Washington v. Los Angeles County Sheriff's Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM NATHANIEL No. 13-56647

WASHINGTON,

Plaintiff-Appellant, D.C. No.

2:13-cv-04402-UA-PJW

v.

LOS ANGELES COUNTY OPINION

SHERIFF’S DEPARTMENT; LEE

BACA; TWIN TOWERS

CORRECTIONAL FACILITY,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

George H. King, Chief District Judge, Presiding

Argued and Submitted April 4, 2016

Pasadena, California

Filed August 12, 2016

Before: JEROME FARRIS, CARLOS T. BEA,

and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

2 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

SUMMARY*

Prisoner Civil Rights

The panel reversed the district court’s denial of a

prisoner’s motion to proceed in form pauperis after the

district court found that the prisoners had accrued at least

three prior “strikes” under the Prison Litigation Reform Act’s

“three strikes rule.” 28 U.S.C. § 1915(g).

The panel held that the district court improperly assessed

the existence of five prior strikes against plaintiff and

therefore the panel remanded for the district court to assess

whether plaintiff was entitled to proceed with his action in

forma pauperis.

Assessing the prior federal filings, the panel held that a

dismissal pursuant to Heck v. Humphrey, 512 U.S. 477

(1994), may constitute a strike for failure to state a claim

when Heck’s bar to relief is obvious from the face of the

complaint, and the entirety of the complaint is dismissed for

a qualifying reason under the Prison Litigation Reform Act.

The panel held that when multiple claims are presented in a

single action, a strike may only be assessed when the case as

a whole is dismissed for a qualifying reason under the Prison

Litigation Reform Act. Applying this legal framework to the

facts of plaintiff’s prior filing, which intertwined the Heck-

barred damages claims with a habeas challenge to the

underlying sentence, the panel concluded that the dismissal

*

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

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

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 3

of plaintiff’s action pursuant to Heck did not constitute a

strike.

The panel held that a dismissal due to abstention under

Younger v. Harris, 401 U.S. 37 (1971), similar to a dismissal

under Rule 12(b)(1) for lack of subject-matter jurisdiction, is

not a strike.

The panel held that plaintiff’s two mandamus petitions,

which directly challenged the underlying criminal

proceedings, were more properly construed as appeals of

criminal cases, and therefore operated like habeas claims that

lie outside the scope of the Prison Litigation Reform Act, and

do not incur strikes.

COUNSEL

Joanna S. McCallum (argued), Manatt, Phelps & Phillips,

LLP, Los Angeles, California, for Plaintiff-Appellant.

Mackenzie C. Smith (argued) and Paul B. Beach, Lawrence

Beach Allen & Choi, PC, Glendale, California, for

Defendant-Appellee Los Angeles County Sheriff’s

Department.

No appearance for Defendants-Appellees Lee Baca and Twin

Towers Correctional Facility.

4 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

OPINION

M. SMITH, Circuit Judge:

This appeal addresses the application of the Prison

Litigation Reform Act of 1995’s (PLRA) “three-strikes” rule,

28 U.S.C. § 1915(g), to Plaintiff William Washington’s

action against the Los Angeles County Sheriff’s Department,

Lee Baca, and the Twin Towers Correctional Facility

(collectively, Defendants). The PLRA’s “three-strikes” rule

prohibits a prisoner from filing an action in forma pauperis

(IFP) if he has accumulated three “strikes” for prior federal-

court actions while incarcerated or in detention, unless he is

“under imminent danger of serious physical injury.” Id. A

prisoner can incur a “strike” for bringing an action “that was

dismissed on the grounds that it is frivolous, malicious, or

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

Washington, a California state prisoner, requested leave

to file suit IFP against Defendants. The district court denied

Washington’s IFP request on the basis that he had accrued at

least three prior “strikes” under § 1915(g). The district court

also found that Washington’s complaint failed to adequately

plead “imminent danger of serious physical injury” within the

meaning of § 1915(g). Because we hold that the district court

improperly assessed the existence of prior strikes against

Washington, we REVERSE and REMAND.

