Kasey Hoffmann v. L. Pulido

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KASEY F. HOFFMANN, No. 18-15661

Plaintiff-Appellant,

D.C. No.

v. 1:18-cv-00209-

AWI-SKO

L. PULIDO, Correctional Officer at

CSATF-SP; C. SMITH, Correctional

Lieutenant at CSATF-SP, OPINION

Defendants-Appellees,

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND REHABILITATION,

Appellee-Intervenor.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted May 17, 2019

San Francisco, California

Filed July 8, 2019

Before: J. Clifford Wallace, Sandra S. Ikuta,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen

2 HOFFMANN V. PULIDO

SUMMARY*

Prisoner Civil Rights

The panel vacated the district court’s order dismissing a

prisoner 42 U.S.C. § 1983 lawsuit for failure to pay the

required filing fee, and remanded.

The district court determined that at least three of

plaintiff’s prior actions had been dismissed for failure to state

a claim or because they were frivolous. Accordingly, the

court reasoned that the Prison Litigation Act’s three-strikes

provision, 28 U.S.C. § 1915(g), barred plaintiff from bringing

an action in forma pauperis.

The panel held that only two of the three identified prior

dismissals qualified as strikes, and therefore, on the basis of

the record, plaintiff was not disqualified from filing an action

in forma pauperis.

The panel first rejected plaintiff’s argument that pursuant

to Williams v. King, 875 F.3d 500, 504–05 (9th Cir. 2017),

the dismissal of one of the prior actions did not qualify as a

strike because in that lawsuit only plaintiff had consented to

proceed before the magistrate judge and therefore the

magistrate judge lacked the authority to dismiss the

complaint. The panel held that raising that challenge in this

subsequent action amounted to a collateral attack on the

judgment, and that the previous judgment did not fall into

one of the narrowly circumscribed circumstances that would

*

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

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

HOFFMANN V. PULIDO 3

permit that judgment to be declared void pursuant to Federal

Rule of Civil Procedure 60(b)(4).

The panel next held that the dismissal of another of

plaintiff’s previous actions, in part for lack of standing, did

not properly qualify as a strike. The panel held that even if

certain claims in a prisoner’s lawsuit are dismissed as

frivolous or malicious, or for failure to state a claim, that

dismissal will not qualify as a strike if there are other claims

that are either not dismissed or are dismissed for different,

non-enumerated reasons. The panel held that because a

dismissal for lack of standing is a dismissal for lack of

subject-matter jurisdiction, the case as a whole was not

dismissed on the grounds enumerated in § 1915(g).

Accordingly, the panel concluded that the dismissal of that

action did not qualify as a strike. The panel vacated the

district court’s order dismissing plaintiff’s case, and

remanded for proceedings consistent with its opinion.

COUNSEL

Amir Ali (argued), Roderick & Solange, Washington, D.C.,

for Plaintiff-Appellant.

Misha D. Igra (argued), Supervising Deputy Attorney

General; Monica N. Anderson, Senior Assistant Attorney

General; Xavier Becerra, Attorney General; Office of the

Attorney General, Sacramento, California; for Appellee-

Intervenor.

4 HOFFMANN V. PULIDO

OPINION

CHRISTEN, Circuit Judge:

Kasey Hoffmann, a state prisoner, challenges the district

court’s order dismissing his § 1983 lawsuit claiming unlawful

retaliation in violation of the First Amendment.1 Hoffmann’s

complaint was dismissed for failure to pay the required filing

fee. The district court determined that at least three of

Hoffmann’s prior actions had been dismissed for failure to

state a claim or because they were frivolous. Accordingly,

the court reasoned that 28 U.S.C. § 1915(g) barred Hoffmann

from bringing an action in forma pauperis. Because we

determine that one of Hoffmann’s previous actions was not

dismissed for a qualifying reason under § 1915(g), we vacate

the district court’s order dismissing this case and remand for

proceedings consistent with this opinion.

I.

The Prison Litigation Reform Act (PLRA) instituted a

“three-strikes” rule in an effort to disincentivize frivolous

prisoner litigation. 28 U.S.C. § 1915. Pursuant to the PLRA,

once a prisoner has had three actions dismissed as frivolous

or malicious, or for failure to state a claim upon which relief

may be granted, that prisoner is no longer permitted to file an

action in forma pauperis unless the prisoner is in imminent

danger of serious physical injury. 28 U.S.C. § 1915(g).

