Kasey Hoffmann v. L. Pulido , 928 F.3d 1147 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KASEY F. HOFFMANN, No. 18-15661
Plaintiff-Appellant,
D.C. No.
v. 1:18-cv-00209-
AWI-SKO
L. PULIDO, Correctional Officer at
CSATF-SP; C. SMITH, Correctional
Lieutenant at CSATF-SP, OPINION
Defendants-Appellees,
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
Appellee-Intervenor.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted May 17, 2019
San Francisco, California
Filed July 8, 2019
Before: J. Clifford Wallace, Sandra S. Ikuta,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
2 HOFFMANN V. PULIDO
SUMMARY*
Prisoner Civil Rights
The panel vacated the district court’s order dismissing a
prisoner 42 U.S.C. § 1983 lawsuit for failure to pay the
required filing fee, and remanded.
The district court determined that at least three of
plaintiff’s prior actions had been dismissed for failure to state
a claim or because they were frivolous. Accordingly, the
court reasoned that the Prison Litigation Act’s three-strikes
provision, 28 U.S.C. § 1915(g), barred plaintiff from bringing
an action in forma pauperis.
The panel held that only two of the three identified prior
dismissals qualified as strikes, and therefore, on the basis of
the record, plaintiff was not disqualified from filing an action
in forma pauperis.
The panel first rejected plaintiff’s argument that pursuant
to Williams v. King, 875 F.3d 500, 504–05 (9th Cir. 2017),
the dismissal of one of the prior actions did not qualify as a
strike because in that lawsuit only plaintiff had consented to
proceed before the magistrate judge and therefore the
magistrate judge lacked the authority to dismiss the
complaint. The panel held that raising that challenge in this
subsequent action amounted to a collateral attack on the
judgment, and that the previous judgment did not fall into
one of the narrowly circumscribed circumstances that would
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HOFFMANN V. PULIDO 3
permit that judgment to be declared void pursuant to Federal
Rule of Civil Procedure 60(b)(4).
The panel next held that the dismissal of another of
plaintiff’s previous actions, in part for lack of standing, did
not properly qualify as a strike. The panel held that even if
certain claims in a prisoner’s lawsuit are dismissed as
frivolous or malicious, or for failure to state a claim, that
dismissal will not qualify as a strike if there are other claims
that are either not dismissed or are dismissed for different,
non-enumerated reasons. The panel held that because a
dismissal for lack of standing is a dismissal for lack of
subject-matter jurisdiction, the case as a whole was not
dismissed on the grounds enumerated in § 1915(g).
Accordingly, the panel concluded that the dismissal of that
action did not qualify as a strike. The panel vacated the
district court’s order dismissing plaintiff’s case, and
remanded for proceedings consistent with its opinion.
COUNSEL
Amir Ali (argued), Roderick & Solange, Washington, D.C.,
for Plaintiff-Appellant.
Misha D. Igra (argued), Supervising Deputy Attorney
General; Monica N. Anderson, Senior Assistant Attorney
General; Xavier Becerra, Attorney General; Office of the
Attorney General, Sacramento, California; for Appellee-
Intervenor.
4 HOFFMANN V. PULIDO
OPINION
CHRISTEN, Circuit Judge:
Kasey Hoffmann, a state prisoner, challenges the district
court’s order dismissing his § 1983 lawsuit claiming unlawful
retaliation in violation of the First Amendment.1 Hoffmann’s
complaint was dismissed for failure to pay the required filing
fee. The district court determined that at least three of
Hoffmann’s prior actions had been dismissed for failure to
state a claim or because they were frivolous. Accordingly,
the court reasoned that 28 U.S.C. § 1915(g) barred Hoffmann
from bringing an action in forma pauperis. Because we
determine that one of Hoffmann’s previous actions was not
dismissed for a qualifying reason under § 1915(g), we vacate
the district court’s order dismissing this case and remand for
proceedings consistent with this opinion.
I.
The Prison Litigation Reform Act (PLRA) instituted a
“three-strikes” rule in an effort to disincentivize frivolous
prisoner litigation. 28 U.S.C. § 1915. Pursuant to the PLRA,
once a prisoner has had three actions dismissed as frivolous
or malicious, or for failure to state a claim upon which relief
may be granted, that prisoner is no longer permitted to file an
action in forma pauperis unless the prisoner is in imminent
danger of serious physical injury. 28 U.S.C. § 1915(g).
