Matthew G. SILVA, Plaintiff-Appellant, v. Sara DI VITTORIO; James C. Miller; William Lucas; Scott Hatten; Corrections Corporation of America; Rob McKenna; Christine O. Gregoire; Harold Clarke; James Thatcher; Maggie Miller-Stout; Richard Hewson; Rainville; John Arnold; Lerch; Westfall; Renate Archer; John Ferguson; John Gay; Samuel Rogers; Napier; Mary Verdugo; Trans-Cor Corporation, Defendants-Appellees.
No. 08-15620
United States Court of Appeals, Ninth Circuit
September 26, 2011
658 F.3d 1090
GUILFORD, District Judge, concurring; Before: DIARMUID F. O‘SCANNLAIN and RICHARD A. PAEZ, Circuit Judges, and VIRGINIA M. KENDALL, District Judge. Opinion by Judge KENDALL; Dissent by Judge O‘SCANNLAIN.
Submitted Dec. 8, 2010. Filed Sept. 26, 2011.
I concur in the result.
This case requires us to determine if a tax imposed on certain economic activity of the Tribes of the Yakama Nation creates a “legal incidence” upon the Tribes. The impact of various forms of taxation on a people has been apparent throughout our country‘s history, going back at least to when American patriots—ironically dressed as Indians—threw tea into Boston Harbor. The burden of taxation was the fuel in the fire of freedom ignited by our country‘s founders, and that burden continues to be a powerful factor in today‘s politics.
In this case, the tax burden must be analyzed through the prism of the “legal incidence” test, which often focuses on the issue of whether the tax can be passed through or passed along to others. An economist reviewing this “pass through” issue would analyze the demand elasticity for the product being taxed. In further review of the burden of taxation, an economist, aware of the negative slope of demand curves, would conclude that increasing the price of a product through a tax necessarily will decrease sales volume. And in comparing the impact of immediate cash payments with deferred payments, an economist would review interests rates and the time value of money. But as the majority opinion recognizes, economic analysis of the burdens of taxation has been forbidden in reviewing “legal incidence.” In Oklahoma Tax Comm‘n v. Chickasaw Nation, 515 U.S. 450, 459-60, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995), the Supreme Court analyzed “legal incidence” while rejecting guidance from what it called the “more venturesome approach” involving economic reality, stating:
If we were to make “economic reality” our guide, we might be obliged to consider, for example, how completely re-tailers can pass along tax increases without sacrificing sales volume—a complicated matter dependent on the characteristics of the market for the relevant product.
Indians in the Tribes of the Yakama Nation might well wonder how the analysis of what courts call “legal incidence” can be done without reviewing the economic reality of the tax burden on them. And here, a review of these economic realities likely would reveal that the tax at issue imposes an economic burden on Indians in the Yakama Nation. But the law requires an analysis through a prism that blocks economic reality. Thus, following Supreme Court authority, without the guidance of economic reality, I must concur with the majority‘s opinion. Apart from economic reality, the provisions of the
Andrew M. Jacobs and Robert A. Bernheim, Snell & Wilmer L.L.P., Tucson, AZ, for plaintiff-appellant Matthew G. Silva.
Robert M. McKenna, Attorney General, and Andrea Vingo, Assistant Attorney General, Olympia, WA, for the defendant-appellees.
Opinion by Judge KENDALL; Dissent by Judge O‘SCANNLAIN.