1

Multiple spellings of the petitioner’s last name appear throughout

the record. We use “Hoffmann” because that is the spelling he used in

handwritten documents he prepared himself.

HOFFMANN V. PULIDO 5

Hoffmann is currently a state prisoner incarcerated in

California, where he has filed a number of actions

challenging aspects of his confinement. The complaint in this

case brings § 1983 claims against two prison guards for

allegedly retaliating against Hoffmann after he complained

about the prison’s kosher menu. There are, however, no

allegations that Hoffmann faces an imminent threat of serious

physical injury. Hoffmann filed this action using the pro se

“Civil Rights Complaint by a Prisoner” form, which

instructed him to identify prior actions he had filed. On the

form, Hoffmann disclosed that he had filed thirteen prior

actions—the actual number was closer to twenty-one—and he

specifically identified three of them. The district court

referred the case to a magistrate judge who identified a

different set of three prior actions filed by Hoffmann that had

been dismissed:

(1) In Hoffmann v. Jones, No. 2:15-CV-01735-MCE-KJN

(Jones), Hoffmann alleged that his free speech rights had

been infringed because he was having trouble receiving

letters and pictures from his family. Jones was dismissed as

duplicative of another action.

(2) In Hoffmann v. California Correctional Health Care

Services, No. 2:16-CV-01691-MCE-AC (CCHCS), Hoffmann

raised privacy claims based on the potential exposure of his

personal information. This action was dismissed on the basis

of sovereign immunity, lack of standing, and the court’s

decision not to exercise supplemental jurisdiction over the

related state-law claims Hoffmann included in the complaint.

(3) In Hoffmann v. Growden, No. 2:15-CV-01431-EFB

(Growden), Hoffmann claimed that he was falsely imprisoned

because he was not informed that he could post bail. After

6 HOFFMANN V. PULIDO

Hoffmann consented to proceed before a magistrate judge,

but before the government had granted its consent, Growden

was dismissed for failure to state a cognizable claim.

On the basis of the three prior dismissals identified by the

court, the magistrate judge issued an order asking Hoffmann

to show cause why recommendation should not issue to the

district court “to deny Plaintiff’s in forma pauperis

application and to dismiss this action without prejudice[.]”

Hoffmann failed to respond within the allotted twenty-one

days, and the district court dismissed the case for failure to

pay the required filing fee. The court explained that because

Jones, CCHCS, and Growden qualified as strikes under

§ 1915(g), Hoffmann was ineligible for in forma pauperis

status. The district court specifically ruled that the Growden

dismissal qualified as a strike, even though that case had been

dismissed by a magistrate judge who had not received both

parties’ consent to proceed and the district court’s order

followed our decision in Williams v. King, 875 F.3d 500,

504–05 (9th Cir. 2017) (holding that magistrate judges

require consent from all parties before they have authority to

issue dispositive rulings).

A few days after the dismissal of this case, the district

court received Hoffmann’s response to the show cause order.

The response appeared to have been held up in the prison’s

mail system, but it was timely submitted so the district court

considered it. Hoffmann contended that dismissals without

prejudice should not count as strikes under the PLRA; that the

“strike counter” resets if a prisoner is released and then

reincarcerated; and that the merit of some of his prior actions

should outweigh his strikes. The district court rejected all of

Hoffmann’s arguments and declined to vacate its order

dismissing Hoffmann’s complaint.

HOFFMANN V. PULIDO 7

Hoffmann filed this timely appeal. We review de novo

the district court’s application and interpretation of the

PLRA’s three strikes requirement. Andrews v. King,

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

II.

The State contends that Hoffmann forfeited the arguments

raised in this appeal because they were not raised in his pro

se response to the district court order to show cause. Our

review of new arguments is discretionary, Smith v. Marsh,

194 F.3d 1045, 1052 (9th Cir. 1999); see also United States

v. Northrop Corp., 59 F.3d 953, 957 n.2 (9th Cir. 1995), but

this is an appropriate circumstance for exercising our

discretion to review new arguments because, as a pro se

prisoner, Hoffmann was poorly situated to make relatively

complex arguments related to collateral attack and res

judicata. Further, his new arguments raise only legal

questions that do not involve or require any additional fact-

finding. Northrop Corp., 59 F.3d at 957 n.2 (“We can

exercise that discretion to consider a purely legal question

when the record relevant to the matter is fully developed.”).

