*1 court, cases, America, Intervenor, appropriate to United the district States stays, .stays Landis or to issue issue doctrines, such as River other Colorado KING, Appeals Coordinator; V.R. S. District v. Conservation United Water Cervantes; Dickinson; T. Ed Alame States, U.S. S.Ct. dia, CDC; McPhereson, Director of (1976). only that a L.Ed.2d 483 We hold Officer; Fields, Lt., Correctional De stay improper Landis is the circum- fendants-Appellees. power stances of this case—where the No. 02-17440. court to decide whether the district clear, stay applies is automatic where the United of Appeals, States Court stay automatic is inapplicability of the also Ninth Circuit. clear, proceeding and where the Argued July and Submitted 2004. decide, bankruptcy unlikely court is of, to the decision the factual contribute Filed Feb. 2005. before court. legal issues Amended Feb. Conclusion juris-
We hold that the district has the suit
diction to decide whether before stayed by stay the automatic hold, further,
bankruptcy court. We qualifies exception
the suit under the stay “police regulato-
the automatic 362(b)(4).
ry power” under 11 U.S.C.
Finally, stay we hold that a Landis is not
justified under the of this circumstances stay
case. therefore VACATE Attorney
and REMAND to allow the Gen- go
eral’s suit to forward on the merits of Clayton
his Act claim.
VACATED REMANDED. ANDREWS,
Antolin Plaintiff-
Appellant,
Rohit K. Singla, Munger, Tolies & Olson LLP, Francisco, CA, plaintiff- San for the appellant. Chan,
Maria Deputy Attorney G. Gener- California, Sacramento, al for the State of CA, for the defendants-appellees. Herwig Stepihanie Barbara L. R. Marcus, Division, Department Civil of Jus- tice, D.C., Washington, for the intervenor. FERNANDEZ, PAEZ, Before: RAWLINSON, Judges. Circuit PAEZ; Opinion by Judge Partial by Judge Concurrence and Partial Dissent FERNANDEZ.
ORDER opinion February filed on Judge amended to include Fernandez’s concurring and dissenting opinion. OPINION PAEZ, Judge. Circuit Andrews, Appellant Antolin an inmate in (“CSP-So- California State Prison-Solano lano”), pro complaint filed se challenging way which the officials administered the process resolving prisoner grievances. rights action under 42 U.S.C. granted against the district court Andrews’ King, After defendants V.R. S.' Cer vantes, pauperis McPhereson, T. motion Dickinson and Lt. forma (“IFP ”), CSP-Solano, filed a for prison the defendants motion officials at and Ed Alamedia, summary judgment, arguing that Andrews the Director of the California IFP under the Department (collectively was not entitled of Corrections defendants”). provision of 28 U.S.C. “three strikes” “the State alleged granted The district court 1915(g).1 that the State defendants administer the ultimately defendants’ motion dis prisoner grievance process administrative complaint preju Andrews’ without missed effectively deny prison at CSP-Solano *4 dice, ruling that Andrews had failed to by making ers access to the federal courts that he did not have three demonstrate impossible” it “almost to pris exhaust the 1915(g). § strikes under on’s administrative remedies.2 The dis initially granted trict court Andrews’ re of establishing Whether the burden the IFP. quest proceed to existence or nonexistence of three strikes pris- defendant or with the rests with the The respond State defendants did not to an oner-plaintiff impression issue first Instead, complaint. Andrews’ a filed in this circuit. We hold that when the summary judgment motion for under Fed. challenges prisoner’s right defendant a 56(d). motion, R.Civ.P. their the State IFP, the defendant bears the bur- argued defendants had ac- Andrews producing den of sufficient evidence to es- and, quired three strikes proof the plaintiffs tablish that bars the strikes, existence of those attached IFP status. Once the defendant has made records from the federal courts’ Public case, prima out a facie the burden shifts to (“PA- Access to Court Electronic Records persuade the court that plaintiff CER”) the system showing the docket records apply. § Because does here twenty-two for actions in which Andrews did not meet their initial the defendants