O'NEAL v. Price

THOMAS, Circuit Judge,

concurring in part and dissenting in part:

I join the majority’s decision that we have jurisdiction to consider O’Neal’s appeal even though the district court certified that the appeal was not taken in good faith. Additionally, I join the majority’s decision that O’Neal v. Parriott, Civ. No. 99-8370 (C.D.Cal.), constituted a “strike” under the Prisoner Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915 (g), because that case was dismissed for failure to state a claim.

However, I must respectfully dissent from the majority’s holding that the denial of an application to proceed in forma pau-peris constitutes a strike. Thus, I disagree that O’Neal v. Schelage, No. 94-4594 (C.D.Cal.) and O’Neal v. Cal. State Prison, No. 00-8414 (C.D.Cal.) constituted strikes under 28 U.S.C. § 1915g.

I

As T.S. Eliot instructed:

So first, your memory I’ll jog

And say: A CAT IS NOT A DOG. 1

Just as a cat is not a dog, a simple “application” to have filing fees waived does not constitute a formal civil “action” in federal court. Thus, the denial of an application to proceed in forma pauperis does not constitute a dismissal of the underlying action. As such, it cannot constitute a strike under the PLRA.

A civil “action” is a well understood term of art under the Federal Rules of Civil Procedure.

[A]n “action” is the formal and ordinary means by which parties seek legal and/or equitable relief before a court of law through the filing of a formal complaint, triggering the full array of legal, procedural, and evidentiary rules governing the process by which a court adjudicates the merits of a dispute.

S.E.C. v. McCarthy, 322 F.3d 650, 657 (9th Cir.2003).

In contrast, as we noted:

“Applications,” however, are different. An “application” is merely a “motion.” Black’s Law Dictionary 96 (7th ed.1999). A “motion” is defined as, “[a] written or oral application requesting a court to make a specified ruling or order.” Id. at 1031. An “application” is not a “lawsuit” or a “formal complaint.” It does not necessarily include or trigger “all *1157 the formal proceedings in a court of justice” as does the filing of an “action.” See id. at 28.

Id.

Section 1915(g) prohibits prisoners from bringing in forma pauperis actions or appeals “if the prisoner has, on 3 or more prior occasions, ... brought an action or appeal in a court of the United States that was dismissed ...” 28 U.S.C. § 1915 (g) (emphasis added). A “strike,” then, requires two steps: (1) an action must be brought and (2) that action must be subsequently dismissed. I agree that our case law establishes that a prisoner brings an action when he files an in forma pauperis application and tenders the complaint to the district court. However, I do not agree that the underlying action is dismissed when a district court denies the prisoner leave to proceed in forma pauper-is.

The Supreme Court has distinguished between a “dismissal” of an application for leave to proceed in forma pauperis and a dismissal of the underlying action. In Denton v. Hernandez, the Court held that “[b]ecause a § 1915(d) dismissal is not a dismissal on the merits, but rather an exercise of the court’s discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations.” 504 U.S. 25, 34 , 112 S.Ct. 1728 , 118 L.Ed.2d 340 (1992). Section 1915(g) defines a “strike” as an “action ... that was dismissed.... ” The best interpretation is that this language refers to a “dismissal on the merits.”

Such an interpretation is not contrary to the meaning of “brought an action” in Section 1915(g). While the action may be brought when the complaint is tendered to the court clerk, the action constitutes the underlying claim or claims, not the application to proceed in forma pauperis. This section is consistent with Federal Rule of Civil Procedure 3, which provides: “A civil action is commenced by filing a complaint with the court.”

Thus, when the court denies the prisoner leave to proceed in forma pauperis, all the court has “dismissed” is the in forma pauperis application; the court has not dismissed the underlying action. Indeed, the court cannot dismiss the underlying action at that point, because as the Supreme Court held in Denton, “the dismissal [of an in forma pauperis application] does not prejudice the filing of a paid complaint making the same allegations.” 504 U.S. at 34 , 112 S.Ct. 1728 . See also Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 787 (7th Cir.1995) (“all that section 1915(d) authorizes the district court to do if it determines that the suit is frivolous is to deny leave to proceed in forma pauperis.”). 2 In short, the prisoner has the right to proceed with the action regardless of the court’s ruling on his in forma pauperis application. If the prisoner elects to continue the litigation, the question of a dismissal on the pleadings will be evaluated under Rule 12 of the Federal Rules of Civil Procedure. 3

*1158 This analysis comports with distinctions our court has drawn between the dismissal of an action and dismissal of a claim. See, e.g., WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1135-36 (9th Cir.1997) (en banc) (holding that an order dismissing a complaint with leave to amend is not a final appealable order and distinguishing such an order from an order dismissing the action); Montes v. United States, 37 F.3d 1347, 1350 (9th Cir.1994) (“[T]his Court has traditionally drawn a distinction between the dismissal of the complaint and the dismissal of the underlying action.”); Martinez v. Flores, 299 F.2d 888, 889 (9th Cir.1961) (“Twice the district court has dismissed the complaint, but never the action. There is a difference.”).