FACTS AND PRIOR PROCEEDINGS

While in detention pending the outcome of a criminal

trial, Washington submitted a complaint, alleging violations

of his Eighth Amendment right to adequate medical care and

safe prison conditions, and requesting monetary and

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 5

injunctive relief pursuant to 42 U.S.C. § 1983. Along with the

submission of his complaint, Washington requested

permission to proceed IFP pursuant to 28 U.S.C. § 1915,

which would permit him to pay the $350 filing fee in gradual

installments rather than as an initial lump sum. See Andrews

v. Cervantes, 493 F.3d 1047, 1051–52 (9th Cir. 2007). The

district court found that Washington had accrued at least three

strikes under the PLRA, and that his complaint did not allege

“imminent danger of serious physical injury,” which would

permit him to bypass the PLRA’s three-strikes rule. See

28 U.S.C. § 1915(g). It denied the IFP request and dismissed

the action without prejudice.

Below we consider the history of Washington’s five prior

federal filings, which Defendants claim resulted in PLRA

strikes against Washington.1

1. Washington v. Haviland, No. 2:09-CV-3052

In November 2009, Washington filed a § 1983 complaint

in the U.S. District Court for the Eastern District of California

against prison wardens and various state officials. See

Washington v. Haviland, No. 2:09-CV-3052 (E.D. Cal. filed

Nov. 3, 2009). In the complaint, Washington claimed that the

defendants, in a separate state proceeding, had applied an

improper sentencing enhancement, causing him to remain in

prison for an additional year, in violation of his Fourteenth

Amendment rights. He requested compensation for his

injuries, including monetary damages for negligent infliction

1

Because we ultimately conclude that Washington has not accrued three

strikes, we decline to delve into the substance of his most recent complaint

to decide whether it adequately alleges an “imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g).

6 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

of emotional distress, actual loss of wages, and punitive

damages, as well as injunctive relief in the form of a “recall”

of his sentence. Washington simultaneously submitted an IFP

request.

A magistrate judge screened Washington’s complaint

pursuant to 28 U.S.C. § 1915A(a). The magistrate judge

concluded that Heck v. Humphrey, 512 U.S. 477 (1994),

required dismissal of Washington’s § 1983 claim because a

favorable ruling would cast into doubt the validity of his

underlying sentence. The magistrate judge then advised

Washington that a habeas petition was the “proper

mechanism” for challenging his sentence. On March 15,

2010, the district court adopted the magistrate judge’s

recommendations, denied Washington’s IFP application, and

dismissed the action “without prejudice for failure to state a

cognizable claim.”

2. Washington v. California Supreme Court, No. 2:10-

CV-54

In January 2010, after the California Supreme Court

denied Washington’s emergency ex parte motion for relief,

Washington brought an action challenging the validity of the

sentencing enhancement through a mandamus petition, this

time in the U.S. District Court for the Central District of

California. See Washington v. Cal. Supreme Court, No. 2:10-

CV-54 (C.D. Cal. filed Jan. 5, 2010). He also submitted an

IFP request with the complaint.

The U.S. District Court for the Central District of

California uses a standard template order for screening IFP

requests. Such a template was used in this case as well as in

subsequent cases Washington filed in that court. On the

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 7

template order, the magistrate judge recommended a denial

of the IFP request. Under the section listing “reason(s)” for

the denial, the magistrate judge did not indicate that the

pleading was “[f]rivolous, malicious, or fails to state a

claim,” or that the “denial may constitute a strike” under the

PLRA. Rather, the magistrate judge offered a separate

explanation in the comments section. Specifically, she

concluded that a mandamus petition was inappropriate when

other forms of relief, such as a habeas petition, were available

to challenge the sentencing decision. Accordingly, the

magistrate judge directed the clerk to “attach the appropriate

[habeas] form for petitioner to use.” The district court denied

the IFP request without further comment or qualification.