KENDALL, District Judge:
Matthew Silva (“Silva“), a Washington State prisoner, appeals the district court‘s sua sponte dismissal of his pro se civil rights action for failure to state a claim upon which relief may be granted. We have jurisdiction under
I. BACKGROUND
A. Silva‘s Complaint
On September 4, 2007, Silva filed a pro se civil rights complaint against Washington Assistant Attorney General Sara Olson, referred to on appeal as Sara Di Vittorio (“Di Vittorio“), and three Washington Department of Corrections (“WDOC“) and Corrections Corporation of America (“Corrections Corporation“) officials who work at the Florence Correctional Center (“FCC“), where Silva had previously been incarcerated. In his complaint, Silva sought relief under
The district court initially denied Silva‘s motion to proceed IFP, concluding that the Prisoner Litigation Reform Act‘s “three-strikes” provision barred his request to proceed IFP. See
Silva moved to reconsider, arguing that two of the four cases the district court counted as strikes should not count against him because, at the time he filed his complaint, his appeals were still pending before this court. The district court agreed and granted Silva‘s motion to reconsider,
As obligated under
B. Silva‘s first amended complaint
On January 16, 2008, Silva amended his complaint, this time suing Di Vittorio; Washington State Attorney General, Rob McKenna (“McKenna“); the Governor of Washington State, Christine Gregoire (“Gregoire“); a number of WDOC and Corrections Corporation officials; Corrections Corporation itself; and Trans-Cor Corporation, a prisoner transportation company (collectively “the Defendants“). In his first amended complaint (“amended complaint“), Silva reasserted his claim under
In his amended complaint, Silva also added a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO“),
Again the district court screened Silva‘s amended complaint pursuant to
As to Silva‘s right to access the courts claim, the district court stated that the right “is only a right to bring petitions or complaints to the federal court and not a right to discover such claims or even to litigate them effectively once filed with a court.” Because the factual allegations underlying Silva‘s access to courts claim
The district court also found that Silva did not state a claim for retaliation because he failed to identify specific retaliatory acts carried out by specific defendants and failed to precisely describe his conduct that prompted the Defendants to retaliate against him. Finally, the district court concluded that, without the federal claims, it did not have diversity jurisdiction over Silva‘s claim for common law conversion because Silva failed to allege an amount in controversy in excess of $75,000. Stating that its “discretion to deny or grant leave to amend is particularly broad where Plaintiff has previously been permitted to amend his complaint,” and that the defects in Silva‘s amended complaint could not be corrected, the district court dismissed Silva‘s case without leave to amend.
C. Silva‘s appeal
Silva presents three issues on appeal. First, he argues that the district court erred by dismissing his claim for denial of the right to access the courts. Despite the statement in his amended complaint that the Defendants “had a duty under [the First and Fourteenth Amendments] to facilitate the specified civil actions,” Silva now acknowledges that prison officials have no affirmative duty to help him litigate his claims once they have been filed. See Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (holding that the Constitution does not require the State to “enable the prisoner to discover grievances, and to litigate effectively once in court“) (emphasis in original); Cornett, 51 F.3d at 898 (the right to access the courts “requires a state to provide a law library or legal assistance only during the pleading stage of a habeas or civil rights action“). He argues instead that prisoners have a right under the First and Fourteenth Amendments to litigate lawsuits challenging their sentences or the conditions of their confinement to conclusion without active interference by prison officials. According to Silva, this right extends beyond the filing of an initial pleading.
Silva also challenges the district court‘s dismissal of his retaliation claim. Silva contends that in dismissing this claim, the district court either ignored the allegations in his amended complaint that supported the claim or imposed an improperly high pleading standard. Finally, while Silva does not challenge the district court‘s dismissal of his RICO and state court conversion claims, he does contend that the district court erred by dismissing these claims with prejudice and without leave to amend.
In response, the Defendants contend that we need not reach the merits of Silva‘s appeal because the PLRA‘s “three-strikes” provision bars him from pursuing this appeal without prepayment of the filing fee. See
While Silva admits that two of the five dismissals, Washington and Clarke, count as “strikes,” he disputes that the other three count against him in this appeal. He argues that the most recent dismissal relied on by the Defendants, King County, cannot count against him because at the time Silva filed his notice of appeal in this case, the district court had not yet dismissed the King County lawsuit. As to the dismissals in Bush and Goddard, Silva argues similarly that the appeals of the two dismissal orders were still pending on March 14, 2008 when he filed this appeal, and therefore cannot count as “strikes” against him here.