plaintiff the was and the cases had been burden, we reverse court’s dis- The State defendants also at- dismissed. complaint missal of Andrews’ and remand tached an order from Superior the Court proceedings. for further County of Los Angeles that deemed An- a litigant. drews vexatious The de- State History I. Facts and Procedural provide fendants did not the district court inmate copies underlying Andrews is state incarcerated with of the dismissal damages in- Seeking present any CSP-Solano. and or orders other evidence re- junctive relief, a pro garding Andrews filed se civil the for reasons the dismissals. part commonly 1. Section was enacted as This subdivision is known as the Litigation provision. 1996 Amendments to the Prison strikes” "three "Strikes” are Act, 104-134, Pub.L. No. Stat. brought Reform appeals, plaintiff cases or while the 804(d) ("PLRA”) provides that: prisoner, was a which were dismissed "on the frivolous, malicious, ground that[they were] prisoner bring In no event shall civil appeal generically to state a claim” fail[] action or ... under this section if are has, occasions, prisoner referred to on 3 or more "strikes.” Pursuant 1915(g), prisoner while incarcerated or detained in facili- with three strikes or ty, appeal action or an in a court of more cannot IFP. the United States that was dismissed frivolous, malicious, requires 2. The PLRA exhaust grounds that it is bring- may administrative remedies before upon fails to state a claim which relief granted, an action in federal court. See 42 U.S.C. be unless the is under 1997e(a). danger physical injury. imminent of serious strikes to warrant IFP disqualification.”3 motion, opposed stating Andrews Magistrate Judge concluded, however, had not filed three or.more actions The he frivolous, that were malicious or that failed that dismissed petitions habeas do not con meaning to state a claim within the of 28 stitute strikes.under 28 U.S.C. Nonetheless, § 1915(g). argued He further the Magistrate Judge deter records attached to the mined that Andrews the PACER State had at least dismissals that defendants’ motion were insufficient to es- constituted strikes within meaning necessary 1915(g), tablish the “three strikes” and recom him mended that deny Andrews’ case status be dismissed prejudice. without Magistrate Judge The issued Order objections filed to the Magis- Findings and Recommendations rec- Judge’s Findings trate and Recommenda- ommending grant court- district tions in which argued he under the summary the State defendants’ motion for statute, plain text cases dis- judgment. Findings and Recommen- missed as frivolous or malicious or plaintiffs dations determined that bear for failure to state a claim count as strikes qualification their proving *5 the State defendants had not met IFP status. The Magistrate Judge found showing their burden of that he had three plaintiffs production bear the initial or more such burden, strikes. The State defen- stating: up plaintiffs “it is objections dants also filed to the Findings previous litigations against describe their Recommendations, defendants; and in which ob- present different defendants jected to the peti- recommendation that perform should not have research.” tions for writs of corpus habeas do not Findings The and Recommendations also count “strikes” for purposes of determined that it was Andrews’ burden to § 1915(g). negate “prima the defendants’ facie show- ing that the number of federal suits filed adopted The district court Magis- IFP.” disqualified proceeding from [him] Findings trate Judge's Recommenda- Thus, Magistrate Judge recommended in tions full and dismissed Andrews’ action
