Andrews v. King

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTOLIN ANDREWS, 

Plaintiff-Appellant,

UNITED STATES OF AMERICA, No. 02-17440

Intervenor, D.C. No.

v. CV-01-02316-

V. R. KING, Appeals Coordinator;  GEB(GGH)

S. CERVANTES; T. DICKINSON; ED ORDER AND

ALAMEDIA, Director of CDC; AMENDED

MCPHERESON, Correctional Officer; OPINION

FIELDS, Lt.,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued and Submitted

July 13, 2004—San Francisco, California

Filed February 11, 2005

Amended February 22, 2005

Before: Ferdinand F. Fernandez, Richard A. Paez, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Paez;

Partial Concurrence and Partial Dissent by Judge Fernandez

2051

2054 ANDREWS v. KING

COUNSEL

Rohit K. Singla, Munger, Tolles & Olson LLP, San Francisco,

California, for the plaintiff-appellant.

ANDREWS v. KING 2055

Maria G. Chan, Deputy Attorney General for the State of

Califonia, Sacramento, California, for the defendants-

appellees.

Barbara L. Herwig and Stephanie R. Marcus, Civil Division,

Department of Justice, Washington, D.C., for the intervenor.

ORDER

The opinion filed on February 11, 2005 is amended to

include Judge Fernandez’s concurring and dissenting opinion.

OPINION

PAEZ, Circuit Judge:

Appellant Antolin Andrews, an inmate in California State

Prison-Solano (“CSP-Solano”), filed a pro se complaint under

42 U.S.C. § 1983 challenging the way in which the prison

officials administered the process for resolving prisoner griev-

ances. After the district court granted Andrews’ motion to

proceed in forma pauperis (“IFP”), the defendants filed a

motion for summary judgment, arguing that Andrews was not

entitled to proceed IFP under the “three strikes” provision of

28 U.S.C. § 1915(g).1 The district court granted the defen-

1

Section 1915(g) was enacted as part of the 1996 Amendments to the

Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321,

§ 804(d) (“PLRA”) and provides that:

In no event shall a prisoner bring a civil action or appeal . . .

under this section if the prisoner has, on 3 or more 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.

2056 ANDREWS v. KING

dants’ motion and ultimately dismissed Andrews’ complaint

without prejudice, ruling that Andrews had failed to demon-

strate that he did not have three strikes under § 1915(g).

Whether the burden of establishing the existence or nonex-

istence of three strikes rests with the defendant or with the

prisoner-plaintiff is an issue of first impression in this circuit.

We hold that when the defendant challenges a prisoner’s right

to proceed IFP, the defendant bears the burden of producing

sufficient evidence to establish that § 1915(g) bars the plain-

tiff’s IFP status. Once the defendant has made out a prima

facie case, the burden shifts to the plaintiff to persuade the

court that § 1915(g) does not apply. Because here the defen-

dants did not meet their initial burden, we reverse the district

court’s dismissal of Andrews’ complaint and remand for fur-

ther proceedings.

I. Facts and Procedural History

Andrews is a state inmate incarcerated in CSP-Solano.

Seeking damages and injunctive relief, Andrews filed a pro se

civil rights action under 42 U.S.C. § 1983 against the defen-

dants V.R. King, S. Cervantes, T. Dickinson and Lt.

McPhereson, prison officials at CSP-Solano, and Ed

Alamedia, the Director of the California Department of Cor-

rections (collectively “the State defendants”). Andrews

alleged that the State defendants administer the prisoner

grievance administrative process at CSP-Solano to effectively

deny prisoners access to the federal courts by making it “al-

most impossible” to exhaust the prison’s administrative reme-

This subdivision is commonly known as the “three strikes” provision.

“Strikes” are prior cases or appeals, brought while the plaintiff was a pris-

oner, which were dismissed “on the ground that [they were] frivolous,

malicious, or fail[ ] to state a claim” are generically referred to as

“strikes.” Pursuant to § 1915(g), a prisoner with three strikes or more can-

not proceed IFP.

ANDREWS v. KING 2057

dies.2 The district court initially granted Andrews’ request to

proceed IFP.

