Eric Knapp v. Hogan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC CHARLES RODNEY KNAPP, No. 11-17512

Plaintiff-Appellant,

D.C. No.

v. 2:05-cv-02520-

KJM-CMK

HOGAN, C.O.; R. POE, C.O.; J.

ETHEREDGE, C.O.; T. GUTIERREZ,

C.O.; MARY LATTIMORE, WARDEN, OPINION

C.O.; LINDA WARREN, C.O.; J.

WHITTLE, C.O.; STEVE WHITE; C.

BROWN; DANZIGER; HEIN; KAISER;

KANIPE; KEELAND; KING; SAUCEDA;

SMITH; - ALI; FOWLER; MESA;

NELSON; O’CONNOR; STEWART;

VASQUEZ; CAMPBELL; CARILLO;

CHERRY; DOHERTY; GENTILE;

HENDERSON; KLINEFELTER; OLSEN;

SEINWERTH; D. BROWN; KUDLATA;

LAGUNA; LINCOLN; RENDON;

REYES; SUBIA; MYNIER; BOYD;

KERNAN; SILVA; HICKMAN;

KNOWLES; EMIGH; GRANNIS;

HANSEN; HURDLE; MELCHING;

PRESLEY; RIANDA; TAYLOR; URIBE;

M. BROWN; BROYLES;

CLEVENSTINE; HENSLEY; KNIPP;

LEEWORTHY; MCNEIL; REAVES;

ROBINSON; STANLEY,

Defendants-Appellees.

2 KNAPP V. HOGAN

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted

November 6, 2013—San Francisco, California

Filed December 26, 2013

Before: Jerome Farris, Ferdinand F. Fernandez,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Farris

SUMMARY*

Prison Litigation Reform Act

The panel dismissed a California state prisoner’s

42 U.S.C. § 1983 appeal because the prisoner was

disqualified from proceeding in forma pauperis under the

Prison Litigation Reform Act for having three prior strikes.

The panel held that repeated and knowing violations of

Federal Rule of Civil Procedure 8(a)’s “short and plain

statement” requirement count as strikes for purposes of the

Prison Litigation Reform Act, 28 U.S.C. § 1915(g), when the

opportunity to correct the pleadings was afforded and there

was no modification within a reasonable time.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KNAPP V. HOGAN 3

COUNSEL

Mark T. Roche (argued), Baker & McKenzie LLP, San

Francisco, California; Erin Tanner and Angela Vigil, Baker

& McKenzie LLP, Dallas, Texas, for Plaintiff-Appellant.

Jaime Ganson (argued), Deputy Attorney General, Office of

the California Attorney General, Sacramento, California, for

Defendants-Appellees J. Etheredge, Linda Warren, T.

Gutierrez, R. Poe, Hogan, and Mary Lattimore.

Peter C. Zilaff (argued), Longyear, O’Dea & Lavra, LLP,

Sacramento, California, for Defendant-Appellee J. Whittle.

Damon M. Thurston (argued) and Geoffrey A. Beaty, Rankin,

Sproat, Mires, Beaty & Reynolds, Oakland, California, for

Defendant-Appellee Steve White.

OPINION

FARRIS, Senior Circuit Judge:

Knapp is a California state prisoner who alleges various

civil rights claims against prison and other state officials

under 42 U.S.C. § 1983. The general theory behind these

claims is that prison officials began a long course of

retaliatory conduct, of which the governmental actors were

aware, because of Knapp’s mother’s website—a website

dedicated to exposing prison corruption and fighting for

inmates’ rights. The district court granted summary judgment

for the defendants. Knapp appealed. The defendants now

move to dismiss, arguing that Knapp is disqualified from

proceeding in forma pauperis.

4 KNAPP V. HOGAN

Under the Prison Litigation Reform Act, a prisoner may

not proceed in forma pauperis after having three prior actions

dismissed for certain enumerated reasons (these are called

“strikes”). 28 U.S.C. § 1915(g). Knapp has filed many civil

actions, but in contention here are three district court cases

and two appeals. All three of the trial court actions resulted in

dismissal under Federal Rule of Civil Procedure 8(a):

Knapp’s pleadings were dismissed for being too long and

incoherent. See Knapp v. Knowles, No. 2:03-cv-00394 (E.D.

Cal. 2004); Knapp v. Knowles, No. 2:06-cv-00453 (E.D. Cal.

2007); Knapp v. Harrison, No. 06-cv-07702 (C.D. Cal. 2008).

Knapp appealed two of these dismissals, and this Court

denied relief after receiving certifications from the district

court that the appeals were “not in good faith.” Knapp v.