that because Andrews had failed to rebut prejudice. appeal without This followed. showing the State defendants’ regarding litigation history, his he was not entitled to II. Jurisdiction n IFP 42 proceed filing in his U.S.C. 1983 initially The State defendants contend action. jurisdiction lack to review the Magistrate Judge dismissing then reasoned district court’s order Andrews’ that even if the burden were not on An prejudice action without this is a “because prove drews to that he had fewer than matter in abatement” under 28 U.S.C. strikes, “the record argue shows sufficient 2105.4 The State defendants Croker, (C.D.Cal.) Magistrate Judge following 3. The counted the CV-1913 and Andrews v. (1) (C.D.Cal.)). appeal five cases as strikes: an that was No. 97-CV-5333 (Andrews jurisdiction dismissed for lack of Croker, v. (9th Cir.)); commonly ignored provi- (2) "One of the most No. 98-55330 a case Code,” Wright, sions of the Judicial 15A C. A. that was dismissed for failure to state a claim (Rudder Associates, Cooper, Vargas & E. Federal Practice and Pro- v. Miller & No. 94-CV-67 (1992), (D.C.Cir.)); (3) cedure at 139 a case that .28 was dismissed (Rudder Revitz, provides 2105 that: "There shall no re- without leave to amend v. be 93- (C.D.Cal.)); (4) Supreme ap- CV-2778 versal in the two other dis Court or court peals ruling upon trict court cases that had been dismissed for error in matters in (Rudder Justice, prejudice Dep’t jurisdiction.” v. No. 93- abatement which do not involve jurisdiction of Andrews’ IFP status review district revocation address the merits of his claims does not court order Andrews’ case. therefore, § 1983 and under 42 U.S.C. III. Defendants’ Motion for definition of a ‘matter in
“fits within the ”5 Summary Judgment abatement.’ challenges the district Although the disagree. defen court’s determination because he had styled complaint as one for dants their acquired three meaning strikes within the 56(d), summary judgment under Rule proceed he could not IFP. We seeking in fact to vacate the district are grant summary judg review “de novo a permitting pro order Andrews to court’s whether, ment and must determine view IFP. pro ceed The denial of motion to light the evidence most favor a final appealable judgment ceed is nonmoving party, able to the there are under 28 U.S.C. 1291. See Roberts v. genuine fact and issues material wheth Dist., Dist. the N. United States Ct.for correctly er court applied the district 844, 845, U.S. S.Ct. L.Ed. 1326 (1950) (“The Lopez relevant substantive law.” judge denial a district of a Smith, Cir.2000) pauperis motion to forma is (en banc) (citation omitted).6 U.S., order.”); appealable Lipscomb v. The district (9th Cir.1962) (“An interpretation application order court’s denying leave to subject is also to de novo review. pauperis appealable.”). forma Tierney Kupers, Moreover, even if we considered *6 the defendants’ motion as one for sum A. Burdens of Production
mary in judgment, this is not a “matter and Persuasion abatement” because our review of the dis To determine whether the district court ground missal of a claim on the complaint, erred in Andrews’ proceed that he should not IFP involves a we must address whether Andrews or the is, decision on the merits. That Andrews pro- State defendants bore the burden opportunity would not otherwise have the duction to show that Andrews was not to address whether cases proceed entitled to IFP under the PLRA’s § 1915(g) constitute a “strike” under or to provision. three strikes correct allegedly the district court’s erro neous denial of IFP status. Although previously have not we ad- reject particular provision dressed this
Accordingly, we
the State’s chal-
PLRA,
lenge
jurisdiction
to our
and
a
question
hold
we
we addressed
similar
5.
suspension
A "matter in abatement" is "the
missed and that he had been declared a vexa
or defeat of an
a
action for
reason unrelated
litigant,
tious
what is at stake here are the
to the merits of the claim.” Black's Law
legal consequences that flow from these un
(8th ed.2004).
Dictionary 3
Thus,
disputed
we
facts.
whether
treat the
56(d)
State defendants’ motion under Rule
Although
styled
6.
the State defendants
their
a
to vacate makes little difference.
motion
In
summary judgment
a
motion as motion for
circumstance,
either
we
de
review
novo the
56(d),
effectively
under Rule
it was
motion
interpretation
district court's
allowing
pro-
to vacate the order
Andrews to
legal
Balint v. Car
related
conclusions. See
precluded
ceed IFP because he was
do-
from
Nev.,
City,
son
Cir.
1915(g).
so under
Because Andrews
1999);
Kempthorne,
D. v.
F.3d
Jeff
dispute
did not
the fact that he had filed at
(9th Cir.2004).