The State defendants did not respond to Andrews’ com-

plaint. Instead, they filed a motion for summary judgment

under Fed. R. Civ. P. 56(d). In their motion, the State defen-

dants argued that Andrews had acquired three strikes and, as

proof of the existence of those strikes, they attached records

from the federal courts’ Public Access to Court Electronic

Records (“PACER”) system showing the docket records for

twenty-two actions in which Andrews was the plaintiff and

the cases had been dismissed. The State defendants also

attached an order from the Superior Court of Los Angeles

County that deemed Andrews a vexatious litigant. The State

defendants did not provide the district court with copies of the

underlying dismissal orders or present any other evidence

regarding the reasons for the dismissals.

Andrews opposed the motion, stating that he had not filed

three or more actions that were frivolous, malicious or that

failed to state a claim within the meaning of 28 U.S.C.

§ 1915(g). He further argued that the PACER records attached

to the State defendants’ motion were insufficient to establish

the “three strikes” necessary to deny him IFP status under

§ 1915(g).

The Magistrate Judge issued an Order and Findings and

Recommendations recommending that the district court grant

the State defendants’ motion for summary judgment. The

Findings and Recommendations determined that plaintiffs

bear the burden of proving their qualification for IFP status.

The Magistrate Judge found that plaintiffs bear the initial pro-

duction burden, stating: “it is up to plaintiffs to describe their

previous litigations against different defendants; present

defendants should not have to perform this research.” The

2

The PLRA requires that prisoners exhaust prison administrative reme-

dies before bringing an action in federal court. See 42 U.S.C. § 1997e(a).

2058 ANDREWS v. KING

Findings and Recommendations also determined that it was

Andrews’ burden to negate the defendants’ “prima facie

showing that the number of federal suits filed disqualified

[him] from proceeding IFP.” Thus, the Magistrate Judge rec-

ommended that because Andrews had failed to rebut the State

defendants’ showing regarding his litigation history, he was

not entitled to proceed IFP in filing his 42 U.S.C. § 1983

action.

The Magistrate Judge then reasoned that even if the burden

were not on Andrews to prove that he had fewer than three

strikes, “the record shows sufficient strikes to warrant

IFP disqualification.”3 The Magistrate Judge concluded, how-

ever, that dismissed habeas petitions do not constitute strikes

under 28 U.S.C. § 1915(g). Nonetheless, the Magistrate Judge

determined that Andrews had at least three dismissals that

constituted strikes within the meaning of § 1915(g), and rec-

ommended that Andrews’ case be dismissed without preju-

dice.

Andrews filed objections to the Magistrate Judge’s Find-

ings and Recommendations in which he argued that, under the

plain text of the statute, only cases dismissed as frivolous or

malicious or for failure to state a claim count as strikes and

that the State defendants had not met their burden of showing

that he had three or more such strikes. The State defendants

also filed objections to the Findings and Recommendations, in

which they objected to the recommendation that petitions for

writs of habeas corpus do not count as “strikes” for purposes

of § 1915(g).

3

The Magistrate Judge counted the following five cases as strikes: (1)

an appeal that was dismissed for lack of jurisdiction (Andrews v. Croker,

No. 98-55330 (9th Cir.)); (2) a case that was dismissed for failure to state

a claim (Rudder v. Vargas & Associates, No. 94-CV-67 (D.C. Cir.)); (3)

a case that was dismissed without leave to amend (Rudder v. Revitz, 93-

CV-2778 (C.D. Cal.); and (4) two other district court cases that had been

dismissed with prejudice (Rudder v. Dep’t of Justice, No. 93-CV-1913

(C.D. Cal.) and Andrews v. Croker, No. 97-CV-5333 (C.D. Cal.)).

ANDREWS v. KING 2059

The district court adopted the Magistrate Judge’s Findings

and Recommendations in full and dismissed Andrews’ action

without prejudice. This appeal followed.

II. Jurisdiction

The State defendants initially contend that we lack jurisdic-

tion to review the district court’s order dismissing Andrews’

action without prejudice “because this is a matter in abate-

ment” under 28 U.S.C. § 2105.4 The State defendants argue

that the revocation of Andrews’ IFP status does not address

the merits of his claims under 42 U.S.C. § 1983 and therefore,

it “fits within the definition of a ‘matter in abatement.’ ”5

We disagree. Although the defendants styled their com-

plaint as one for summary judgment under Rule 56(d), they

are in fact seeking to vacate the district court’s order permit-

ting Andrews to proceed IFP. The denial of a motion to pro-

ceed IFP is appealable as a final judgment under 28 U.S.C.