Knowles, No. 04-16701 (9th Cir. 2005); Knapp v. Harrison,

No. 08-56629 (9th Cir. 2009). At issue is whether at least

three of these dismissals counted as a strike under the Prison

Litigation Reform Act, thus disqualifying Knapp from in

forma pauperis status. We have jurisdiction pursuant to

28 U.S.C. § 1291. We hold that repeated and knowing

violations of Federal Rule of Civil Procedure 8(a)’s “short

and plain statement” requirement are strikes as “fail[ures] to

state a claim,” 28 U.S.C. § 1915(g), when the opportunity to

correct the pleadings has been afforded and there has been no

modification within a reasonable time.

I.

A.

The Prison Litigation Reform Act limits the ability of an

inmate to file an action in forma pauperis:

KNAPP V. HOGAN 5

In no event shall a prisoner bring a civil action

or appeal a judgment in a civil action or

proceeding under this section if the prisoner

has, on 3 or more prior occasions…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.

28 U.S.C. § 1915(g). We have interpreted the first two forms

of dismissal—“frivolous” and “malicious”—according to

their plain meaning. Andrews v. King, 398 F.3d 1113, 1121

(9th Cir. 2005). A claim is “frivolous” when it is without

“basis in law or fact,” and “malicious” when it is “filed with

the intention or desire to harm another.” Id. We have

interpreted the final form of dismissal under the statute,

“fail[ure] to state a claim upon which relief may be granted,”

to be essentially synonymous with a Federal Rule of Civil

Procedure 12(b)(6) dismissal. See Moore v. Maricopa Cnty.

Sheriff’s Office, 657 F.3d 890, 893 (9th Cir. 2011) (citing past

cases) (“Congress chose to mirror the language of Federal

Rule of Civil Procedure 12(b)(6)”).

The question in this case is how Rule 8(a) dismissals

comport with the Prison Litigation Reform Act’s strike

requirements. Rule 8 requires that a pleading “must contain”

a “short and plain statement” of the grounds for jurisdiction

and the claim, as well as a demand for relief sought. Fed. R.

Civ. P. 8(a). Violations of this Rule warrant dismissal, but

there are multiple ways that it can be violated. One well-

known type of violation is when a pleading says too

little—the baseline threshold of factual and legal allegations

required was the central issue in the Iqbal line of cases. See,

e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Rule is

6 KNAPP V. HOGAN

also violated, though, when a pleading says too much.

Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d

1047, 1058 (9th Cir. 2011) (“[W]e have never held—and we

know of no authority supporting the proposition—that a

pleading may be of unlimited length and opacity. Our cases

instruct otherwise.”) (citing cases); see also McHenry v.

Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996) (affirming a

dismissal under Rule 8, and recognizing that “[p]rolix,

confusing complaints such as the ones plaintiffs filed in this

case impose unfair burdens on litigants and judges”).1

It is well settled that, in determining a § 1915(g) “strike,”

the reviewing court looks to the dismissing court’s action and

the reasons underlying it. Andrews, 398 F.3d at 1121 (holding

that reviewing courts should make “careful evaluation” of

“the orders dismissing those actions and other relevant

information,” and should “consider[] the underlying court

orders [and] mak[e] an independent assessment”). This means

that the procedural mechanism or Rule by which the

dismissal is accomplished, while informative, is not

dispositive. It cannot be true, then, that a Rule 8(a) dismissal

is categorically included or excluded from counting as a

§ 1915(g) “strike.” Each dismissal under the Rule must be

assessed independently: did the Rule 8(a) dismissal result

from the court’s appraisal of the merits of the case (i.e., was

it “frivolous” or did it “fail to state a claim”), or did the

dismissal result from an appraisal of the prisoner’s state of

mind (i.e., “malicious”)? It is best practice for a district court

to expressly indicate when a dismissal falls into one of the

three categories.

1

Of course, the plain text of the Rule suggests that there are other

possible ways that it could be violated—say, a failure to demand any

relief. This also shows that Rule 8(a) and Rule 12(b)(6) can overlap.

KNAPP V. HOGAN 7

B.

The burden of establishing that three strikes have accrued

is on the party challenging the prisoner’s right to proceed in

forma pauperis. Andrews, 398 F.3d at 1116. If a prima facie

case is made out, the burden then shifts to the prisoner-

plaintiff to rebut it. Id. If the record is not determinative,

remand to the district court is appropriate. Id. Here, the

defendants argue that Knapp has accumulated five strikes,

and point to five prior dismissals of actions or appeals—three

from the district court, and two dismissed appeals.