3. Washington v. California Supreme Court, No. 2:10-

CV-964

In February 2010, Washington submitted a near facsimile

of the earlier mandamus petition, accompanied by an IFP

request. See Washington v. Cal. Supreme Court, No. 2:10-

CV-964 (C.D. Cal. filed Feb. 19, 2010). A different

magistrate judge concluded that the complaint “remains an

inappropriate mandamus action,” and that Washington could

instead submit a habeas petition. The magistrate judge

checked off the boxes on the template order indicating that

the complaint was “[f]rivolous, malicious, or fails to state a

claim” and that “[t]his denial may constitute a strike.” The

district court denied Washington’s IFP request.

4. Washington v. Los Angeles Police Department, No.

2:12-CV-5873

Over two years later, in July 2012, Washington filed a

§ 1983 complaint in relation to ongoing state criminal

8 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

proceedings. See Washington v. L.A. Police Dep’t, No. 2:12-

CV-5873 (C.D. Cal. filed July 6, 2012). He again requested

IFP status. Washington alleged that the Los Angeles Police

Department as well as its officers and agents “committed

felony misconduct to falsely imprison [Washington] and to

potentially manipulate the verdict of a trial,” in violation of

the Fifth and Fourteenth Amendments. Specifically,

Washington claimed that the defendants had forged evidence

and falsified reports in a criminal investigation involving

Washington. He requested damages and various forms of

injunctive relief.

A magistrate judge recommended that the IFP request be

denied. The magistrate judge noted that it was “not clear

whether the underlying criminal case against [Washington] is

ongoing or whether he has already been convicted,” but, in

either case, Washington’s § 1983 claim “[could] not go

forward.” The magistrate judge reasoned that the claim was

either barred by Heck, because it challenged a criminal

conviction, or barred by Younger v. Harris, 401 U.S. 37

(1971), because the state criminal proceedings were ongoing.2

The magistrate judge also noted that a habeas petition was the

appropriate remedy for challenging the legality of his

confinement. Accordingly, the magistrate judge ticked off the

following boxes on the template order as reasons for the

denial of IFP status: (1) “District Court lacks jurisdiction;

(2) “Frivolous, malicious, or fails to state a claim”;

(3) “Leave to amend would be futile”; and (4) “Other.” Under

the “Other” section, the magistrate judge wrote: “Heck barred

2

The record reveals that the state criminal proceedings were then

ongoing, therefore triggering abstention under Younger. See infra Section

II.B.

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 9

and/or Younger abstention.” The district court denied

Washington’s IFP request, without leave to amend.

5. Washington v. City of Los Angeles, No. 2:12-CV-

7429

In August 2012, Washington filed another § 1983 lawsuit,

repeating similar facts from his July 2012 complaint, and

requested IFP status. See Washington v. City of Los Angeles,

No. 2:12-CV-7429 (C.D. Cal. filed Aug. 29, 2012). This time,

Washington modified the named defendants and the relief

sought, notably removing his previous request for immediate

release from custody and “thorough investigation of the

criminal case,” but requesting that a “forensic document

examiner be appointed to prove [the] authenticity of [the]

document in question.” Washington also removed his claim

of false imprisonment, but retained his allegations of due-

process violations arising from police misconduct.

The same magistrate judge that reviewed Washington’s

previous July 2012 IFP request reviewed this complaint. On

the template order, the magistrate judge recommended

denying the IFP request for the same reasons as the July 2012

IFP request, but additionally checked a box stating that the

denial “may constitute a strike.” The district court denied

Washington’s IFP request, without leave to amend.

STANDARD OF REVIEW AND JURISDICTION

“We review the district court’s interpretation and

application of § 1915(g)” de novo. Cervantes, 493 F.3d at

1052. We have jurisdiction under 28 U.S.C. § 1291. Andrews

v. King, 398 F.3d 1113, 1118 (9th Cir. 2005).

10 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

ANALYSIS

I. Prison Litigation Reform Act

The Prison Litigation Reform Act of 1995 (PLRA), Pub.

L. No. 104-134, tit. VIII, 110 Stat. 1321 (1996) (codified in

part at 28 U.S.C. § 1915) restricted the ability of prisoners to

avail themselves of IFP status when filing certain federal

lawsuits. Specifically, § 1915(g) contains the PLRA’s “three-

strikes” rule. This provision bars prisoners from proceeding

IFP if they have accrued “three strikes” under the statute:

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, 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.