We also note that the district court preemptively ruled on

Hoffmann’s argument that the magistrate judge lacked the

authority to dismiss Growden. Therefore, by reaching that

argument, we do not risk ruling on issues that the district

court did not have a chance to address. See Lebron v. Nat’l

R.R. Passenger Corp., 513 U.S. 374, 379 (1995) (“[W]e

would ordinarily feel free to address [the party’s new claim],

since it was addressed by the court below.”).

8 HOFFMANN V. PULIDO

III.

Hoffmann first argues that the dismissal of Growden does

not qualify as a prior strike.2 Specifically, he invokes our

recent decision in Williams to argue that the magistrate judge

lacked the authority to dismiss the Growden complaint, so the

dismissal order is effectively void and does not constitute a

strike under the PLRA. We disagree. For the reasons

explained below, we conclude that Hoffmann cannot escape

the consequences of the prior judgment in Growden through

an untimely collateral attack.

After Williams, there is no dispute that a magistrate judge

lacks the authority to dismiss a case unless all parties have

consented to proceed before the magistrate judge. Williams,

875 F.3d at 504–05. It is also undisputed that only Hoffmann

had consented to proceed in Growden when the magistrate

judge dismissed Hoffmann’s complaint. Nevertheless, raising

that challenge in this subsequent action amounts to a

collateral attack on the Growden judgment, and the Supreme

Court has long recognized that collateral attacks are

disfavored. See, e.g., Chicot Cty. Drainage Dist. v. Baxter

State Bank, 308 U.S. 371, 378 (1940). Collateral attacks run

afoul of the court’s strong interests in the finality of

judgments. See Henderson v. Kibbe, 431 U.S. 145, 154 n.13

(1977). “Even objections to subject-matter jurisdiction”—

like the challenge here—“must be raised while the lawsuit is

still pending; they may not be raised for the first time by way

of collateral challenge in a subsequent action.” City of S.

Pasadena v. Mineta, 284 F.3d 1154, 1157 (9th Cir. 2002); see

2

Hoffmann does not challenge the district court’s determination that

the dismissal in Jones counts as a strike under the PLRA.

HOFFMANN V. PULIDO 9

also Snell v. Cleveland, Inc., 316 F.3d 822, 827 (9th Cir.

2002) (per curiam).

We recognize that Federal Rule of Civil Procedure

60(b)(4) expressly allows for final judgments to be declared

void in some circumstances, including certain limited

situations in which the court lacked subject-matter

jurisdiction to enter the judgment in the first place. See

Yanow v. Weyerhaeuser S.S. Co., 274 F.2d 274, 278 n.7 (9th

Cir. 1958). But the scope of what constitutes a void judgment

is narrowly circumscribed, and judgments are deemed void

only where the assertion of jurisdiction is truly unsupported.

Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984); see also

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,

271 (2010) (“[A] judgment is void because of a jurisdictional

defect [only in the] exceptional case in which the court that

rendered judgment lacked even an ‘arguable basis’ for

jurisdiction.”).

The principle that a void judgment must lack even a

colorable basis ultimately stems from the court’s “jurisdiction

to determine jurisdiction.” Jones, 741 F.2d at 248. Because

federal courts are tribunals of limited jurisdiction, they have

both the inherent authority and the responsibility to consider

their own jurisdiction. In re Martinez, 721 F.2d 262, 264 (9th

Cir. 1983). If any jurisdictional foible could be the basis of

a voidness challenge, litigants would have unending

opportunities to second-guess a court’s legal determination as

to its jurisdiction outside of the typical appellate review

process, and the court’s interest in finality would be

undermined. Jones, 741 F.2d at 248 (“In the interests of

finality, the concept of void judgments is narrowly

construed[.]”).

10 HOFFMANN V. PULIDO

Applying these principles, we conclude that the judgment

in Growden does not fall into the narrowly circumscribed set

of void judgments described in Jones and United Student Aid

Funds, Inc. Prior to Williams, magistrate judges routinely

dismissed actions without receiving consent from the

government,3 so there was plainly an “arguable basis” for the

court’s assertion of jurisdiction in Growden. See United

Student Aid Funds, Inc., 559 U.S. at 271. At worst, the

magistrate judge in Growden made an error regarding the

contours of a magistrate judge’s authority pursuant to

28 U.S.C. § 636. Such an error is “not . . . equivalent to

acting with total want of jurisdiction and does not render the

judgment a complete nullity.” Jones, 741 F.2d at 248.