850-51
twenty-two
least
lawsuits that had been dis-
Indeed, §
of the PLRA’s exhaustion re
explicitly
the context
details the
1997e(a).7
quirement.
requirements
prisoners
See U.S.C.
for
applying to
Terhune,
IFP,
1915(a)(1)
we concluded that the
Wyatt
(2),
see
&
requirement
creates
PLRA’s exhaustion
although prisoners must demonstrate that
raised
an affirmative defense
must be
they are not
pay
filing
able to
fee with
by the
proved
defendant. See
an affidavit and
submission
their
so
id.,
records,
account
Congress
trust
see
did
deciding,
that we would not
we reasoned
require prisoners
to declare that
impose heightened pleading requirement
request
does not bar their
to
Congress
expressly
had not
in
where
Congress
IFP.8 Had
intended to
structed us to do so. See id. at 1118 require prisoners
affirmatively
show
Sorema,
(citing Swierkiewicz
534 U.S.
subject
were not
to the three
(2002)).
122 S.Ct.
152 L.Ed.2d
provision,
strikes
we have no
doubt that
Moreover,
recognized that
imposing
we
requirement
would
included that
requirement
such a
“would be
requirements
the list of
prisoners must
contrary to
approach
the liberal
we take
address
order
obtain
status. See
pleadings by pro
prisoners”
se
and also Wyatt, 315 F.3d at
(“Legislatures
unrealistic,
given
“prison officials are
know how to indicate ... a pleading re
and,
likely
greater legal expertise
to have
to.”).
quirement
when
want
important, superior
to prison
as
access
Moreover,
with Andrews that
in comparison
administrative records
to here,
in Wyatt,
as
of policy
considerations
prisoners.” Id. at 1119.
and fairness militate in favor
imposing
the burden on the State
defendants
Wyatt
find that our decision in
produce evidence to demonstrate that the
provides
helpful paradigm
deciding
prisoner should be denied IFP status be
party
establishing
which
has the burden of
cause he had three
the existence or nonexistence of
strikes
Here,
First,
alleged
strikes under 28 U.S.C.
prisoner,
cannot
Wyatt,
we do not discern in the
he
maintain files for
express
relevant statute an
each lawsuit
congressional
previously
he has
*7
place
brought.9
intent
to
the initial burden on the
Andrews also stated that he
prisoner-plaintiff.
Wyatt,
See
315 F.3d at
does not have access to PACER nor can
1997e(a)
Yaklich,
596,
Cir.2004);
7. Section
of the PLRA states:
Wilson
148 F.3d
(6th Cir.1998);
Patton v.
respect
No action shall be
to
Jefferson
Ctr.,
(5th Cir.1998);
prison
Corr.
conditions under section 1983 of this
136 F.3d
title,
law,
Jockisch,
any
by prison-
other Federal
a
Lucien v.
469 n. 8
any jail, prison,
er confined
Cir.1998).
or other
Because district courts do "not
facility
correctional
until such administra-
one,
by
issue these strikes one
in their orders
tive remedies
are
available are exhaust-
DeLeon,
judgment,”
361 F.3d at
most
ed.
prisoners would not be able to determine
1997e(a).
§
42 U.S.C.
any
whether
have accumulated
strikes
meaning
1915(g) prior
within the
to fil
Indeed,
requirement
such a
would be diffi-
application
proceed
IFP.
cult,
meet,
impossible,
given
if not
action,
a
the district
facility,
represents
9.In
his current
Andrews
required
court is not
to determine whether
frivolous,
permitted only
that he is
six cubic feet of
prisoner's
the
case is
malicious or
possessions
enough
that
this is not
fails to state a claim
therefore
will count
—and
space
comprehensive
e.g.,
to maintain
files. The
a future strike under
See
Cook,
Rodriguez
challenge
repre-
State
do not
defendants
Cir.1999);
Doe,
(2d
DeLeon v.
sentation.