Although the legislative history of the PLRA is meager,

the Act’s supporters indicated that it was meant to curb the

volume of non-meritorious, and often frivolous, civil-rights

lawsuits brought challenging prison conditions. See

Cervantes, 493 F.3d at 1051–52. The PLRA also contains

other provisions designed to limit the number of such suits in

federal courts. For example, it contains an administrative-

exhaustion requirement to ensure that prisoners make use of

prison grievance procedures. 42 U.S.C. § 1997e(a). In

addition, the PLRA requires that courts screen prisoner

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 11

complaints and dismiss them sua sponte if they determine

then, or later in the proceedings, that the complaints are

“frivolous, malicious, or fail[] to state a claim.” 28 U.S.C.

§ 1915A.

II. PLRA “Strikes”

A. Heck Dismissals

Central to Washington’s argument is that a dismissal

under Heck does not constitute a strike within the meaning of

§ 1915(g). In Heck v. Humphrey, the Supreme Court held that

a court must dismiss a § 1983 claim if (1) it seeks to recover

damages for “harm caused by actions whose unlawfulness

would render a conviction or sentence invalid” and (2) the

plaintiff cannot show that “the conviction or sentence has

been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

a determination, or called into question by a federal court’s

issuance of a writ of habeas corpus.” 512 U.S. at 486–87.

Accordingly, a civil damages claim that undermines a valid,

underlying conviction or sentence is “not cognizable under

§ 1983.” Id. at 487. The Court explained that, in such cases,

it was “deny[ing] the existence of a cause of action,” and that

“a § 1983 cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue until

the conviction or sentence has been invalidated.” Id. at

489–90.

12 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

Washington advances several arguments concerning why

Heck dismissals do not qualify as strikes.3 First, we address

the legal framework for determining when a Heck dismissal

constitutes a strike, including whether such dismissals may be

“frivolous, malicious, or fail[] to state a claim” under the

PLRA. 28 U.S.C. § 1915(g). Ultimately, we hold that a

dismissal may constitute a PLRA strike for failure to state a

claim when Heck’s bar to relief is obvious from the face of

the complaint, and the entirety of the complaint is dismissed

for a qualifying reason under the PLRA. Second, we apply

this legal framework to the facts of Washington’s case, and

conclude that the Heck dismissal in question, No. 2:09-CV-

3052, does not constitute a PLRA strike.

1. Dismissals of Frivolous or Malicious

Complaints

First, Washington contends that a complaint dismissed

under Heck, standing alone, is not a per se “frivolous” or

“malicious” complaint. We agree. A Heck dismissal is not

categorically frivolous—that is, having “no basis in law or

fact,” King, 398 F.3d at 1121 (internal quotation marks and

3

Contrary to Defendants’ contention, we have never squarely broached

the question of whether Heck dismissals count as strikes. See Cervantes,

493 F.3d at 1052 n.2. Rather, our prior cases are inconclusive because

they affirmed district-court dismissals without engaging in an analysis of

the propriety of imposing PLRA strikes for those dismissals. See

Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997) (affirming Heck

dismissal for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6)). Neither does Belanus v. Clark, 796 F.3d 1021 (9th Cir. 2015),

bind us on this issue. Belanus assessed a PLRA strike for a Rule 12(b)(6)

dismissal on the ground that the “thrust” of the complaint was barred by

the statute of limitations, such that a dismissal for failure to state a claim

could be sustained on that basis. Id. at 1024–25, 1027.

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 13

citation omitted)—because plaintiffs may have meritorious

claims that do not accrue until the underlying criminal

proceedings have been successfully challenged. See Heck,

512 U.S. at 489–90. For this reason, a Heck dismissal is made

without prejudice, such that a prisoner may refile the

complaint once his conviction has been overturned. See

Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.

1995) (per curiam). Similarly, a Heck dismissal cannot be

characterized as malicious, unless the court specifically finds

that the complaint was “filed with the intention or desire to

harm another.” King, 398 F.3d at 1121 (internal quotation

marks and citation omitted).