§ 1291. See Roberts v. United States Dist. Ct. for the N. Dist.,

339 U.S. 844, 845 (1950) (“The denial by a district judge of

a motion to proceed in forma pauperis is an appealable

order.”); Lipscomb v. U.S., 301 F.2d 905, 905 (9th Cir. 1962)

(“An order denying leave to proceed in the district court in

forma pauperis is appealable.”).

Moreover, even if we considered the defendants’ motion as

one for summary judgment, this is not a “matter in abate-

ment” because our review of the dismissal of a prisoner’s

claim on the ground that he should not proceed IFP involves

4

“One of the most commonly ignored provisions of the Judicial Code,”

15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure

§ 3903, at 139 (1992), 28 U.S.C. § 2105 provides that: “There shall be no

reversal in the Supreme Court or court of appeals for error in ruling upon

matters in abatement which do not involve jurisdiction.”

5

A “matter in abatement” is “the suspension or defeat of an action for

a reason unrelated to the merits of the claim.” Black’s Law Dictionary 3

(8th ed. 2004).

2060 ANDREWS v. KING

a decision on the merits. That is, Andrews would not other-

wise have the opportunity to address whether any of the prior

cases constitute a “strike” under § 1915(g) or to correct the

district court’s allegedly erroneous denial of IFP status.

Accordingly, we reject the State’s challenge to our jurisdic-

tion and hold that we have jurisdiction to review the district

court order dismissing Andrews’ case.

III. Defendants’ Motion for Summary Judgment

Andrews challenges the district court’s determination that

because he had acquired three strikes within the meaning of

§ 1915(g) he could not proceed IFP. We review “de novo a

grant of summary judgment and must determine whether,

viewing the evidence in the light most favorable to the non-

moving party, there are any genuine issues of material fact

and whether the district court correctly applied the relevant

substantive law.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th

Cir. 2000) (en banc) (citation omitted).6 The district court’s

interpretation and application of § 1915(g) is also subject to

de novo review. See Tierney v. Kupers, 128 F.3d 1310, 1311

(9th Cir. 1997).

6

Although the State defendants styled their motion as a motion for sum-

mary judgment under Rule 56(d), it was effectively a motion to vacate the

order allowing Andrews to proceed IFP because he was precluded from

doing so under § 1915(g). Because Andrews did not dispute the fact that

he had filed at least twenty-two lawsuits that had been dismissed and that

he had been declared a vexatious litigant, what is at stake here are the

legal consequences that flow from these undisputed facts. Thus, whether

we treat the State defendants’ motion under Rule 56(d) or a motion to

vacate makes little difference. In either circumstance, we review de novo

the district court’s interpretation of § 1915(g) and related legal conclu-

sions. See Balint v. Carson City, Nev., 180 F.3d 1047, 1050 (9th Cir.

1999); Jeff D. v. Kempthorne, 365 F.3d 844, 850-51 (9th Cir. 2004).

ANDREWS v. KING 2061

A. Burdens of Production and Persuasion

To determine whether the district court erred in dismissing

Andrews’ complaint, we must address whether Andrews or

the State defendants bore the burden of production to show

that Andrews was not entitled to proceed IFP under the

PLRA’s three strikes provision.

[1] Although we have not previously addressed this particu-

lar provision of the PLRA, we addressed a similar question in

the context of the PLRA’s exhaustion requirement. See 42

U.S.C. § 1997e(a).7 In Wyatt v. Terhune, we concluded that

the PLRA’s exhaustion requirement creates an affirmative

defense that must be raised and proved by the defendant. See

315 F.3d 1108, 1117-18 (9th Cir. 2003). In so deciding, we

reasoned that we would not impose a heightened pleading

requirement where Congress had not expressly instructed us

to do so. See id. at 1118 (citing Swierkiewicz v. Sorema, 534

U.S. 506 (2002)). Moreover, we recognized that imposing

such a requirement on prisoners “would be contrary to the lib-

eral approach we take to pleadings by pro se prisoners” and

also unrealistic, given that “prison officials are likely to have

greater legal expertise and, as important, superior access to

prison administrative records in comparison to prisoners.” Id.

at 1119.

[2] We find that our decision in Wyatt provides a helpful

paradigm for deciding which party has the burden of estab-

lishing the existence or nonexistence of three strikes under 28

U.S.C. § 1915(g). First, as in Wyatt, we do not discern in the

relevant statute an express congressional intent to place the

7

Section 1997e(a) of the PLRA states:

No action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility

until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a).

