Tommie Harris v. K. Harris
935 F.3d 670
9th Cir.2019Background
- Plaintiff Tommie Lee Harris, a state prisoner, filed a § 1983 excessive-force suit and sought in forma pauperis (IFP) status. The district court revoked IFP, finding he had accrued three PLRA "strikes" under 28 U.S.C. § 1915(g).
- Harris conceded two prior dismissals counted as strikes but argued two additional prior cases — Harris v. Bick (E.D. Cal.) and Harris v. Nielsen (E.D. Cal.) — did not qualify as strikes.
- In Bick, the district court dismissed Harris’s federal Eighth Amendment claims for failure to state a claim and declined to exercise supplemental jurisdiction over remaining state-law claims; the Ninth Circuit affirmed that disposition on appeal.
- In Nielsen, the district court dismissed one defendant for failure of the Marshal to effect service and dismissed the remaining defendants on quasi-judicial immunity grounds; Harris appealed.
- The Ninth Circuit panel reviewed whether dismissals for (a) refusal to exercise supplemental jurisdiction, (b) failure to serve, or (c) immunity-based dismissals qualify as PLRA strikes under § 1915(g).
- The court held none of those dismissal grounds are among the enumerated strike grounds in § 1915(g); because Harris had only two qualifying strikes, the panel reversed the revocation of IFP and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a dismissal caused by a district court declining to exercise supplemental jurisdiction over state-law claims counts as a § 1915(g) strike | Bick should not be a strike because the dismissal of state claims followed a dismissal of federal claims and reflects a refusal to exercise supplemental jurisdiction, not dismissal for frivolousness, maliciousness, or failure to state a claim | Defendant urged such dismissals should count to prevent litigants from "strike-proofing" meritless suits by adding state claims | Held: Declining supplemental jurisdiction is not an enumerated § 1915(g) ground; Bick is not a strike (following Fourstar) |
| Whether dismissal for failure to serve a defendant converts the entire action into a § 1915(g) strike | Nielsen should not be a strike because one defendant was dismissed for failure to effect service, which is not frivolous, malicious, or failure to state a claim | Defendant argued dismissal of one defendant for procedural reasons should not prevent the case counting as a strike if other claims were dismissed for qualifying reasons | Held: A dismissal for failure to serve is not an enumerated ground, and dismissal of even one claim for an unenumerated reason saves the whole case from being a strike |
| Whether dismissals based on quasi-judicial (immunity) grounds count as § 1915(g) strikes | Nielsen’s dismissal on quasi-judicial immunity should not be a strike because immunity is not among the enumerated strike grounds | Defendant contended immunity-based dismissals effectively amount to failure-to-state dismissals and should count as strikes | Held: Immunity-based dismissals generally are not strikes; Congress omitted immunity from § 1915(g) intentionally (rare exceptions exist only when immunity is clear on the face of the complaint) |
| Whether the district court correctly revoked Harris’s IFP status based on three prior strikes | Harris argued he had only two qualifying strikes so IFP should remain | State argued there were three strikes supporting revocation | Held: Harris had only two qualifying strikes; IFP revocation reversed and remanded |
Key Cases Cited
- Andrews v. King, 398 F.3d 1113 (9th Cir. 2005) (burden-shifting framework for proving PLRA strikes and appealability of IFP denial)
- El-Shaddai v. Zamora, 833 F.3d 1036 (9th Cir. 2016) (look to substance of dismissal; rare instances where affirmative defenses on face of complaint may produce strikes)
- Fourstar v. Garden City Grp., Inc., 875 F.3d 1147 (D.C. Cir. 2017) (declining supplemental jurisdiction dismissals are not PLRA strikes)
- Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (assess strike status by evaluating the case as a whole)
- Knapp v. Hogan, 738 F.3d 1106 (9th Cir. 2013) (dismissal’s reasons, not procedural label, control strike analysis)
- Russello v. United States, 464 U.S. 16 (1983) (interpretive canon: inclusion/omission in one statutory provision implies intent)
- Castillo-Alvarez v. Krukow, 768 F.3d 1219 (8th Cir. 2014) (immunity-based dismissals are not PLRA strikes)
- Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (discussing rare clear-on-face-of-complaint failures that may qualify as strikes)
- Mills v. Fischer, 645 F.3d 176 (2d Cir. 2011) (judicial-immunity dismissal counted as strike where claim was frivolous)
- Hafed v. Federal Bureau of Prisons, 635 F.3d 1172 (10th Cir. 2011) (immunity dismissal may be a strike if prisoner’s own allegations establish immunity on face of complaint)