2. Dismissals for Failure To State a Claim

Neither do all Heck dismissals categorically count as

dismissals for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6). We have previously determined that

the language “fails to state a claim upon which relief may be

granted” in § 1915(g), tracks the language of Rule 12(b)(6),

and that dismissals under Rule 12(b)(6) may constitute strikes

within the meaning of the PLRA. See Knapp v. Hogan,

738 F.3d 1106, 1109 (9th Cir. 2013). We now hold that Heck

dismissals may constitute Rule 12(b)(6) dismissals for failure

to state a claim when the pleadings present an “obvious bar

to securing relief” under Heck. ASARCO, LLC v. Union Pac.

R.R., 765 F.3d 999, 1004 (9th Cir. 2014).

We do not hold, however, that a successful challenge to

the underlying criminal proceedings, i.e., “favorable

termination,” is a necessary element of a civil damages claim

14 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

under § 1983.4 Section 1983 merely requires that a litigant

allege a “deprivation of any rights, privileges, or immunities

secured by the Constitution and laws,” and that the

challenged conduct transpire “under color of [state law].”

42 U.S.C. § 1983. The fact that a conviction has been set

aside is not an element of the claim at issue. Indeed, a

particular plaintiff’s need to demonstrate that his conviction

has been set aside is contingent on a threshold legal

determination, made by the court, that the requested relief

would undermine the underlying conviction. Cf. Lockett v.

Ericson, 656 F.3d 892, 896–97 (9th Cir. 2011).

Instead, compliance with Heck most closely resembles the

mandatory administrative exhaustion of PLRA claims, which

constitutes an affirmative defense and not a pleading

requirement.5 See Jones v. Bock, 549 U.S. 199, 215–17

(2007). Like dismissals for lack of administrative exhaustion,

Heck dismissals do not reflect a final determination on the

underlying merits of the case. See Lopez v. Smith, 203 F.3d

4

The two circuit courts to consider this issue directly have both held that

Heck dismissals may constitute a strike for “failure to state a claim,”

although their reasoning on this score is overbroad. See Smith v. Veterans

Admin., 636 F.3d 1306, 1312 (10th Cir. 2011) (holding that “the favorable

termination of a habeas case is an essential element of a prisoner’s civil

claim for damages brought under 42 U.S.C. § 1983 that necessarily

implies the invalidity of the prisoner’s conviction”); In re Jones, 652 F.3d

36, 37 (D.C. Cir. 2011) (per curiam) (adopting the reasoning in Smith); see

also Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (holding, with

scant analysis, that Heck dismissals are categorically “frivolous”).

5

Consistent with the burden of proof for an affirmative defense, we have

held that the defendant in a § 1983 action must show that the plaintiff’s

success in the action would necessarily imply the invalidity of a criminal

conviction. See Smith v. City of Hemet, 394 F.3d 689, 699 n.5 (9th Cir.

2005) (en banc); Sanford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001).

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 15

1122, 1129 (9th Cir. 2000) (en banc). Rather, Heck dismissals

reflect a matter of “judicial traffic control” and prevent civil

actions from collaterally attacking existing criminal

judgments. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir.

2014) (en banc) (internal quotation marks and citation

omitted); see Heck, 512 U.S. at 483–87. Therefore, as with

affirmative defenses, a court may properly dismiss a Heck-

barred claim under Rule 12(b)(6) if there exists an “obvious

bar to securing relief on the face of the complaint.” ASARCO,

LLC, 765 F.3d at 1004; see Jones, 549 U.S. at 215. With

respect to No. 2:09-CV-3052, the Heck deficiency was plain

from the face of the complaint, as Washington sought a

“recall” of his allegedly unlawful sentence, thereby revealing

that it was still extant.

3. Full and Partial Dismissals under Heck

In light of the above analysis of Heck, we must next

decide whether the dismissal in No. 2:09-CV-3052 triggered

a PLRA strike. Before proceeding, however, we clarify that

so-called Heck dismissals come in various guises. This is an

important distinction because only a complete dismissal of an

action under Heck—rather than the dismissal of a particular

claim within that action—constitutes a strike. See Cervantes,

493 F.3d at 1054.

Broadly speaking, there are two kinds of cases in which

Heck is implicated. The first type was presented in Heck

itself, where a prisoner filed a civil suit seeking purely money

damages related to an allegedly unlawful conviction.

