Kasey F. Hoffmann, Plaintiff-Appellant,
L. Pulido, Correctional Officer at CSATF-SP; C. Smith, Correctional Lieutenant at CSATF-SP, Defendants-Appellees, California Department of Corrections and Rehabilitation, Appellee-Intervenor.
and Submitted May 17, 2019 San Francisco, California
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
Ali (argued), Roderick & Solange, Washington, D.C., for
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.
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.
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.
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.
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).
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.
CHRISTEN, CIRCUIT JUDGE.
Hoffmann, a state prisoner, challenges the district
court's order dismissing his § 1983 lawsuit claiming
unlawful retaliation in violation of the First
Amendment. 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 ...