoffmann, Plaintiff-Appellant,
v.
L. Pulido, Correctional Officer at CSATF-SP; C. Smith, Correctional Lieutenant at CSATF-SP, Defendants-Appellees, California Department of Corrections and Rehabilitation, Appellee-Intervenor.

          Argued and Submitted May 17, 2019 San Francisco, California

          Appeal from the United States District Court D.C. No. 1:18-cv-00209-AWI-SKO for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

          Amir Ali (argued), Roderick & Solange, Washington, D.C., for Plaintiff-Appellant.

          Misha D. Igra (argued), Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Appellee-Intervenor.

          Before: J. Clifford Wallace, Sandra S. Ikuta, and Morgan Christen, Circuit Judges.

         SUMMARY[*]

         Prisoner Civil Rights

         The panel vacated the district court's order dismissing a prisoner 42 U.S.C. § 1983 lawsuit for failure to pay the required filing fee, and remanded.

         The district court determined that at least three of plaintiff's prior actions had been dismissed for failure to state a claim or because they were frivolous. Accordingly, the court reasoned that the Prison Litigation Act's three-strikes provision, 28 U.S.C. § 1915(g), barred plaintiff from bringing an action in forma pauperis.

         The panel held that only two of the three identified prior dismissals qualified as strikes, and therefore, on the basis of the record, plaintiff was not disqualified from filing an action in forma pauperis.

         The panel first rejected plaintiff's argument that pursuant to Williams v. King, 875 F.3d 500, 504-05 (9th Cir. 2017), the dismissal of one of the prior actions did not qualify as a strike because in that lawsuit only plaintiff had consented to proceed before the magistrate judge and therefore the magistrate judge lacked the authority to dismiss the complaint. The panel held that raising that challenge in this subsequent action amounted to a collateral attack on the judgment, and that the previous judgment did not fall into one of the narrowly circumscribed circumstances that would permit that judgment to be declared void pursuant to Federal Rule of Civil Procedure 60(b)(4).

         The panel next held that the dismissal of another of plaintiff's previous actions, in part for lack of standing, did not properly qualify as a strike. The panel held that even if certain claims in a prisoner's lawsuit are dismissed as frivolous or malicious, or for failure to state a claim, that dismissal will not qualify as a strike if there are other claims that are either not dismissed or are dismissed for different, non-enumerated reasons. The panel held that because a dismissal for lack of standing is a dismissal for lack of subject-matter jurisdiction, the case as a whole was not dismissed on the grounds enumerated in § 1915(g). Accordingly, the panel concluded that the dismissal of that action did not qualify as a strike. The panel vacated the district court's order dismissing plaintiff's case, and remanded for proceedings consistent with its opinion.

          OPINION

          CHRISTEN, CIRCUIT JUDGE.

         Kasey Hoffmann, a state prisoner, challenges the district court's order dismissing his § 1983 lawsuit claiming unlawful retaliation in violation of the First Amendment.[1] Hoffmann's complaint was dismissed for failure to pay the required filing fee. The district court determined that at least three of Hoffmann's prior actions had been dismissed for failure to state a claim or because they were frivolous. Accordingly, the court reasoned that 28 U.S.C. § 1915(g) barred Hoffmann from bringing an action in forma pauperis. Because we determine that one of Hoffmann's previous actions was not ...


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