2062 ANDREWS v. KING

initial burden on the prisoner-plantiff. See Wyatt, 315 F.3d at

1118. Indeed, § 1915 explicitly details the requirements for

prisoners applying to proceed IFP, see § 1915(a)(1) & (2),

and although prisoners must demonstrate that they are not

able to pay the filing fee with an affidavit and submission of

their prison trust account records, see id., Congress did not

require prisoners to declare that § 1915(g) does not bar their

request to proceed IFP.8 Had Congress intended to require

prisoners to affirmatively show that they were not subject to

the three strikes provision, we have no doubt that it would

have included that requirement in the list of requirements

prisoners must address in order to obtain IFP status. See

Wyatt, 315 F.3d at 1118 (“Legislatures know how to indicate

. . . a pleading requirement when they want to.”).

[3] Moreover, we agree with Andrews that here, as in

Wyatt, considerations of policy and fairness militate in favor

of imposing the burden on the State defendants to produce

evidence to demonstrate that the prisoner should be denied

IFP status because he had three strikes under § 1915(g). Here,

Andrews alleged that, as a prisoner, he cannot maintain files

for each lawsuit that he has previously brought.9 Andrews also

8

Indeed, such a requirement would be difficult, if not impossible, to

meet, given that, in dismissing a prisoner’s action, the district court is not

required to determine whether the prisoner’s case is frivolous, malicious

or fails to state a claim and therefore will count as a future strike under

§ 1915(g). See e.g., Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.

1999); DeLeon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004); Wilson v. Yaklich,

148 F.3d 596, 602-03 (6th Cir. 1998); Patton v. Jefferson Corr. Cir., 136

F.3d 458, 461 (5th Cir. 1998); Lucien v. Jockish, 133 F.3d 464, 469 n.8

(7th Cir. 1998). Because district courts do “not issue these strikes one by

one, in their orders of judgment,” DeLeon, 361 F.3d at 95, most prisoners

would not be able to determine whether they have accumulated any strikes

within the meaning of § 1915(g) prior to filing an application to proceed

IFP.

9

In his current facility, Andrews represents that he is permitted only six

cubic feet of possessions—and that this is not enough space to maintain

comprehensive files. The State defendants do not challenge this represen-

tation.

ANDREWS v. KING 2063

stated that he does not have access to PACER nor can he visit

clerks’ offices to obtain relevant orders. Moreover, because he

is indigent, Andrews cannot order the relevant documents

directly from the court or pay a third-party, such as a court fil-

ing service, to obtain the records for him. The State defen-

dants do not dispute these facts. The State defendants, on the

other hand, have greater access to prison administrative

records, court documents and a host of knowledgeable attor-

neys who have represented the state prison officials in law-

suits brought by state prisoners. See Wyatt, 315 F.3d at 1119.

[4] Therefore, we hold that if defendants challenge a

prisoner-plaintiff’s IFP status, then the initial production bur-

den rests with the defendants. Thus, when challenging a pris-

oner’s IFP status, the defendants must produce documentary

evidence that allows the district court to conclude that the

plaintiff has filed at least three prior actions that were dis-

missed because they were “frivolous, malicious or fail[ed] to

state a claim.” § 1915(g). In some instances, the district court

docket records may be sufficient to show that a prior dis-

missal satisfies at least one of the criteria under § 1915(g) and

therefore counts as a strike. However, in many instances, the

docket records will not reflect the basis for the dismissal. In

these instances, the defendants may not simply rest on the fact

of dismissal. Rather, the defendants must produce court

records or other documentation that will allow the district

court to determine that a prior case was dismissed because it

was “frivolous, malicious or fail[ed] to state a claim.”

§ 1915(g).

[5] Once the defendants have met this initial burden, the

burden then shifts to the prisoner, who must attempt to rebut

the defendants’ showing by explaining why a prior dismissal

should not count as a strike. We agree with the approach

taken by our sister circuit in Evans v. Ill. Dep’t of Corrs., 150

F.3d 810, 811-12 (7th Cir. 1998). In Evans, the Seventh Cir-

cuit found that by identifying three specific examples of

potential strikes, the district court put the plaintiff on notice

2064 ANDREWS v. KING

as to what it had considered in denying his request to proceed

IFP. Id. The burden of persuasion then shifted to the plaintiff

to show that prior dismissals did not qualify as strikes. In

sum, once a prisoner has been placed on notice of the poten-

tial 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.

[6] Because the district court incorrectly determined that

Andrews bore the initial burden of producing evidence to

show that he was not disqualified under § 1915(g), and

because we find that the State defendants did not present suf-

ficient evidence regarding the prior dismissals to establish a

prima facie case of IFP disqualification under § 1915(g), we

vacate the judgment and remand for further proceedings.

