Silva v. Di Vittorio
2011 U.S. App. LEXIS 19610
| 9th Cir. | 2011Background
- Silva, a Washington State prisoner, filed a pro se §1983 complaint in 2007 alleging First and Fourteenth Amendment access-to-courts violations and state-law claims.
- District court initially denied IFP, then counted strikes under §1915(g) and dismissed, but later allowed IFP after reconsideration based on appellate status of prior cases.
- In his first amended complaint (2008), Silva added multiple defendants and asserted access-to-courts, retaliation, RICO, and conversion claims.
- The district court dismissed Silva's amended complaint for failure to state a claim, granting prejudice and no leave to amend for RICO and related claims.
- On appeal, the Ninth Circuit reversed in part (access-to-courts and retaliation) and remanded for further proceedings, affirmed as to RICO, and remanded state-law conversion for potential supplemental-jurisdiction handling.
- Judge O'Scannlain filed a dissent addressing PLRA three-strikes timing and IFP concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a district court dismissal counts as a strike only when final | Silva contends strikes accrue at dismissal, not only final appeal. | Defendants argue finality is not required to count strikes and that dismissals can count earlier. | Finality required for a strike; dismissals before final appeal do not count. |
| Right of access to the courts beyond pleading stage | Silva asserts ongoing right to litigate without active interference and to meaningful access throughout litigation. | Defendants argue right ends at pleading, with no affirmative duty to assist after filing. | Prisoners have a right to litigate challenges to sentences/conditions without active interference; remanded for further proceedings on access claim. |
| Retaliation claim sufficiency | Silva pleads specific transfers, file seizures, and adverse actions tied to First Amendment activity. | Defs argued lack of specificity and improper pleading standard. | Retaliation claim sufficient; reinstated and remanded for further proceedings. |
| RICO claim viability and leave to amend | If given leave to amend, Silva could cure deficiencies in asserting predicate acts. | RICO allegations centered on lawful transportation; predicate acts not stated. | RICO claim properly dismissed with prejudice; leave to amend not warranted. |
Key Cases Cited
- Bounds v. Smith, 430 U.S. 817 (1977) (right to meaningful access to courts; provision of libraries/assistance)
- Lewis v. Casey, 518 U.S. 343 (1996) (limits on right to access; pleading stage and active interference distinctions)
- Cornett v. Donovan, 51 F.3d 894 (1995) (library/assistance during pleading stage; interference claims distinguished)
- Thompson v. DEA, 492 F.3d 428 (D.C. Cir. 2007) (finality requirement for 1915(g) strikes; counts strikes only after final appeal)
- Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996) (strikes include only exhausted or waived appeals)
- Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775 (10th Cir. 1999) (three strikes not final until appeals exhaustion)
- Campbell v. Davenport Police Dep't, 471 F.3d 952 (8th Cir. 2006) (three-strikes counted after exhaustion of appeal)
- Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172 (10th Cir. 2011) (finality timing for §1915(g) strikes)
- Jones v. Bock, 549 U.S. 199 (2007) (standard for pleading; PLRA exhaustion context)
- Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (pleading standards and amendment considerations)