II. DISCUSSION
A. The PLRA‘s “three-strikes” provision
To determine whether Silva may proceed with this appeal without prepayment of the filing fee, we must interpret the “three-strikes” rule under the PLRA. See
As in all statutory construction, we “begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Ileto v. Glock, Inc., 565 F.3d 1126, 1133 (9th Cir.2009) (quoting FMC Corp. v. Holliday, 498 U.S. 52, 57, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990)). Section 1915(g) prohibits a prisoner from proceeding IFP if he is an unsuccessful frequent-filer or has a history of malicious or frivolous litigation:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
In so holding, we join the majority of circuits that have addressed this issue. In Thompson, the D.C. Circuit held that
In Adepegba v. Hammons, 103 F.3d 383 (5th Cir.1996), the Fifth Circuit held that dismissals under
We note that the legislative history of the PLRA also supports our reading of the statute. While it is clear that Congress enacted
We must heed the Supreme Court‘s warning not to “depart from the usual practice under the Federal Rules on the basis of perceived policy concerns.” See Jones, 549 U.S. at 212 (holding that, despite legitimate policy reasons to the contrary, because the PLRA itself does not require prisoners to plead exhaustion, the normal pleading rules apply). Accordingly, we hold that a district court‘s dismissal of a case does not count as a “strike” under
Applying this rule to the three dismissals at issue here—King County, Bush and Goddard—we conclude that none count as a “strike” against Silva in this appeal. In King County, the district court dismissed Silva‘s case for failure to state a claim upon which relief may be granted and stated that the dismissal shall count as a “strike” under
In Bush, the district court dismissed Silva‘s complaint without prejudice for failure to state a claim upon which relief may be granted and directed the clerk to count the dismissal as a “strike” under
For the same reason, the district court‘s dismissal in Goddard also does not count against Silva in this appeal. In that case, the district court dismissed Silva‘s complaint without prejudice for failure to state a claim and instructed the clerk to dismiss the case with prejudice and count the dismissal as a “strike” under
Because three of the five dismissals on which the Defendants rely were not final at the time Silva took this appeal, they cannot count against Silva in this case. We therefore reject the Defendants’ request that we revoke Silva‘s IFP status, and we allow him to continue in this appeal IFP.7
B. Right of access to the courts and retaliation claims
We turn next to Silva‘s argument that the district court erred by sua sponte dismissing his right to access the courts and retaliation claims for failure to state a claim upon which relief may be granted. We review de novo a district court‘s dismissal of a case pursuant to
i. Silva‘s right of access to the courts claim
Silva first argues that the district court erred when it dismissed his right of access to the courts claim. Citing Lewis, 518 U.S. at 354 and Cornett, 51 F.3d at 898, the district court concluded that the right of access to the courts ends once a prisoner has brought his petition or complaint to the court and does not include the “right to discover such claims or even to litigate them effectively once filed with a court.” Accordingly, the district court concluded that because Silva‘s allegations related to his ability to effectively litigate his cases beyond the pleading stage, Silva failed to state a claim. We disagree.
Prisoners have a constitutional right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Under the First
We have traditionally differentiated between two types of access to court claims: those involving prisoners’ right to affirmative assistance and those involving prisoners’ rights to litigate without active interference. For example, in Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989), we explained that “a court must first determine whether the right of access claimant alleges ... a denial of adequate law libraries or adequate assistance from persons trained in the law. Second, if the claims do not involve such an allegation, the court must consider whether the plaintiff has alleged an ‘actual injury’ to court access.”8 Two of our sister circuits have recognized this distinction as well. See Snyder v. Nolen, 380 F.3d 279, 290 (7th Cir.2004); John L. v. Adams, 969 F.2d 228, 235 (6th Cir.1992).
With respect to the right to assistance, the Supreme Court has held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828; see also Lewis, 518 U.S. at 355; Wolff v. McDonnell, 418 U.S. 539, 579-80, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Johnson v. Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). The right to litigation assistance, however, is limited to the tools prisoners need “in order to attack their sentences, [either] directly or collaterally, and in order to challenge the conditions of their confinement.” Lewis, 518 U.S. at 355. Critical to the issue here, the right to legal assistance is also limited to the pleading stage.9 Id. at 384.
In the interference line of cases, the Supreme Court has “held that the First Amendment right to petition the government includes the right to file other civil actions in court that have a reasonable basis in law or fact.” Snyder, 380 F.3d at 290 (citing McDonald v. Smith, 472 U.S. 479, 484, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985); Bill Johnson‘s Rests., Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); see also Monsky v. Moraghan, 127 F.3d 243, 246 (2d Cir.1997)). This right does not require prison officials to provide affirmative assistance in the preparation of legal papers, but rather forbids states from “erect[ing] barriers that impede the right of access of incarcerated persons.”