B. The Meaning of a “Strike”

To provide guidance to the district court on remand, we

address the district court’s interpretation of a “strike” under

§ 1915(g). Section 1915(g) states that a prisoner may not pro-

ceed IFP “if the prisoner has, on three or more prior occa-

sions, 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 was frivolous, malicious or

fails to state a claim upon which relief could be granted.”

§ 1915(g).

In applying § 1915(g) to disqualify Andrews from proceed-

ing IFP, the district court gave an expansive interpretation of

the clause “frivolous, malicious or fails] to state a claim.”

Thus, for example, without determining that the case was friv-

olous, malicious or failed to state a claim, the district court

nonetheless determined that the Ninth Circuit’s dismissal of

an appeal for lack of jurisdiction constituted a strike under

§ 1915(g). We disagree with this approach.

ANDREWS v. KING 2065

The PLRA does not define the terms “frivolous,” or “mali-

cious,” nor does it define dismissals for failure to “state a

claim upon which relief could be granted.” We have held that

the phrase “fails to state a claim on which relief may be grant-

ed,” as used elsewhere in § 1915, “parallels the language of

Federal Rule of Civil Procedure 12(b)(6).” See Barren v. Har-

rington, 152 F.3d 1193, 1194 (9th Cir. 1998) (interpreting

§ 1915(e)(2)(B)(ii) and employing the same de novo standard

of review applied to Rule 12(b)(6) motions). Yet there is no

Ninth Circuit case law on the 1996 Amendments to the PLRA

that explains precisely what the terms “frivolous” or “mali-

cious” mean. In defining these terms, we look to their “ordi-

nary, contemporary, common meaning.” Wilderness Soc’y v.

United States Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th

Cir. 2003) (en banc) (internal quotation marks and citations

omitted). Thus, a case is frivolous if it is “of little weight or

importance: having no basis in law or fact.” Webster’s Third

New International Dictionary 913 (1993); see also Goland v.

United States, 903 F.2d 1247, 1258 (9th Cir. 1990) (adopting

a definition of “frivolous”). A case is malicious if it was filed

with the “intention or desire to harm another.” Webster’s

Third New International Dictionary 1367 (1993).

Not all unsuccessful cases qualify as a strike under

§ 1915(g). Rather, § 1915(g) should be used to deny a prison-

er’s IFP status only when, after careful evaluation of the order

dismissing an action, and other relevant information, the dis-

trict court determines that the action was dismissed because

it was frivolous, malicious or failed to state a claim.

Here, the State defendants attempted to meet their burden

of production by pointing to the fact that Andrews had filed

at least twenty-two prior cases that had been dismissed. This

was insufficient to shift the burden to Andrews. Although the

Magistrate Judge, relying on the PACER docket records,

identified prior cases that potentially qualified as strikes under

§ 1915(g), only one case plainly qualified as a strike because

the docket record showed that it was dismissed for failure to

2066 ANDREWS v. KING

state a claim under Rule 12(b)(6). As for the four other cases,

the Magistrate Judge determined that each one counted as a

strike without considering the underlying court orders or mak-

ing an independent assessment of whether the prior cases

were frivolous or malicious or failed to state a claim.

[7] We hold that, under the plain language of § 1915(g), the

prior dismissals would qualify as strikes only if, after review-

ing the orders dismissing those actions and other relevant

information, the district court determined that they had been

dismissed because they were frivolous, malicious or failed to

state a claim. See § 1915(g). Under the circumstances, we

must remand this case to the district court so it can make the

necessary determinations on the basis of a more complete fac-

tual record.

C. Dismissals While in INS Detention

[8] Andrews argues that he was not a “prisoner” for the

purposes of 28 U.S.C. § 1915(g) when he filed three of the

actions that the district court counted as strikes.10 We hold that

dismissals of actions brought while a plaintiff was in the cus-

tody of the INS do not count as “strikes” within the meaning

of § 1915(g), so long as the detainee did not also face criminal

charges. See Agyeman v. INS, 296 F. 3d 871, 885-86 (9th Cir.

2002).

[9] The language of § 1915(g) does not limit the type of

facility in which a plaintiff must be detained when the prior

actions were filed. It states that a prisoner may not proceed

IFP if the three dismissed actions were filed while the pris-

oner was “incarcerated or detained in any facility.” § 1915(g).