Evans,
1998).
offices to
relevant
In
the
clerks’
obtain
Seventh Circuit
he visit
Moreover,
indigent,
because he is
found that
identifying
specific
orders.
order the relevant docu-
cannot
potential strikes,
examples
the district
directly
pay
from the court or
a
ments
put
plaintiff
the
on notice as to what
service,
third-party,
filing
such as a court
in denying
request
had considered
his
for him. The
to obtain the records
State
IFP. Id. The burden of
persuasion
dispute
defendants do not
these facts.
plaintiff
then shifted to the
that
show
defendants,
hand,
The State
on
other
prior
qualify
dismissals did not
as strikes.
prison
access to
administra-
greater
sum,
prisoner
placed
once a
has been
on
records,
and a
tive
court documents
host
potential disqualification un-
notice of the
knowledgeable attorneys
repre-
who have
§ 1915(g) by
der
either the district court
officials
lawsuits
sented
state
defendant,
bears the
Wyatt,
brought by
prisoners.
state
persuading
ultimate burden of
the court
with the defendants. producing evidence to show that status, the defen- lenging prisoner’s disqualified he was not 1915(g), under documentary evidence produce dants must and because we find the State defen- the district court to conclude allows present not dants did sufficient evidence plaintiff that the has filed at least three regarding prior dismissals to establish prior actions that were dismissed because IFP disqualification prima facie case of “frivolous, malicious or fail[ed] were 1915(g), judgment under vacate we in- to state a claim.” some proceedings. and remand for further stances, court docket records may to show that a be sufficient Meaning B. The of a “Strike” at dismissal satisfies least one crite- provide guidance To to the district court ria under and therefore counts remand, address district court’s instances, However, many as a strike. interpretation “strike” reflect the docket records will not the ba- § 1915(g). Section states that a instances, sis In these for the dismissal. IFP “if the prisoner may pris- not may simply the defendants rest on the has, occasions, oner on three or more Rather, fact of dismissal. the defendants while incarcerated or detained in facil- produce must court records or other docu- *8 ity, brought appeal an action or in a court mentation that will allow the district court United States was dismissed on to determine that a case was dis- frivolous, “frivolous, grounds the that it was malicious missed it was malicious because or upon § or a claim.” fails to state a claim which relief 1915(g). to state fail[ed] granted.” could be Once the defendants have met this In applying disqualify An- burden, initial the burden then shifts to IFP, proceeding drews from the district prisoner, attempt to rebut who must gave court an expansive interpretation showing by explaining why the defendants’ “frivolous, the clause malicious or fails to should not count as a dismissal Thus, a claim.” for example, state without approach strike. We with the taken frivolous, Dep’t v. Ill. determining that Evans our circuit in the case was sister Corrs., (7th claim, or Cir. malicious failed to state frivolous, district court nonetheless determined because it was malicious or failed appeal the Ninth Circuit’s dismissal of an to state a claim. jurisdiction
for lack of constituted a strike Here, the State defendants at § 1915(g). disagree under tempted to meet their produc burden of approach. by pointing tion to the fact that Andrews The PLEA does not define the had filed at twenty-two least prior cases “frivolous,” “malicious,” or nor terms does that had been dismissed. This was insuffi it define dismissals for failure to “state a cient to shift the burden to Al Andrews. upon granted.” claim which relief could be though Magistrate Judge, relying on phrase We have held that “fails to records, the PACER docket pri- identified may grant state a claim on which relief be or potentially cases that qualified 'as ed,” 1915, “paral as used elsewhere in § 1915(g), strikes under only one case language lels the of Federal Rule of Civil plainly qualified as a strike because the 12(b)(6).” Procedure See Barren v. Har docket record showed that it was dis (9th Cir.1998) rington, 152 F.3d missed for failure to state a claim under 1915(e)(2)(B)(ii) (interpreting and em 12(b)(6). Rule cases, As for the four other ploying the same de novo standard of re Magistrate Judge determined that 