We have recognized that prisoners’ First and Fourteenth Amendment rights to access the courts without undue interference extend beyond the pleading stages. See, e.g., Vigliotto v. Terry, 873 F.2d 1201, 1202 (9th Cir.1989) (“a defendant is deprived of due process if prison authorities confiscate the transcript of his state court conviction before appeal“); DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir.1966) (“When the efforts of a state prisoner to obtain an available appellate review of his conviction are frustrated by the action of penal officials, there has been a violation of the Due Process Clause of the Fourteenth Amendment“). Indeed, before the Supreme Court‘s decision in Bounds, when the right of access to the courts was understood only to guarantee prisoners a right to be free from interference, we held that the right to access the courts included “the opportunity to prepare, serve and file whatever pleadings or other documents are necessary or appropriate in order to commence or prosecute court proceedings affecting one‘s personal liberty, or to assert and sustain a defense therein, and to send and receive communications to and from judges, courts and lawyers concerning such matters.” Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir.1961) (emphasis added).
In Lewis, the Supreme Court limited the right of access to the courts to the pleading stage in cases involving prisoners’ affirmative right to assistance. See 518 U.S. at 354. Lewis does not speak to a prisoner‘s right to litigate in the federal courts without unreasonable interference. Because the Supreme Court has not limited a prisoner‘s right of access to the courts to the pleading stage in this circumstance, we hold that prisoners have a right under the First and Fourteenth Amendments to litigate claims challenging their sentences or the conditions of their confinement to conclusion without active interference by prison officials.
We disagree with the Defendants that Cornett v. Donovan, 51 F.3d 894 (9th Cir.1995), controls this case. In Cornett, we held that “the constitutional right of access requires a state to provide a law library or legal assistance only during the pleading stage of a habeas or civil rights action.” 51 F.3d at 898. The Defendants rely on Cornett for the proposition that all access to courts claims expire after the pleading stage. This reliance is misplaced primarily because Cornett, by its own language, only refers to claims involving library access and legal assistance, rather than active interference. Along the same lines, Cornett relied on Supreme Court cases involving assistance claims, not interference claims. See generally id. at 898-99. In Cornett we did not acknowledge—let alone discuss—access claims grounded in allegations of active interference. Accordingly, Cornett does not limit our ability to determine whether the right to pursue litigation efforts without active interference extends past the pleading stage, and we see no reason why such a right would not exist throughout a prisoner‘s litigation efforts.
Having so held, we turn to the facts alleged by Silva, bearing in mind that
ii. Silva‘s retaliation claim
Silva next argues that the district court erred by dismissing his retaliation claim. The district court concluded that Silva failed to identify specific retaliatory acts carried out by specific Defendants and failed to “describe precisely for what conduct he experienced retaliatory acts.” Silva contends that to reach that determination, the district court either ignored the allegations supporting his claim or imposed an excessively detailed pleading standard.
Silva alleges that each of the Defendants violated his First Amendment right to petition the government for redress of grievances without retaliation. As discussed above, a prisoner “retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Among those rights is the right to file prison grievances and the right to pursue civil rights litigation in the federal courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.2005). Because actions taken to retaliate against prisoners who exercise those rights “necessarily undermine those protections, such actions violate the Constitution quite apart from any underlying misconduct they are designed to shield.” Id. To state a claim for First Amendment retaliation, a prisoner must allege the following five elements: (1) a state actor took an adverse action against him (2) because of (3) the prisoner‘s protected conduct, and that the action taken against him (4) chilled the prisoner‘s exercise of his First Amendment Rights and (5) did not reasonably advance a legitimate correctional goal. See id. at 567-68.
Here, Silva alleges that Di Vittorio, McKenna, Gregoire, Clarke, Thatcher, Miller, Miller-Stout, Hewson, Rainville, Arnold, Lerch, Westfall, and Archer transferred Silva despite their knowledge that Silva possessed a number of boxes of files that included evidence he planned to use in proving government misconduct in pending cases and potential proceedings. He alleges that when he was transferred, the WDOC and Corrections Corporation defendants seized all of his legal files, which included sixteen boxes of documents, record evidence, legal books, and research notes. He also alleges that Di Vittorio, McKenna, Gregoire, Clarke, Thatcher, Miller, Lucas, Miller-Stout, Archer, Ferguson, John Gay, Samuel Rogers, Hatten, Napier, Verdugo, and Corrections Corporation repeatedly refused to address Silva‘s complaints and his requests for the return and inventory of his stolen files.