Yet the scope of § 1915 is narrowed to plaintiffs who are in

custody as the result of a conviction or who have been

detained for an alleged criminal law violation:

10

Andrews refers to Rudder v. Vargas & Associates, No. 94-CV-67

(D.C. Cir.); Rudder v. Revitz, 93-CV-2778 (C.D. Cal.); and Rudder v.

Dep’t of Justice, No. 93-CV-1913 (C.D. Cal.).

ANDREWS v. KING 2067

As used in this section, the term “prisoner” means

any person incarcerated or detained in any facility

who is accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law

or the terms and conditions of parole, probation, pre-

trial release or diversionary program.

§ 1915(h). Thus, a civil detainee is not a “prisoner” within the

meaning of the PLRA. Agyeman, 296 F.3d at 886; Page v.

Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000) (holding that

§ 1915 “requirements apply only to ‘prisoners.’ . . . currently

detained as a result of accusation, conviction, or sentence for

a criminal offense.”) (citations omitted).

[10] In Agyeman, we held that an INS detainee who does

not also face criminal charges is not a prisoner under § 1915.

296 F.3d at 886; see also LaFontant v. INS, 135 F.3d 158, 165

(D.C. Cir. 1998) (same); Ojo v. INS, 106 F.3d 680, 682 (5th

Cir. 1997) (same). Thus, if Andrews was not detained pursu-

ant to “an accusation, conviction or sentence for a criminal

offense” while in INS custody, he was a civil detainee and not

subject to the PLRA’s provisions. Under such circumstances,

the dismissal of a case that Andrews filed while he was in the

custody of the INS would not count as a strike for the pur-

poses of § 1915(g).11 On remand, Andrews bears the burden

of establishing that he was in INS custody and that he was not

facing criminal charges at the time he filed the actions.

11

This interpretation comports with Congress’s purpose in enacting the

PLRA to prevent frivolous prison condition lawsuits filed by criminals.

See generally, Joshua D. Franklin, Comment, Three Strikes and You’re

Out of Constitutional Rights? The Prison Litigation Reform Act’s “Three

Strikes” Provision and Its Effect on Indigents, 71 U. COLO. L. REV. 191

(2000); Brian J. Ostrom, Roger A. Hansen, and Fred L. Cheesman, Con-

gress, Courts and Corrections: An Empirical Perspective on the Prison

Litigation Reform Act, 78 NOTRE DAME L. REV. 1525 (2003).

2068 ANDREWS v. KING

D. Dismissals of Habeas Petitions

[11] Finally, we agree with the district court that dismissed

habeas petitions do not count as strikes under § 1915(g).12 We

previously have held that the “PLRA’s revised [in] forma

pauperis provisions relating to prisoners do not apply to

habeas proceedings.” Naddi v. Hill, 106 F.3d 275, 277 (9th

Cir. 1997). In Naddi, we reasoned that the language of

§ 1915(g) does not encompass habeas petitions and also that

Congress intended § 1915(g) to address civil rights and prison

condition cases, not habeas petitions. See id. See also Jen-

nings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d

775, 779 (10th Cir. 1999) (holding that the “district court

erred when it counted . . . prior habeas corpus action as a

strike under § 1915(g)”); In re Nagy, 89 F.3d 115, 117 (2d

Cir. 1996) (holding that the application of the PLRA to man-

damus petitions depends on the nature of the relief sought—

only if the prisoner’s mandamus claim is analogous to the typ-

ical suits brought under 42 U.S.C. § 1983 complaining about

prison conditions does the PLRA apply).

E. Constitutional Challenges

Andrews also argues that § 1915(g) is unconstitutional on

its face and as applied to him. We previously have held that

§ 1915(g) is not facially unconstitutional. Rodriguez v. Cook,

169 F.3d 1176, 1181 (9th Cir. 1999). In Rodriguez, we found

that deterring frivolous lawsuits is rationally related to a legit-

imate government interest and therefore does not violate the

Equal Protection Clause of the Fourteenth Amendment. Id. at

1180-81. We explained that “[b]udgetary concerns are a legit-

imate governmental interest and curbing the costs of defend-

12

We recognize, however, that some habeas petitions may be little more

than 42 U.S.C. § 1983 actions mislabeled as habeas petitions so as to

avoid the penalties imposed by 28 U.S.C. § 1915(g). In such cases, the dis-

trict court may determine that the dismissal of the habeas petition does in

fact count as a strike for purposes of § 1915(g).