12(b)(6) motions). applied view to Rule each one counted as a strike without con Yet there is no Ninth Circuit case law sidering the underlying court orders or the 1996 Amendments to the PLRA that making an independent assessment explains precisely what the terms “frivo whether the prior cases were frivolous or defining lous” or “malicious” mean. terms, malicious failed to state a claim. “ordinary, these we look to their contemporary, common meaning.” Wil We hold plain language Soc’y derness United States Fish & § 1915(g), the prior dismissals would Serv., Wildlife if, qualify as strikes reviewing after Cir.2003) (en banc) (internal quotation the orders those actions and omitted). Thus, marks and citations information, other relevant case is frivolous if it is “of weight little determined that had been dis- importance: having no basis law or frivolous, missed because were mali- fact.” Webster’s Third New International cious or failed to state a claim. See (1993); Dictionary 913 see also Goland circumstances, § 1915(g). Under States, United must remand this case to the district court Cir.1990) (adopting a definition of “frivo it can necessary so make the determina- lous”). A case is malicious if it was filed tions on complete the' basis of a more with the “intention or desire to harm an factual record. other.” Webster’s Third New Internation (1993). Dictionary al C. Dismissals While INS Detention qualify Not all unsuccessful cases as a argues that he was not a Rather, strike under “prisoner” purposes for the of 28 U.S.C. deny should be used to *9 1915(g) § when he filed three of the ac when, status after careful evaluation ' tions that the district court counted as action, of the order and oth- information, strikes.10 We hold dismissals of ac er relevant the district court plaintiff determines the action was dismissed tions while was in the Revitz, (C.D.Cal.); Vargas 10. Andrews refers to Rudder v. & Asso 93-CV-2778 and Rudder v. ciates, (D.C.Cir.); Justice, (C.D.Cal.). No. Dep’t 94-CV-67 Rudder v. No. 93-CV-1913 of 1122 886; do not count 296 at
custody of the INS as F.3d see also LaFontant v. meaning INS, 158, (D.C.Cir.1998) §of 1915(g), “strikes” within the 135 F.3d 165 (5th the detainee did not also face long (same); INS, so Ojo v. 106 F.3d INS, charges. Agyeman Cir.1997) (same). criminal Thus, if Andrews was 885-86 accusation, not pursuant detained to “an conviction or sentence for a criminal of §of language does in custody, fense” while INS he awas civil facility type not limit the in which a subject detainee and not to the PLRA’s plaintiff must be detained when the provisions. circumstances, Under such prisoner actions were filed. It states that a of a dismissal case that Andrews filed may not IFP if the three dis custody while he was in the of the INS prison missed actions were filed while the would not count as a pur strike for the er was “incarcerated or detained in remand, § poses 1915(g).11 An On § facility.” 1915(g). scope Yet establishing drews bears the burden of § plaintiffs 1915 is narrowed to who are in custody he was INS and that he custody of a as the result conviction or who facing charges was not criminal at the time alleged for an have been detained criminal he filed the actions. law violation: section, “pris- As used the term D. Dismissals of Habeas Petitions any person oner” incarcerated or means Finally, with the district any facility who detained is accused court that of, of, for, petitions dismissed habeas adjudi- do convicted sentenced or for, not count as strikes under delinquent 1915(g).12 § cated violations of crimi- previously nal law the terms and of We or conditions have held that the “PLRA’s parole, probation, pretrial release di- pauperis provisions forma revised[in] relat versionary program. apply do not to habeas Hill, proceedings.” Naddi v. 1915(h). Thus, § a civil detainee is not a (9th Cir.1997). Naddi, we rea “prisoner” meaning within the 886; § language soned Agyeman, Page PLRA. 296 F.3d at does Torrey, encompass petitions habeas Cir. also 2000) (holding “requirements that Congress intended 1915(g) to ad ... apply only currently to ‘prisoners.’ de dress civil rights prison condition accusation, conviction, tained as a result of cases, petitions. not habeas See id. See offense.”) (cita for a criminal sentence Jennings also v. Natrona County Det. Ctr. omitted). tions Facility, Med. Cir.1999) (holding that the “district court Agyeman, we held that an INS de-