Silva further alleges that each of the Defendants engaged in the adverse actions described “in order to punish and retaliate against Silva for his efforts to expose their misconduct and law violations.” Specifically, he alleges that the Defendants engaged in these actions to intimidate or threaten him, to prevent him from testifying against them in his pending cases or in any future proceedings, to conceal or destroy the records necessary to prove his claims, and to hinder his ability to communicate with law
Silva‘s allegations, if taken as true, satisfy the pleading requirements of a retaliation claim. Silva alleges that prison officials “(1) arbitrarily confiscated, withheld, and eventually destroyed his property,” Rhodes, 408 F.3d at 568, and transferred him to another correctional institution, “(2) because he (3) exercised his First Amendment rights to file prison grievances and otherwise seek access to the legal process, and that (4) beyond imposing those tangible harms, the [defendants‘] actions chilled his First Amendment rights and (5) were not undertaken to advance legitimate penological purposes.” Id. This is “the very archetype of a cognizable First Amendment retaliation claim.” Id.; see also Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir.1985) (recognizing a First Amendment right of prisoners to be free from prison transfers or reassignments made in retaliation for legal activities). Further, while Silva pled some of his retaliation-related allegations in other sections of his amended complaint, when read together, Silva‘s allegations are specific enough to state a claim. Thus, we find that Silva has pled sufficient facts to state a claim for retaliation and we reverse the district court‘s order as to that count and remand.
C. Silva‘s RICO and state law conversion claims
Having concluded that the district court erred in dismissing Silva‘s right of access to the courts and retaliation claims, the only remaining issue is whether the district court erred in dismissing Silva‘s RICO and state law conversion claims without leave to amend. As to his RICO claim, Silva argues that, had he been given leave to file a second amended complaint, he could have corrected his claim to conform with the district court‘s order. We review a district court‘s denial of leave to amend for an abuse of discretion. See Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir.2009); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc).
Here, we agree with the district court that Silva failed to state a claim under RICO and that any attempt to replead this claim would be futile. Silva‘s RICO allegations center on the WDOC‘s alleged transportation of him against his will from his prison in Washington to the FCC in Arizona. The predicate acts Silva alleges include “kidnapping,” “witness tampering,” mail fraud, and wire fraud—all of which relate to the allegedly illegal transport. Even if the Defendants’ transfer of Silva from Washington to the FCC violated his constitutional rights to access the courts and to be free from retaliation, these acts do not qualify as predicate acts under
Silva‘s state law conversion claim was predicated on the dismissal of all of Silva‘s federal claims. Because we have restored two of Silva‘s federal claims, and because the district court dismissed the state claim after declining to exercise supplemental jurisdiction, we remand for consideration by the district court whether it wishes to exercise its discretion to hear Silva‘s state claim with his reinstated federal claims. See Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 715 (9th Cir.2009) (vacating dismissal of state law claims after reinstating federal claims so that the district court could decide whether to exercise its supplemental jurisdiction over the state law claims).
III. CONCLUSION
For the foregoing reasons, we decline to revoke Silva‘s IFP status and we reverse the district court‘s order dismissing Silva‘s right to access the courts, retaliation and state law conversion claims, and we remand for proceedings consistent with this opinion. We affirm the district court‘s judgment as to Silva‘s RICO claim. Each party shall bear its own costs.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
O‘SCANNLAIN, Circuit Judge, dissenting:
Matthew Silva, a Washington state prisoner, is no stranger to the federal courts. During his incarceration, he has filed at least fourteen actions in federal district court. He has succeeded in none of them, and at least four of his suits have been dismissed for failure to state a claim upon which relief may be granted. Undeterred, Silva filed this latest suit under
Throughout his many interactions with the federal courts, Silva has proceeded in forma pauperis (“IFP“). That is, he has never had to prepay a single administrative fee associated with his many federal filings. On appeal, Silva once again seeks to proceed IFP, a privilege which he is now clearly denied under the Prison Litigation Reform Act (“PLRA“). Nevertheless, the court today holds that Silva is free to proceed IFP, and that it should adjudicate the merits of his appeal. Because such conclusion flies in the face of the plain language of the PLRA, I would dismiss this appeal unless Silva prepays the appropriate filing fees. Thus, I respectfully dissent from the court‘s ruling to the contrary.