ANDREWS v. KING 2069

ing against frivolous litigation is rationally related to

maintaining the budget.” Id. Although we recognize that seri-

ous constitutional concerns would arise if § 1915(g) were

applied to preclude those prisoners who had filed actions that

were not “frivolous, malicious or fail[ed] to state a claim”

from proceeding IFP, we do not decide Andrews’ as-applied

challenge because we can resolve this case on narrower

grounds.

Accordingly, we vacate the dismissal and remand for fur-

ther proceedings consistent with this opinion.

VACATED AND REMANDED.

FERNANDEZ, Circuit Judge, concurring and dissenting:

I concur in the majority opinion, with the exception of part

III-A and the second sentence of the second paragraph of part

III-B. As to those three portions, I dissent.

A. Burdens of Production and Persuasion

Andrews asserts that the district court erred when it allo-

cated to him the burden of proving that his prior dismissals

did not constitute strikes. He posits that when the state tells

the court that a prisoner should not have IFP status based on

28 U.S.C. § 1915(g), it should bear the final burden of per-

suading the court of the existence of three prior strikes. The

majority and I agree that is not so.

The district court’s allocation of the burden of persuasion

is a question of law that we review de novo. Ferrari, Alvarez,

Olsen & Ottoboni v. Home Ins. Co., 940 F.2d 550, 555 (9th

Cir. 1991); Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986).

Although we have yet to rule on the issue, those circuits that

have addressed it have placed the burden on the prisoner who

2070 ANDREWS v. KING

is seeking to file IFP. See Day v. Maynard, 200 F.3d 665,

666-67 (10th Cir. 1999) (per curiam) (section 1915(g) barred

prisoner’s action where he failed to persuade the court that his

prior dismissals did not qualify as strikes); Evans v. Ill. Dep’t

of Corrs., 150 F.3d 810, 812 (7th Cir. 1998) (“Having been

notified [of the court’s denial of his request to proceed IFP],

Evans bore the burden of showing that the district court incor-

rectly assessed his litigation history.”); Rivera v. Allin, 144

F.3d 719, 730 (11th Cir. 1998) (“[I]t is the prisoner’s burden

to produce sufficient record information about ‘prior occa-

sions’ to the appellate court . . . .”). I join them. So, as I

understand it, does the majority.

Where the majority and I disagree is on just what a defen-

dant or the district court must point to in order to require the

plaintiff to go forward and shoulder his burdens of production

and persuasion.

In general, filing an action IFP is a privilege, not a right.

See, e.g., Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir.

1999); White v. Colorado, 157 F.3d 1226, 1233 (10th Cir.

1998); Rivera, 144 F.3d at 724; Startti v. United States, 415

F.2d 1115, 1116 (5th Cir. 1969) (per curiam); Smart v.

Heinze, 347 F.2d 114, 116 (9th Cir. 1965). Therefore, prison-

ers who desire that benefit have always been statutorily

required to demonstrate that they financially qualify,1 and

with § 1915(g) Congress added one more hurdle that they

must surmount. To place the burden of proving the existence

of (or establishing a prima facie case of) three strikes on the

state would be illogical for it would force a third party to

demonstrate why a person should not obtain a benefit to

which the person has no right in the first place. See, e.g.,

Aeroquip Corp. v. Aetna Cas. & Sur. Co., Inc., 26 F.3d 893,

895 (9th Cir. 1994) (allocating burden of persuasion to

insured in part because it aligned the burden with the benefit).2

1

28 U.S.C. § 1915(a)(1).

2

Allocating the burden of persuasion to the benefit-seeker has been

common in other areas as well. For example, in the sentencing context, the

ANDREWS v. KING 2071

The more sound approach requires the party seeking IFP sta-

tus to prove all of the prerequisites thereto, including the

absence of three prior strikes. Under that framework, a pris-

oner has an incentive to file a motion for IFP status only if he

knows that he can produce sufficient evidence to show that

his prior dismissals do not qualify under § 1915(g), thus

reducing frivolous IFP motions and effectuating the policy

underlying the PLRA. See Howard, 894 F.2d at 1090.

But what about access to the relevant records? Andrews

opines that the state is better situated to ascertain and provide

courts with information regarding prisoners’ prior dismissals.

To bolster his assertion, he relies heavily on our pronounce-

ment that, in the administrative exhaustion context, “prison

officials are likely to have greater legal expertise and, as

important, superior access to prison administrative records in

comparison to prisoners,” particularly where prisoners have

been transferred to different facilities. Wyatt v. Terhune, 315

F.3d 1108, 1119 (9th Cir. 2003).