512 U.S. at 479. Heck barred the suit because an award of

damages would undermine the validity of the underlying

conviction, and the entire action therefore faced dismissal

under Heck. Id. at 486–87.

16 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

Another type is the one we have before us, in which a

prisoner seeks injunctive relief challenging his sentence or

conviction—and further seeks monetary relief for damages

attributable to the same sentence or conviction. The first

request, for injunctive relief, sounds in habeas, and is not

subject to the PLRA’s regime. King, 398 F.3d at 1122–23.

The second request, seeking damages, is intertwined with

Washington’s plea for injunctive relief, and is therefore

subject to dismissal under Heck.

When we are presented with multiple claims within a

single action, we assess a PLRA strike only when the “case

as a whole” is dismissed for a qualifying reason under the

Act. Cervantes, 493 F.3d at 1054. Although one portion of

Washington’s action might have been dismissed for failure to

comply with Heck, the remainder sounds only in habeas. A

habeas action, as we have held, is not a “civil action” within

the purview of the PLRA because it operates to challenge the

validity of a criminal proceeding, and its dismissal does not

trigger a strike. King, 398 F.3d at 1122–23; see also El-

Shaddai v. Zamora, No. 13-56104, slip op. at 17–18 (9th Cir.

Aug. 12, 2016) (holding that would-be habeas petitions do

not count as strikes). As a result, Washington has not accrued

a strike for the dismissal of his first suit, No. 2:09-CV-3052,

because the entire action was not dismissed for one of the

qualifying reasons enumerated by the Act.6

6

We emphasize that our holding is limited to the question now before

us, i.e., whether such dismissals constitute strikes within the meaning of

the PLRA, and does not alter our existing law governing a court’s

determination of when to “convert a defective section 1983 claim into a

habeas petition.” Trimble, 49 F.3d at 586; see Tucker v. Carlson, 925 F.2d

330, 332 (9th Cir. 1991); see also Castro v. United States, 540 U.S. 375,

382–83 (2003).

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 17

Considered from another angle, the Heck-dismissed

claims were part and parcel of Washington’s legal challenge

to his criminal sentence. Washington sought relief from the

fact or duration of his confinement, specifically a “recall of

his sentence,” and related monetary damages. This prompted

the district court to advise him that habeas proceedings were

“the proper mechanism” for challenges to his sentence. Until

Washington has proven the invalidity of that sentence, he is

barred from obtaining damages arising from it. Heck,

512 U.S. at 486–87. Because Washington’s Heck-barred

damages claims are thus intertwined with his habeas

challenge to the underlying sentence, we decline to impose a

strike with respect to his entire action. This approach squares

with the underlying purposes of the PLRA, where Congress

was preoccupied with the proliferation of civil-rights suits

challenging prison conditions—not criminal convictions. See

King, 398 F.3d at 1122–23.

B. Younger Abstention

Federal district courts twice dismissed Washington’s

complaints under Heck “and/or” Younger, Nos. 2:12-CV-

5873 and 2:12-CV-7429, finding that they “lack[ed]

jurisdiction.” Washington argues that a Younger dismissal

should be treated like a Rule 12(b)(1) dismissal for lack of

subject-matter jurisdiction, which does not trigger a PLRA

strike. See Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d

890, 893 (9th Cir. 2011). We agree with Washington.7

7

Similarly, Washington contends that a Heck dismissal is properly

considered jurisdictional in nature, and should therefore not trigger a

strike. Because we conclude that Washington’s partial dismissal under

Heck did not warrant a PLRA strike, we decline to reach this alternative

argument.

