Moore v. Maricopa County Sheriff's Office

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARRY LEE MOORE,  No. 10-16736

Plaintiff-Appellant,

D.C. No.

v.

 2:10-cv-01495-

MARICOPA COUNTY SHERIFF’S GMS-JRI

OFFICE,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Argued and Submitted

August 8, 2011—San Francisco, California

Filed September 13, 2011

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Graber

17445

MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17447

COUNSEL

Steven H. Goldblatt, Director, Katherine Bushman, Supervis-

ing Attorney, and Adam Bellotti, Certified Law Student,

Georgetown University Law Center, Appellate Litigation Pro-

gram, Washington, D.C., for the plaintiff-appellant.

17448 MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE

J. Scott Dutcher, Deputy County Attorney, Maricopa County

Office of General Litigation Services, Phoenix, Arizona, for

the defendant-appellee.

OPINION

GRABER, Circuit Judge:

Plaintiff Larry L. Moore is a frequent filer of lawsuits and

is indigent. In this action, Plaintiff seeks money damages and

other relief against Defendant Maricopa County Sheriff’s

Office resulting from alleged mistreatment of Plaintiff when

he was a prisoner. As Plaintiff had done several times before,

he sought to proceed in forma pauperis (“IFP”) in this case.

The district court held that four previous actions filed by

Plaintiff qualified as “strikes” under 28 U.S.C. § 1915(g) and,

therefore, denied Plaintiff IFP status. Plaintiff timely appeals.

Because only two of the four dismissals identified by the dis-

trict court qualify as “strikes” under the statute, we reverse

and remand for further proceedings.

“Plaintiffs normally must pay $350 to file a civil complaint

in federal district court, but 28 U.S.C. § 1915(a)(1) allows the

district court to waive the fee, for most individuals unable to

afford it, by granting IFP status.” Andrews v. Cervantes, 493

F.3d 1047, 1051 (9th Cir. 2007) (citation omitted). All per-

sons, not just prisoners, may seek IFP status. Id. at 1052 n.1.

But a prisoner faces an additional hurdle. In a statutory pro-

vision “nicknamed the ‘three-strikes rule,’ ” id. at 1049, Con-

gress prohibited the grant of IFP status to a prisoner if he or

she had filed three or more prior actions, as a prisoner, that

were dismissed for certain specified reasons. The provision

states:

In no event shall a prisoner bring a civil action or

appeal a judgment in a civil action or proceeding

MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17449

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 pris-

oner is under imminent danger of serious physical

injury.

28 U.S.C. § 1915(g).

Here, the district court held that four of Plaintiff’s previ-

ously dismissed actions qualify as “strikes.” Plaintiff argues

that the district court erred because only two of the previously

dismissed actions qualify as “strikes.” Before reaching the

merits of Plaintiff’s argument, we must consider whether this

appeal is moot.

A. Mootness

[1] While this appeal was pending, Plaintiff was released

from jail on parole. Accordingly, Plaintiff is no longer a “pris-

oner” for purposes of § 1915(g), and the three-strikes rule no

longer applies to actions that he files. See 28 U.S.C. § 1915(h)

(defining the term “prisoner,” which does not include persons

released on parole). Defendant argues that this appeal is moot

because, as a non-prisoner, Plaintiff could re-file this action

and seek IFP status unhindered by the three-strikes rule.1

[2] Defendant concedes that the underlying action—an

action for damages resulting from alleged mistreatment—is

1

Defendant also argues that this appeal is moot because Plaintiff cannot

prevail on the merits of his claims. The issue on appeal is only whether

§ 1915(g) prohibits Plaintiff’s proceeding IFP; resolution of that issue is

a live controversy even if Plaintiff ultimately were to lose on the merits

of his underlying claims. We express no opinion on the merits of Plain-

tiff’s underlying claims.

17450 MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE

not moot. Additionally, if we rule in Plaintiff’s favor on

appeal, this action will proceed to the next stage on remand.

Defendant’s mootness argument hinges on the fact that Plain-

tiff has a roughly equivalent alternative avenue to reach the

same stage of litigation: Plaintiff could re-file this action as a

non-prisoner. Because he is no longer a prisoner, Plaintiff

automatically would clear the § 1915(g) hurdle.2

[3] Plaintiff asserts that filing a new action would not pre-

serve his rights in the same manner as the current action does

because, for example, the statute of limitations may have run.

We need not consider those arguments, however, because a

more fundamental flaw exists in Defendant’s mootness argu-

ment. When considering whether a case is moot, we ask

whether we can grant any effective relief “within the confines

of the case itself.” Tur v. YouTube, Inc., 562 F.3d 1212, 1214

(9th Cir. 2009) (per curiam) (emphasis added); see Comm’r

v. Pattullo (In re Pattullo), 271 F.3d 898, 901-02 (9th Cir.