Contrary to Andrews’ intimation, although easier access to

records can be relevant to the burden-allocation inquiry, it is

not dispositive.3 See, e.g., NLRB v. Tahoe Nugget, Inc., 584

F.2d 293, 301 (9th Cir. 1978). It was, in fact, only one

burden of proving facts that would warrant a reduced sentence rests on the

defendant. See Butler, 970 F.2d at 1026; United States v. Howard, 894

F.2d 1085, 1089-90 (9th Cir. 1990); see also United States v. Garcia, 544

F.2d 681, 685-86 (3d Cir. 1976) (“One who affirmatively seeks special

favor at sentencing has the burden of proving why it should be

bestowed.”). That is also true for disability-benefit claimants see Gomez

v. Chater, 74 F.3d 967, 970 (9th Cir. 1996), as well as for tax-deduction

suppliants, see Norgaard v. Comm’r, 939 F.2d 874, 877 (9th Cir. 1991).

3

Actually, leading commentators have cautioned against its overempha-

sis. See McCormick, supra, § 337, at 413; Richard A. Epstein, Pleadings

and Presumptions, 40 U. Chi. L. Rev. 556, 579-80 (1973); Edward W.

Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 12

Stan. L. Rev. 5, 12 (1959).

2072 ANDREWS v. KING

amongst several factors underlying Wyatt. More importantly,

evidence of prior dismissals is easily distinguishable from evi-

dence of prison administrative records. The latter are likely

produced by and stored at a prison facility; therefore, prison

administrators are intimately familiar with them, and they are

easily identifiable and accessible. As evidenced by this case,

however, prisoners may file legal actions in numerous courts

and under different names. Copies of those dismissals and the

details of the nature of those cases would at least presump-

tively be more readily ascertained by the prisoner, who filed

them and followed them to their conclusion, than they are by

a third party’s attorney. Certainly, one who files a lawsuit can

be expected to know more about it than some third party.4

Moreover, the fact that the state brought the prior actions to

the attention of the court should make no difference at all. The

question of IFP status is a matter between the court and the

requestor. The mere fact that the state alerts the court to the

issue (and might benefit from its resolution) should not lead

to the placing of any substantial burden upon it.5

In sum, the goals and access factors as well as the policies

underlying § 1915(g) militate in favor of placing the burden

of persuasion on Andrews. More than that, it should be

enough for the defendants or the court to point to the fact of

prior dismissals and then let the plaintiff explain them, if he

can. That is, the dismissals themselves are sufficient evidence

to suggest that, at the least, the action was not meritorious and

failed to state a claim. The plaintiff should have to demon-

4

By the way, Andrews should not be able to hide behind the claim that

because his litigation history is such a gallimaufry (over 60 cases in all),

he should not have to remember or explain that history. That is the height

of crocodility; he is just the sort of prisoner that Congress had in mind

when it passed the PLRA.

5

In fact, it is difficult to see why the state should even have any burden

of production under the circumstances. It aids and is a friend of the court

when it brings the information to the court’s attention. After all, filing fees

are designed to fund court operations; they do not go to the opposing liti-

gants. See 28 U.S.C. §§ 1911-1931.

ANDREWS v. KING 2073

strate the contrary. Thus, I would hold that when the state

proffers information tending to show that a prisoner has three

prior strikes, it is the prisoner’s burden to produce sufficient

evidence to persuade the court that § 1915(g) does not bar

him from IFP status. Moreover, the dismissals themselves

tend to show just that.

B. The Meaning of a Strike

I also do not agree that a dismissal for filing a clearly

improper appeal is not a dismissal on the basis of frivolity.

This court, for example, is often barraged with premature

appeals by prisoners who refuse to accept the district court’s

interim rulings — for example, dismissals with leave to

amend, which we have definitively stated are not appealable.

See WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136-37 (9th

Cir. 1997) (en banc); see also Neitzke v. Williams, 490 U.S.

319, 325, 109 S. Ct. 1827, 1831-32, 104 L. Ed. 2d 338 (1989);

Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1370 (9th

Cir. 1987). Indeed, as I see it, that sort of a filing is close to

the apogee of filings which meet the definition set forth in the

majority opinion.

Thus, I concur in the majority opinion, except as to the por-

tions already indicated, as to which I respectfully dissent.