18 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

Under Younger v. Harris, a federal court must apply a

multi-part test to determine whether it should decline to

exercise its jurisdiction. See 401 U.S. at 41. “Younger

principles apply in an action for damages pursuant to

42 U.S.C. § 1983 in which the federal plaintiff brings a

constitutional challenge to a state proceeding when that

proceeding is ongoing; the state proceeding is of a judicial

nature, implicating important state interests; and the federal

plaintiff is not barred from litigating his federal constitutional

issues in that proceeding.” Gilbertson v. Albright, 381 F.3d

965, 984 (9th Cir. 2004). Although the courts below never

resolved whether dismissal was appropriate under Heck or

Younger, the record reveals that the dismissals should have

occurred under Younger, as both dismissed suits were brought

prior to Washington’s August 2013 state-court conviction.

See Wallace v. Kato, 549 U.S. 384, 393 (2007).

We hold that a dismissal due to Younger abstention,

similar to a dismissal under Rule 12(b)(1) for lack of subject-

matter jurisdiction, is not a strike under the PLRA. The

doctrine of abstention involves a decision by a federal court

to decline to exercise jurisdiction over the underlying claims

for reasons of comity. Gilbertson, 381 F.3d at 970–71; see

Albino, 747 F.3d at 1170. Dismissal on jurisdictional grounds

occurs not only before an examination of the merits, but

curtails such an examination. See Moore, 657 F.3d at 895.

“Unlike those situations where a federal court merely abstains

from decision on federal questions until the resolution of

underlying or related state law issues . . . Younger v. Harris

contemplates the outright dismissal of the federal suit, and the

presentation of all claims, both state and federal, to the state

courts.” Gibson v. Berryhill, 411 U.S. 564, 577 (1973).

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 19

As a result, Washington’s two prior dismissals under

Younger, Nos. 2:12-CV-5873 and 2:12-CV-7429, do not

constitute strikes. Moreover, to the extent Washington

requested relief in those actions that sounded distinctly in

habeas, while his remaining claims were barred by Younger,

such mixed dismissals do not constitute strikes unless the

entire action is dismissed for a qualifying reason under the

PLRA. See supra Section II.A.3. Here, neither the dismissal

of Washington’s claims under Younger, nor those sounding

in habeas, present qualifying reasons for imposing a strike

within the meaning of § 1915(g).

C. Petitions for a Writ of Mandamus

In enacting the PLRA, Congress intended to limit a

prisoner’s ability to proceed IFP in “a civil action” or the

“appeal [of] a judgment in a civil action or proceeding.”

28 U.S.C. § 1915(g). We have already held that the PLRA

does not extend to a prisoner’s use of habeas corpus petitions.

King, 398 F.3d at 1122. Like habeas, mandamus is a

common-law writ that cannot be squarely characterized as a

“civil action” or appeal thereof within the meaning of the

PLRA.

Most of the circuits to have considered this issue have

adopted an approach similar to that of the Seventh Circuit in

Martin v. United States, 96 F.3d 853, 854–55 (7th Cir. 1996).

In Martin, the Seventh Circuit concluded that, in many cases,

a mandamus petition “against the judge presiding in the

petitioner’s case,” effectively operates as a form of appeal. Id.

at 854. Whether the “appeal” is civil in nature will depend on

whether the underlying litigation is civil, and seeks “relief

sought in civil actions that are covered by the PLRA.” In re

Nagy, 89 F.3d 115, 117 n.1 (2d Cir. 1996); see Martin,

20 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

96 F.3d at 854–55 (“A petition for mandamus in a criminal

proceeding is not a form of prisoner litigation. . . . It is a

procedural step in the criminal litigation, like an interlocutory

or final appeal or a civil contempt proceeding against a

witness.”); In re Grant, 635 F.3d 1227, 1230 (D.C. Cir. 2011)

(applying PLRA to mandamus petitions when the underlying

action is civil); In re Stone, 118 F.3d 1032, 1033–34 (5th Cir.

1997) (same); In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997)

(same); cf. Madden v. Myers, 102 F.3d 74, 76–77 (3d Cir.

1996) (holding that mandamus actions are categorically not

“civil actions”). But see Green v. Nottingham, 90 F.3d 415,

417–18 (10th Cir. 1996).

In Washington’s case, his two mandamus petitions, Nos.