I
The PLRA creates a “three-strikes rule” for prisoners seeking to proceed IFP in bringing or appealing a civil suit in federal court. Specifically, the statute provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
II
The majority disregards this clear statutory mandate. Instead, it observes that “[s]ection 1915(g) does not expressly state whether a prior dismissal of ‘an action or appeal’ must be final before it can be considered a ‘strike.’ ” Maj. Op. at 1098. Although the statute does not state that a dismissal must become final in order to count as a strike, the majority opines that such a limitation is “fairly implied.” Id. The majority‘s rationale for implying a finality limitation into section 1915(g) is unpersuasive.
A
The majority is correct that section 1915(g) does not explicitly state when or whether a dismissal must become “final” in order to count as a strike. But that is precisely the point. The fact that the statute does not state that a dismissal must become “final” to count against the prisoner counsels that we look no further than the fact of dismissal when tallying strikes. The statute is patent on this point. See
Indeed, section 1915 contemplates only one contingency that is relevant to the inquiry here—whether “the prisoner is under imminent danger of serious physical injury.”
The majority‘s contrary approach transforms Congress‘s silence into an unspoken requirement of “finality“—indeed it mandates an assumption that all trial court dismissals under section 1915(g) were entered in error. Such an interpretation is both contrary to the ordinary and obvious meaning of Congress‘s language and without logical support. In short, the atextual reading advanced by the majority “has the anomalous result of allowing a prisoner to file, without payment, a frivolous appeal.” Robinson, 297 F.3d at 541.
B
The majority further opines that to count a dismissal as a strike as soon as it occurs “would be a departure from the usual practice under the Federal Rules,” and would “effectively eliminate our appellate function” in those cases where a third strike is being appealed. Maj. Op. at 1098 (citing
The PLRA regulates the applicability of that exception in the context of prisoners, not the “usual practice” of appellate proceedings themselves. Indeed, the “unusual” result reached by the plain text of the PLRA is simply that once a prisoner has had three suits dismissed, he may no long-
III
The majority fails to appreciate the strain that its rule places upon the federal courts. Silva‘s case is a prime example. In his time in prison, he has filed no less than fourteen causes of action in various federal courts. Frivolous prisoner claims create inordinate pressure on the federal docket, and the course of Silva‘s repeated litigation is just one of many such examples. In fact, some 20,000 civil cases are brought each year by prisoners either alleging civil rights violations or challenging prison conditions. See Admin. Office of the U.S. Courts, Judicial Business of the United States Courts 145 (2010). By one estimate, nearly twenty percent of these cases are dismissed as frivolous, not to mention the almost forty percent that are dismissed because of a prisoner‘s failure to comply with court rules. See Bureau of Justice Statistics, U.S. Dep‘t of Justice, Challenging the Conditions of Prisons and Jails 20 (1994); see also Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir.2002) (“The PLRA filing fee provisions were enacted to deter the large number of frivolous inmate lawsuits that were ‘clogging’ the federal courts and ‘draining’ limited judicial resources.“).
The rule crafted by the majority will only make the situation worse. The finality rule that the majority imports into section 1915(g) would toll consideration of the dismissal of a frivolous suit until the case has mandated and the time for the prisoner to file a petition for a writ of certiorari has expired. See Maj. Op. at 1099-100. And should the prisoner actually file a petition for a writ of certiorari, the majority would toll consideration of the dismissal until the Supreme Court has denied the petition. See
IV
It is undisputed that Silva had at least three prior civil actions that had been dismissed for failure to state a claim. I believe, therefore, that IFP status is inappropriate and that this appeal should be dismissed unless Silva pays the proper appellate fees.
Accordingly, I respectfully dissent.
DIARMUID F. O‘SCANNLAIN
UNITED STATES CIRCUIT JUDGE