tainee who does not also face criminal erred when it counted ... prior habeas charges corpus is not a under action strike Act, interpretation comports Litigation 11. This with Con- Prison 78 Notre Dame Reform (2003). gress's purpose enacting pre- the PLRA to L. Rev. vent frivolous condition lawsuits filed generally, however, criminals. See Joshua D. Frank- recognize, 12. We that some habeas lin, Comment, Three and You're Out Strikes petitions may be little more than 42 U.S.C. Litigation Rights? Constitutional The Prison petitions 1983 actions mislabeled as habeas Act’s “Three Strikes” Provision and Its penalties imposed by so as to avoid the Reform cases, Indigents, 71 U. Colo. L. Rev. In such Effect (2000); Ostrom, Hansen, Roger may J. A. Brian determine that the dismissal of the Cheesman, Congress, and Fred L. petition Courts and habeas does in fact count as a strike Empirical Perspective purposes Corrections: An on the
1123 115, 1915(g)”); Nagy, In re 89 F.3d 117 A. Burdens Production and Persua- (2d Cir.1996) sion (holding application that the petitions PLRA to mandamus de- of the asserts the district court sought— nature of the relief pends on the erred when allocated to him the burden claim is prisoner’s if the mandamus proving prior that his dismissals did not un- analogous typical to the suits constitute posits strikes. He that when complaining der 42 U.S.C. about the state prisoner tells the court that a apply). conditions does the PLRA should not have IFP status based on 28 § 1915(g), it should bear the final Challenges E. Constitutional persuading burden of the court of the exis- argues 1915(g) Andrews also is tence of three strikes. majority unconstitutional on its face and applied and I that is not so. to him. previously have held that The district court’s allocation of the bur facially is not unconstitutional. persuasion den of question is a of law that Cook, Rodriguez v. 169 F.3d Ferrari, Alvarez, we review de novo. Ol (9th Cir.1999). Rodriguez, we found Co., sen & Ottoboni v. Home Ins. 940 F.2d deterring frivolous is ration- lawsuits (9th Cir.1991); Moss, Lew v. ally legitimate government related to a F.2d Although we interest and therefore does not violate the issue, yet to rule on the those circuits Equal Protection Clause Fourteenth placed have addressed it have Id. at Amendment. 1180-81. We ex- seeking burden on the who is to plained “[bjudgetary concerns are a Day file IFP. v. Maynard, legitimate governmental interest and curb- (10th Cir.1999) curiam) 665, 666-67 (per ing defending against the costs of frivolous (section 1915(g) prisoner’s barred action litigation rationally related to maintain- persuade where he failed to the court that budget.” Although recognize Id. qualify his dismissals did not that serious constitutional concerns would strikes); Corrs., Dep’t Evans Ill. §if applied preclude arise were to (7th Cir.1998) (“Having been those who had filed actions that request notified the court’s denial of his [of “frivolous,
were malicious or to fail[ed] IFP], to Evans bore the burden of IFP, state a claim” proceeding from we do showing that incorrectly the district court not decide Andrews’ as-applied challenge litigation history.”); assessed his Rivera v. because we can resolve this case on nar- Allin, Cir.1998) grounds. rower (“[I]t is the to produce ‘prior sufficient record information about
Accordingly, we vacate the dismissal and court....”). appellate occasions’ I remand for further proceedings consistent So, it, join I them. as understand does the with this opinion. majority. AND VACATED REMANDED. majority disagree
Where the and I is on FERNANDEZ, Judge, Circuit just what a defendant or district concurring dissenting: point require plain- must order to tiff go forward and shoulder his burdens I concur in majority opinion, production persuasion. exception part III-A and the second sentence of the second paragraph part general, filing an action is a See, III-B. portions, As those three I dis- privilege, right. e.g., Rodriguez not a Cook, 1176, 1180 Cir.1999); sent. *11 1124 Colorado, 1226, 157 F.3d
White v.
1233 better situated to ascertain and provide
(10th
Rivera,
Cir.1998);
724;
144 F.3d at
with
regarding prison
courts
information
States,
1115,
415
prior
Startti v. United
ers’
dismissals. To bolster his asser
(5th Cir.1969)
curiam);
tion,
(per
heavily
1116
Smart v.
he relies
on
pronounce
our
Heinze,
114,
Cir.1965).