We have identified such distinctions specifically in the context of the PLRA:

As a preliminary matter, we take note of the crucial distinction between dismissing an action and dismissing a complaint. Dismissal of an entire action constitutes a final judgment by a district court. In contrast, when a district court dismisses a complaint for failure to state a claim, granting leave to amend the defective complaint is routine.

Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir.2005) (internal citations omitted).

In Lira we clarified that this distinction holds in the context of prisoner civil rights litigation under the PLRA. Id. at 1169-70 . Further, we noted that one of the consequences, under the PLRA, of a court dismissing an entire action, as opposed to merely dismissing a claim, is that dismissal of an action may constitute a “strike” under § 1915(g). Id. In other words, dismissal of a claim does not constitute a strike.

The illogic of equating denials of in for-ma pauperis applications with dismissals of civil actions is demonstrated by a 8700 simple hypothetical. Suppose a prisoner is denied leave to file in forma pauperis by the district court, but elects to pay the filing fee and proceed. Under the government’s thesis (as acknowledged at oral argument), if his complaint is subsequently dismissed, then he will have received two strikes for filing one action. He will have earned his first strike when the court denied his application to proceed in forma pauperis, and his second when the court dismissed his complaint. But his opportunities for striking out completely in one action continue. He can seek to proceed in forma pauperis on appeal. If his request were denied, he presumably would earn another strike. Given that the defendants often are not even served if the case is dismissed at a screening phase, the pro se prisoner will have unwittingly hit into an unassisted triple play.

Another hypothetical underscores the point. Suppose a prisoner is denied in forma pauperis status, elects to pay the fees and proceed, and then successfully obtains a judgment against a defendant. Under the government’s theory, he then will have earned a strike even though he was ultimately granted judgment on the merits in his favor.

If Congress had intended denials of in forma pauperis applications to constitute strikes, it could have said so specifically. Instead, it chose to use the word “action,” which has a clearly understood meaning in the law. As we have noted in other contexts, the words “application” and “action” are not synonymous. McCarthy, 322 F.3d at 657 .

II

The PLRA has the laudable goal of screening frivolous prisoner lawsuits early *1159 in the litigation and deterring prisoners from filing multiple frivolous actions. The PLRA and the power of courts to enter pre-filing orders against vexatious litigants provide ample means of controlling frivolous and malicious prisoner litigation without distorting our fundamental concept of what constitutes a civil action. A denial of leave to proceed in forma pauperis does not result in the entry of a judgment dismissing the action. It has no effect on whether the prisoner can proceed with the action. It has no res judicata effect. Therefore, a denial of leave to proceed in forma pauperis cannot constitute a “strike” under § 1915(g).

For these reasons, I must respectfully dissent.

. T.S. Eliot, "The Ad-Dressing of Cats,” Old Possum’s Book of Practical Cats, 53 (Harcourt Brace Jovanovich 1982) (1939) (emphasis in original); Andrew Lloyd Weber and T.S. Eliot, “The Ad-Dressing of Cats,” Cats (1982 Original Broadway Cast), (Decca Broadway 1993).

. In fact, the district court may not dismiss an action for failure to pay the fees if the prisoner has no funds with which to pay them. See 28 U.S.C. § 1915 (b)(4); see also Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir.2002) (district court cannot dismiss in forma pau-peris prisoner’s case based on his failure to pay initial fee when his failure to pay is due to lack of funds available to him when payment is ordered).

. Even when in forma pauperis status is granted, the PLRA requires the complaint to be dismissed prior to service of process if it is frivolous or malicious, fails to state a claim, or seeks monetary damages from defendants who are immune from suit. See 28 U.S.C. § 1915 (e)(2); see also Franklin v. Murphy, 745 F.2d 1221, 1226-27 (9th Cir.1984). If the government's theory that action on in forma pauperis applications constituted binding actions on the merits is carried to its logical conclusion, then the district court’s grant of in forma pauperis status necessarily would preclude a later dismissal of the case *1158 as frivolous or malicious. That result clearly would be contrary to the statute. The PLRA recognizes the distinction between denials and grants of in forma pauperis applications and dismissals of the action.