2:10-CV-54 and 2:10-CV-964, directly challenged underlying

criminal proceedings, and are more properly construed as

appeals of criminal cases. We are persuaded by the reasoning

of the Seventh Circuit in Martin, and we therefore conclude

that Washington’s two mandamus petitions operated like

habeas claims challenging a criminal conviction and lie

outside the scope of the PLRA.

III. Application to Washington’s Prior Filings

Finally, Washington raises several global procedural

challenges concerning the district court’s reliance on

screening orders in assessing PLRA strikes. In light of prior

courts’ use of the screening form template, see infra n.8, we

acknowledge that overreliance on prior classifications can be

particularly problematic. See King, 398 F.3d at 1121; Snider

v. Melindez, 199 F.3d 108, 115 n.4 (2d Cir. 1999). However,

we set his procedural challenges aside for a future day

because, under our analysis, Washington has not sustained

any strikes under the PLRA.

WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T 21

Washington’s preliminary dismissal, No. 2:09-CV-3052,

was a mixed Heck/habeas dismissal, which we concluded

does not qualify as a strike. See supra Section II.A. The next

two dismissals, Nos. 2:10-CV-54 and 2:10-CV-964, relate to

mandamus petitions challenging criminal proceedings, which

are not “civil actions” within the purview of the PLRA and,

like habeas petitions, do not incur strikes. See supra Section

II.C.

Nonetheless, Defendants contend that Washington’s

second mandamus petition was dismissed for frivolousness or

maliciousness because it was nearly identical to his first.8 We

decline to assess a strike, however, because Washington’s

action took the form of a mandamus petition “appealing” a

criminal case. See id. The most logical manner of reading

§ 1915(g) is to impose a symmetry in the statutory language,

where Congress was concerned with regulating “civil

actions,” so that qualifying strikes accrue only from the same.

Cf. Martin, 96 F.3d at 854 (reasoning that “in context it is

apparent that the word ‘appeal’ [in 28 U.S.C. § 1915(b)(1)]

means the appeal in a civil action.”); King, 398 F.3d at 1122

(holding that “dismissed habeas petitions do not count as

strikes”). Because Washington’s second mandamus petition

was not a “civil action,” it falls outside the scope of the

PLRA, and we do not consider its dismissal a qualifying

strike.

8

The screening order used in these dismissals is of limited assistance

because it does not require that a court enumerate the specific PLRA

ground upon which the dismissal is based. Neither did the district court

below isolate the grounds for dismissal, or make explicit findings of

frivolity or maliciousness. See Knapp, 738 F.3d at 1109–10 (“It is best

practice for a district court to expressly indicate when a dismissal falls into

one of the three categories.”).

22 WASHINGTON V. L.A. CTY. SHERIFF’S DEP’T

The final pair of dismissals, Nos. 2:12-CV-5873 and 2:12-

CV-7429, were made pursuant to Younger, which operates as

a jurisdictional bar to § 1983 relief, and does not result in a

strike for failure to state a claim. See supra Section II.B.

Moreover, because a court declines to exercise its jurisdiction

under Younger abstention, it typically cannot make a

substantive finding of frivolousness or maliciousness. See

Moore, 657 F.3d at 893 (“[T]here is nothing necessarily

frivolous or malicious in bringing an action for which the

court lacks jurisdiction.” (internal quotation marks and

citation omitted)). Even so, Washington’s second Younger-

barred complaint, No. 2:12-CV-7429, was not frivolous or

malicious by virtue of being repetitive, as Defendants

contend. Rather, it reflects a pro se litigant’s inartful attempt

to amend the first pleading, No. 2:12-CV-5873, by revising

his requested relief and causes of action to avoid the Younger

bar. Neither the initial reviewing court, nor the subsequent

court, made specific findings of frivolousness or

maliciousness, and we decline to do so now. As a result, we

conclude that Washington has not accrued any PLRA strikes

for his prior dismissals.

CONCLUSION

We hold that the district court improperly assessed the

existence of prior strikes against Washington. Accordingly,

we REVERSE and REMAND for the district court to assess

whether Washington is otherwise entitled to proceed with his

action in forma pauperis.