IV.

We next consider whether the dismissal in Hoffmann’s

CCHCS action properly qualifies as a PLRA strike. We

conclude that it does not.

To qualify as a strike under § 1915(g), a prisoner’s prior

case must have been dismissed because it was “frivolous,

malicious, or fail[ed] to state a claim upon which relief may

be granted[.]” Our court expressly adopted the District of

Columbia Circuit’s reasoning in Thompson v. DEA, 492 F.3d

428, 437 (D.C. Cir. 2007), and held that dismissals for lack of

3

See, e.g., Lester v. J.P. Morgan Chase Bank, 926 F. Supp. 2d 1081,

1085 n.2 (N.D. Cal. 2013); Ornelas v. De Frantz, No. 00-CV-1067-JCS-

PR, 2000 WL 973684, at *2 n.2 (N.D. Cal. 2000); see also Wilhelm v.

Rotman, 680 F.3d 1113, 1118 n.3, 1123 (9th Cir. 2012) (affirming

magistrate judge’s dismissal of action against unserved, and therefore

unconsenting, defendant).

HOFFMANN V. PULIDO 11

jurisdiction do not fall within the scope of the PLRA’s

enumerated grounds:

The text of § 1915(g) provides that a previous

case qualifies as a “strike” if it “was

dismissed on the grounds that it is frivolous,

malicious, or fails to state a claim upon which

relief may be granted.” “Surely, there is

nothing necessarily frivolous or malicious in

bringing an action for which the court lacks

jurisdiction.”

...

Like the District of Columbia Circuit, we

conclude that Congress intended for the three-

strikes rule to count 12(b)(6) dismissals but

not 12(b)(1) dismissals.

Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890,

893–94 (9th Cir. 2011) (quoting Thompson, 492 F.3d at 437).

Prior binding precedent also establishes that to qualify as

a strike for § 1915(g), a case as a whole, not just some of its

individual claims, must be dismissed for a qualifying reason.

See Andrews v. Cervantes, 493 F.3d 1047, 1054 (9th Cir.

2007); Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d

1048, 1057 (9th Cir. 2016) (“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.” (internal quotation marks

omitted)). In other words, even if certain claims in a

prisoner’s lawsuit are dismissed as frivolous or malicious, or

for failing to state a claim, that dismissal will not qualify as

12 HOFFMANN V. PULIDO

a PLRA strike if there are other claims that are either not

dismissed or are dismissed for different, non-enumerated

reasons.

In CCHCS, Hoffmann alleged that his privacy rights were

violated because an unencrypted, password-protected laptop

was stolen and it may have contained sensitive information

about certain inmates. Hoffman v. Cal. Corr. Health Care

Services, et al., 2017 WL 132057, at *2 (E.D. Cal. 2017).

The federal claims against the state agency defendant were

dismissed on sovereign immunity grounds, but the federal

claims against the remaining defendants were dismissed

because Hoffmann’s claims were too speculative to support

Article III standing. Id. at *2–3. The court declined to

exercise supplemental jurisdiction over the state-law claims.

Id. at *3.

Federal courts lack subject-matter jurisdiction over claims

asserted by litigants who lack standing. Cetacean Cmty. v.

Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (“A suit brought

by a plaintiff without Article III standing is not a case or

controversy, and an Article III federal court therefore lacks

subject matter jurisdiction over the suit.” (internal quotation

marks omitted)). Because Hoffmann’s claims in CCHCS

were dismissed, at least in part, for lack of standing, and

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, we conclude that the dismissal of the CCHCS

action does not qualify as a PLRA strike.

Only two of the prior dismissals identified by the

magistrate judge qualify as strikes, so on the basis of the

record before us, Hoffmann is not disqualified from filing an

HOFFMANN V. PULIDO 13

action in forma pauperis. 28 U.S.C. § 1915(g). We therefore

vacate the district court’s order dismissing Hoffmann’s case,

and remand for proceedings consistent with this opinion.4

VACATED AND REMANDED.

4

Hoffmann does not contest the magistrate judge’s ruling that the

Jones dismissal qualifies as a strike, and the district court has not

determined whether any of Hoffmann’s other prior dismissals qualify. We

leave that determination to the district court to reach in the first instance.

We DENY as moot the government’s motion for judicial notice. See

Turnacliff v. Westly, 546 F.3d 1113, 1120 n.4 (9th Cir. 2008).