Thomas Richey v. D. Dahne, 2015 U.S. App. LEXIS 21222

Background

Richey, a Washington state prisoner, filed grievances complaining a guard denied yard/shower/clean underwear and described the guard as an “extremely obese Hispanic female”; grievances were rejected for inappropriate language.
After administrative rejection, prison official Dahne withdrew Richey’s grievance; Richey sued under § 1983 for retaliation/First Amendment claims.
The district court dismissed Richey’s complaint for failure to state a claim and revoked IFP; Richey appealed and a Ninth Circuit motions panel granted IFP pending appeal.
Dahne moved to revoke IFP under the PLRA’s “three strikes” rule, arguing Richey already had at least three prior dismissals qualifying as strikes (Thaut I, Thaut II, Thaut III, and the district dismissal here).
The Ninth Circuit reviewed whether the various prior dismissals qualified as strikes and whether a prisoner may proceed IFP on appeal from a district court’s dismissal that would be his third strike.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Richey had accumulated three PLRA strikes before filing this appeal	Richey argued prior dismissals did not amount to three strikes (some were not proper § 1915(g) strikes)	Dahne argued Richey had four prior dismissals/countable strikes and so was ineligible for IFP	Court held Richey had not accumulated three strikes before the appeal; only Thaut II and Thaut III counted, so he was eligible for IFP on this appeal
Whether Thaut I dismissal counted as a § 1915(g) strike	Richey argued Thaut I was not a strike because dismissal was on exhaustion grounds supported by outside evidence (summary judgment), and reasoning was not unanimous	Dahne argued Thaut I was a dismissal that had been characterized as frivolous/nonmeritorious and should count as a strike	Court held Thaut I was not a § 1915(g) strike (it was effectively summary judgment on exhaustion and magistrate reasoning was not binding)
Whether a district-court dismissal that would be a prisoner’s third strike bars IFP status for an appeal of that dismissal	Richey argued PLRA should permit IFP on appeal of a third-strike dismissal so appellate review is possible	Dahne (and siding authority) argued Coleman means prior dismissals count as strikes even if appealed, so IFP can be denied	Court held Coleman does not bar IFP for an appeal from a third-strike dismissal in the same action; a district-court third-strike dismissal is not a “prior occasion” for purposes of denying IFP on that appeal
Whether an appeal panel’s denial of IFP (and later dismissal for nonpayment) counts as a strike	Richey argued his appeals should not all count as strikes in the sequence asserted	Dahne argued the motions panel’s finding of frivolousness and subsequent dismissal for nonpayment (Thaut III) counted as a strike	Court held Thaut III (denial of IFP because appeal deemed frivolous and later dismissal for nonpayment) did count as a strike

Key Cases Cited

Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (held a prior dismissal counts as a § 1915(g) strike even if it is the subject of an appeal; left open whether IFP is available for appeal from a third-strike dismissal)
O’Neal v. Price, 531 F.3d 1146 (9th Cir. 2008) (denial of IFP as frivolous is treated as a dismissal for § 1915(g) strike purposes)
Andrews v. King, 398 F.3d 1113 (9th Cir. 2005) (burden on prisoner to show § 1915(g) does not preclude IFP; standard of review for strikes)
Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc) (failure-to-exhaust should be handled under the Federal Rules framework; distinguishes dismissal-on-face vs. consideration of extrinsic evidence)
Silva v. Di Vittorio, 658 F.3d 1090 (9th Cir. 2011) (prior Ninth Circuit rule on when a dismissal becomes a strike pending appeal; noted as superseded by Coleman)
Neitzke v. Williams, 490 U.S. 319 (1989) (defines frivolousness under the IFP statute as lacking any legal issues arguable on the merits)