347 F.2d
ment
in the administrative exhaustion
Therefore,
context,
“prison
likely
who desire that bene
officials are
to have
always
statutorily required
greater legal
and,
fit have
been
expertise
important,
they financially qualify,1 superior
prison
demonstrate that
access to
administrative
and
Congress
comparison
prisoners,”
with
added one
records
par
they
ticularly
prisoners,
more hurdle that
must surmount. To
where
have been trans
proving
place
Wyatt
the burden of
the existence
ferred to different facilities.
v. Ter
(or
of) hune,
(9th Cir.2003).
1108,
establishing
prima
a
facie case
315 F.3d
illogical
three strikes on the state would be
intimation,
Contrary to Andrews’
al
party
for it
a
would force
third
to demon
though easier access to
can
records
be
why
strate
not
person should
obtain a
relevant to the burden-allocation inquiry, it
benefit to
person
right
which the
has no
See,
dispositive.3
is not
e.g., NLRB v.
See,
the first place.
e.g., Aeroquip Corp. v.
Inc.,
293,
Nugget,
Tahoe
584 F.2d
Co., Inc.,
893,
Aetna Cas. & Sur.
26 F.3d
Cir.1978).
was,
fact, only
It
one
(9th Cir.1994) (allocating
burden of
amongst
underlying
several factors
Wyatt.
persuasion
in part
to insured
because it
importantly,
prior
More
evidence of
dis
benefit).2
aligned the burden with the
easily distinguishable
missals is
from evi
approach requires
party
more sound
dence of
administrative records.
seeking
prove
IFP status to
all of the The latter
likely produced by
are
and
thereto,
prerequisites
including the ab
therefore,
at prison facility;
stored
pris
sence of
strikes. Under that
on
intimately
administrators are
familiar
framework,
has
incentive to
them,
easily
and
are
identifiable
file a motion for IFP status
if he
case,
by
accessible. As evidenced
knows that
can produce
he
sufficient evi however, prisoners may
legal
file
actions
dence to
show that his
dismissals do numerous
courts and under different
qualify
1915(g),
reducing
thus
Copies
names.
of those dismissals and the
frivolous IFP
and effectuating
motions
details of the nature of those cases would
Howard,
policy
PLRA.
underlying the
at least presumptively
readily
be more
as
tention of the court should
no
Cir.1997) (en banc); see also Neitzke v.
IFP
question
ence at all. The
of
status is Williams,
319, 325,
490 U.S.
109 S.Ct.
court and the re-
a matter between the
1827, 1831-32,
(1989);
dismissals and then let the is,
them, if he can. That the dismissals to sug-
themselves are sufficient evidence least,
gest at the the action was not meritorious and failed to state a claim. CORP., GATOR.COM Plaintiff- plaintiff The should have to demonstrate Appellant, Thus, contrary. I would hold that proffers when the state information tend- that a prisoner to show has three BEAN, INC., Defendant-Appellee. L.L. strikes, pro- it is the burden to persuade duce sufficient evidence to No. 02-15035. court that does not bar him from of Appeals, United States Court Moreover, dismissals status. Ninth Circuit. just
themselves tend to show that. Argued and Submitted June 2004. B. Meaning a Strike Filed Feb. 2005. I also do not that a dismissal for filing clearly improper appeal is not a frivolity.
dismissal on the basis of This
court, for example, barraged is often
premature appeals prisoners who re- accept
fuse to the district court’s interim fact, way, By why 4. Andrews should not be able to it is difficult to see the state litiga- production hide behind the claim that because his should even have burden of (over history gallimaufry tion is such a the circumstances. It aids and is all), brings cases in he should not have to remember friend of the court when informa- all, explain history. height filing That is the tion to the court's attention. After crocodility; just designed operations; he is the sort of fees are to fund court go opposing litigants. Congress passed had in mind when it do not to the §§ PLRA. 28 U.S.C. 1911-1931.