The dismissed appeals clearly count as strikes because

they relied on district court findings that the appeal “[was]

not taken in good faith,”2 Knapp v. Knowles, No. 04-16701

(9th Cir. 2005); Knapp v. Harrison, No. 08-56629 (9th Cir.

2009), and lack of “good faith” in this context has been held

to be equivalent to a finding of frivolity. Gardner v. Pogue,

558 F.2d 548, 551 (9th Cir. 1977).

The three district court dismissals are also strikes. In each

case, Knapp filed complaints that violated Rule 8(a)’s “short

and plain statement” requirement, was given leave to amend,

but nevertheless failed to correct the violation after repeated

warnings by the district court. We hold that dismissals

following the repeated violation of Rule 8(a)’s “short and

plain statement” requirement, following leave to amend, are

dismissals for failure to state a claim under § 1915(g). While

past cases have found that this type of strike is accrued by a

Rule 12(b)(6) dismissal, they do not hold that this is the only

2

Under the Prison Litigation Reform Act, IFP appeals may not be taken

if the trial court “certifies in writing that it is not taken in good faith.”

28 U.S.C.A. § 1915(a)(3).

8 KNAPP V. HOGAN

possible way. See Moore v. Maricopa Cnty. Sheriff’s Office,

657 F.3d 890, 893 (9th Cir. 2011) (citing cases). We find the

reasoning of the Seventh Circuit to be persuasive: after an

incomprehensible complaint is dismissed under Rule 8 and

the plaintiff is given, but fails, to take advantage of the leave

to amend, “the judge [is] left with [] a complaint that, being

irremediably unintelligible, [gives] rise to an inference that

the plaintiff could not state a claim.” See Paul v. Marberry,

658 F.3d 702, 705 (7th Cir. 2011). When a litigant knowingly

and repeatedly refuses to conform his pleadings to the

requirements of the Federal Rules, it is reasonable to

conclude that the litigant simply cannot state a claim.

Such a narrow expansion of the definition of “failure to

state a claim” beyond Rule 12(b)(6) dismissals is fully in

harmony with the purposes of the Prison Litigation Reform

Act. In assessing the constitutionality of § 1915(g), we

recognized that the Act’s three-strike rule “was enacted to

curtail the extraordinary costs of frivolous prisoners suits and

minimize such costs to the taxpayers.” Rodriguez v. Cook,

169 F.3d 1176, 1181 (9th Cir. 1999) (“[P]risoners file a

disproportionate number of frivolous suits…because of

‘potential gains and low opportunity costs.’… Requiring

prisoners to pay filing fees for suits will force them to go

through the same thought process non-inmates go through

before filing a suit, i.e., is filing this suit worth the costs?”

(internal citation omitted)). The animating concern was

obvious: too many prisoner lawsuits were wastes of the

courts’ valuable time. H.R. REP. NO. 104-21 (1995), at 7

(“Too many frivolous lawsuits are clogging the courts,

seriously undermining the administration of justice.”).

Complaints that are filed in repeated and knowing violation

of Federal Rule 8’s pleading requirements are a great drain on

the court system, and the reviewing court cannot be expected

KNAPP V. HOGAN 9

to “fish a gold coin from a bucket of mud.” U.S. ex rel. Garst

v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003).

Here, the district court dismissed one of Knapp’s actions

for “repeated disobedience of…Rule 8 of the Federal Rules

of Civil Procedure.” Knapp v. Knowles, No. 2:03-cv-00394

(E.D. Cal. 2004) (emphasis added). In another action, the

district court dismissed for “repeated failure to comply with

Fed. R. Civ. P. 8.” Knapp v. Knowles, No. 2:06-cv-00453

(E.D. Cal. 2007) (emphasis added). In the final case, Knapp

v. Harrison, the court’s rationale for dismissal noted that

“plaintiff has proceeded with knowledge of the pleading

requirements and that affording plaintiff a further opportunity

to state his claims in a proper manner would be a pointless

exercise.” Knapp v. Harrison, No. 06-cv-07702 (C.D. Cal.

2008). These cases were dismissed because Knapp, after

having been given numerous chances to perfect his

pleadings,“fail[ed] to state a claim.” 28 U.S.C. § 1915(g).

Knapp accrued two strikes for the Ninth Circuit

dismissals, and three additional strikes for the district court

dismissals. He has more than met the requirement for a

revocation of in forma pauperis status under the Prison

Litigation Reform Act. His appeal is DISMISSED.

DISMISSED.