2001) (order) (“To have jurisdiction, we must be able to grant

effective relief within the boundaries of the present case . . . .”

(emphasis added)). Because the underlying substantive claims

are not moot and because a ruling in favor of Plaintiff would

permit those claims to proceed, we can provide effective

relief, and this appeal is not moot. If the district court erred

in dismissing the case, Plaintiff is entitled to continue to liti-

gate this very case.3 That is effective relief even if, in theory,

some other relief also would be effective. Defendant has not

met its heavy burden of establishing mootness.

2

This is not to say that Plaintiff necessarily qualifies for IFP status. That

determination would be up to the district court to determine, if properly

requested, in the first instance. See also 28 U.S.C. § 1915(e)(2) (requiring

the district court to dismiss a case “at any time” if certain conditions are

met).

3

We emphasize that, on remand, the district court should reconsider

anew any IFP application. See supra note 2.

MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17451

B. Scope of the Three-Strikes Rule

Plaintiff makes a two-step argument about the rule. First,

he argues that a dismissal for lack of subject-matter jurisdic-

tion does not qualify as a “strike” under § 1915(g). Second,

Plaintiff argues that, because two of the four dismissals identi-

fied by the district court were for lack of subject-matter juris-

diction, the district court erred in denying him IFP status. We

review de novo “[t]he district court’s interpretation and appli-

cation of § 1915(g).” Andrews v. King, 398 F.3d 1113, 1118

(9th Cir. 2005).

1. Dismissal for Lack of Subject-Matter Jurisdiction and

§ 1915(g)

[4] The question whether a dismissal for lack of subject-

matter jurisdiction constitutes a “strike” for purposes of

§ 1915(g) is an issue of first impression in this circuit. In a

published opinion, the District of Columbia Circuit held that

a dismissal for lack of subject-matter jurisdiction does not

qualify as a “strike” for purposes of § 1915(g). Thompson v.

DEA, 492 F.3d 428, 437 (D.C. Cir. 2007). We agree with, and

adopt, its reasoning and conclusion.

[5] 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.” Thompson, 492 F.3d at 437; see also

id. (“[B]ecause understanding federal court jurisdiction is no

mean feat even for trained lawyers, creating a rule that

mechanically treats dismissals for lack of jurisdiction as

strikes would pose a serious risk of penalizing prisoners pro-

ceeding in good faith and with legitimate claims.”).

[6] “Equally clearly, a dismissal for lack of jurisdiction is

not the same as a dismissal for failure to state a claim: in

17452 MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE

enacting section 1915(g), Congress chose to mirror the lan-

guage of Federal Rule of Civil Procedure 12(b)(6), not

12(b)(1).” Id.; cf. Andrews, 398 F.3d at 1121 (“We have held

that the phrase ‘fails to state a claim on which relief may be

granted,’ as used elsewhere in § 1915, ‘parallels the language

of Federal Rule of Civil Procedure 12(b)(6).’ ” (quoting Bar-

ren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

(order))). The three-strikes rule counts a dismissal as a strike

if the court held that the action “fails to state a claim upon

which relief may be granted.” 28 U.S.C. § 1915(g). Other

than verb tense, that text is identical to the text of Federal

Rule of Civil Procedure 12(b)(6): “failure to state a claim

upon which relief can be granted.” Nowhere does the three-

strikes rule mention “lack of subject-matter jurisdiction,” the

text of Rule 12(b)(1). 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.4 See

Atl. Sounding Co. v. Townsend, 129 S. Ct. 2561, 2573 (2009)

(“We assume that Congress is aware of existing law when it

passes legislation . . . .” (citations and internal quotation

marks omitted)).

2. Plaintiff’s Previous Dismissals

Plaintiff argues that two of the four previous dismissals

identified by the district court do not qualify as strikes

because they were dismissed for lack of subject-matter juris-

diction. In both cases, Plaintiff filed a complaint but failed to

select a valid jurisdictional basis for the action on a form

labeled “CIVIL RIGHTS COMPLAINT BY A PRISONER.”

In one case, he left the jurisdictional basis blank. In the sec-

ond case, he checked the box “Other” and wrote in “Maricopa

County, Superior Court in Arizona.” In separate written

orders, the district court dismissed the actions.

4

We note that, like the defendant in Thompson, Defendant here does not

challenge that legal conclusion. See 492 F.3d at 437 (stating that “the gov-

ernment wisely conceded that dismissals for lack of jurisdiction do not

count as strikes within the meaning of section 1915(g)”).

MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17453

In the first case, the district court’s order stated:

III. Lack of Jurisdiction

Federal courts have limited jurisdiction, and limi-

tations on the court’s jurisdiction must neither be

disregarded nor evaded. Owen Equip. & Erection

Co. v. Kroger, 437 U.S. 365, 374 (1978). The Court

is obligated to determine sua sponte whether it has

subject matter jurisdiction. See Valdez v. Allstate Ins.

Co., 372 F.3d 1115, 1116 (9th Cir. 2004). See also

Fed. R. Civ. P. 12(h)(3) (“If the court determines at

any time that it lacks subject-matter jurisdiction, the

court must dismiss the action.”).

Rule 8(a) of the Federal Rules of Civil Procedure

requires that “[a] pleading that states a claim for

relief must contain: (1) a short and plain statement of

the grounds for the court’s jurisdiction . . . .” In order

to proceed in federal court, Plaintiff must demon-

strate some right of action and legal entitlement to

the damages he seeks. In a case challenging his con-

ditions of confinement while a prisoner, the most

likely source of a right to sue is 42 U.S.C. § 1983.

The Court has jurisdiction over such cases pursuant

to 28 U.S.C. § 1343(a)(3).

Plaintiff has not alleged that this case arises pursu-

ant to 42 U.S.C. § 1983 or that the Court has juris-

diction pursuant to 28 U.S.C. § 1343(a)(3). Instead,

he has left the “Jurisdiction” section of the court-

approved form blank. See Watson v. Chessman, 362

F. Supp. 2d 1190, 1194 (S.D. Cal. 2005) (“The court

will not . . . infer allegations supporting federal juris-

diction; federal subject matter [jurisdiction] must

always be affirmatively alleged.”). Therefore, the

Court will dismiss Plaintiff’s Complaint without

prejudice.

17454 MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE

....

IT IS ORDERED:

....

(3) The Complaint (Doc. #1) is dismissed without

prejudice for lack of subject matter jurisdiction.

Plaintiff has 30 days from the date this Order is filed

to file a first amended complaint in compliance with

this Order.

(Alterations in original; boldface type omitted.) The district

court’s order in the second case was identical, with one

exception. Instead of stating that Plaintiff did not specify a

jurisdictional basis, the order stated: “He has alleged only that

the Court has jurisdiction pursuant to ‘Maricopa County,

Superior Court in Arizona.’ That is a statement describing a

court, not a jurisdictional basis.” In both cases, Plaintiff failed

to amend within 30 days.

The district court’s orders are clear: The actions were dis-

missed “for lack of subject matter jurisdiction.” The district

court clearly explained that it must inquire into its jurisdiction

and, because Plaintiff did not specify a valid jurisdictional

basis, it must dismiss for lack of subject-matter jurisdiction

because a jurisdictional basis cannot be inferred.

Defendant does not dispute that the district court dismissed

for lack of jurisdiction. Instead, in its response brief on

appeal, Defendant argues that the cases “were dismissed for

lack of subject matter jurisdiction and for [Plaintiff’s] failure

to state a claim.” Defendant supports that position by refer-

ence to certain text in the district court’s reasoning that states

that, because it lacked subject-matter jurisdiction, the action

was dismissed for failure to state a claim.

Viewed in isolation, those portions of the district court’s

reasoning could be interpreted as having dismissed the action

MOORE v. MARICOPA COUNTY SHERIFF’S OFFICE 17455

for both reasons—lack of jurisdiction and failure to state a

claim. Ordinarily, one could view the holdings as alternative

holdings, as Defendant urges. In these circumstances, how-

ever, it is not possible for the district court to have made this

type of alternative holding. A federal court cannot assume

subject-matter jurisdiction to reach the merits of a case. Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).

And the Supreme Court has specifically instructed that a dis-

trict court must first determine whether it has jurisdiction

before it can decide whether a complaint states a claim. See

Bell v. Hood, 327 U.S. 678, 682 (1946) (“[I]t is well settled

that the failure to state a proper cause of action calls for a

judgment on the merits and not for a dismissal for want of

jurisdiction. Whether the complaint states a cause of action on

which relief could be granted is a question of law . . . [that]

must be decided after and not before the court has assumed

jurisdiction over the controversy.”).

[7] The operative portions of the district court’s orders are

clear: The actions were dismissed for lack of subject-matter

jurisdiction. While there may be some ambiguity as to the

court’s reasoning, we will not interpret that ambiguity in a

manner that conflicts with a clear and longstanding Supreme

Court directive. The only reasonable interpretation of the dis-

trict court’s orders is that the court dismissed the cases for

lack of subject-matter jurisdiction.

[8] Because only two of the four previous dismissals iden-

tified by the district court qualify as “strikes” under

§ 1915(g), we hold that the district court erred in determining

that the three-strikes rule prohibits the grant of IFP status to

Plaintiff. We remand to the district court for further proceed-

ings consistent with this opinion.

REVERSED and REMANDED.