1
Multiple spellings of the petitioner’s last name appear throughout
the record. We use “Hoffmann” because that is the spelling he used in
handwritten documents he prepared himself.
HOFFMANN V. PULIDO 5
Hoffmann is currently a state prisoner incarcerated in
California, where he has filed a number of actions
challenging aspects of his confinement. The complaint in this
case brings § 1983 claims against two prison guards for
allegedly retaliating against Hoffmann after he complained
about the prison’s kosher menu. There are, however, no
allegations that Hoffmann faces an imminent threat of serious
physical injury. Hoffmann filed this action using the pro se
“Civil Rights Complaint by a Prisoner” form, which
instructed him to identify prior actions he had filed. On the
form, Hoffmann disclosed that he had filed thirteen prior
actions—the actual number was closer to twenty-one—and he
specifically identified three of them. The district court
referred the case to a magistrate judge who identified a
different set of three prior actions filed by Hoffmann that had
been dismissed:
(1) In Hoffmann v. Jones, No. 2:15-CV-01735-MCE-KJN
(Jones), Hoffmann alleged that his free speech rights had
been infringed because he was having trouble receiving
letters and pictures from his family. Jones was dismissed as
duplicative of another action.
(2) In Hoffmann v. California Correctional Health Care
Services, No. 2:16-CV-01691-MCE-AC (CCHCS), Hoffmann
raised privacy claims based on the potential exposure of his
personal information. This action was dismissed on the basis
of sovereign immunity, lack of standing, and the court’s
decision not to exercise supplemental jurisdiction over the
related state-law claims Hoffmann included in the complaint.
(3) In Hoffmann v. Growden, No. 2:15-CV-01431-EFB
(Growden), Hoffmann claimed that he was falsely imprisoned
because he was not informed that he could post bail. After
6 HOFFMANN V. PULIDO
Hoffmann consented to proceed before a magistrate judge,
but before the government had granted its consent, Growden
was dismissed for failure to state a cognizable claim.
On the basis of the three prior dismissals identified by the
court, the magistrate judge issued an order asking Hoffmann
to show cause why recommendation should not issue to the
district court “to deny Plaintiff’s in forma pauperis
application and to dismiss this action without prejudice[.]”
Hoffmann failed to respond within the allotted twenty-one
days, and the district court dismissed the case for failure to
pay the required filing fee. The court explained that because
Jones, CCHCS, and Growden qualified as strikes under
§ 1915(g), Hoffmann was ineligible for in forma pauperis
status. The district court specifically ruled that the Growden
dismissal qualified as a strike, even though that case had been
dismissed by a magistrate judge who had not received both
parties’ consent to proceed and the district court’s order
followed our decision in Williams v. King, 875 F.3d 500,
504–05 (9th Cir. 2017) (holding that magistrate judges
require consent from all parties before they have authority to
issue dispositive rulings).
A few days after the dismissal of this case, the district
court received Hoffmann’s response to the show cause order.
The response appeared to have been held up in the prison’s
mail system, but it was timely submitted so the district court
considered it. Hoffmann contended that dismissals without
prejudice should not count as strikes under the PLRA; that the
“strike counter” resets if a prisoner is released and then
reincarcerated; and that the merit of some of his prior actions
should outweigh his strikes. The district court rejected all of
Hoffmann’s arguments and declined to vacate its order
dismissing Hoffmann’s complaint.
HOFFMANN V. PULIDO 7
Hoffmann filed this timely appeal. We review de novo
the district court’s application and interpretation of the
PLRA’s three strikes requirement. Andrews v. King,
398 F.3d 1113, 1118 (9th Cir. 2005).
II.
The State contends that Hoffmann forfeited the arguments
raised in this appeal because they were not raised in his pro
se response to the district court order to show cause. Our
review of new arguments is discretionary, Smith v. Marsh,
194 F.3d 1045, 1052 (9th Cir. 1999); see also United States
v. Northrop Corp., 59 F.3d 953, 957 n.2 (9th Cir. 1995), but
this is an appropriate circumstance for exercising our
discretion to review new arguments because, as a pro se
prisoner, Hoffmann was poorly situated to make relatively
complex arguments related to collateral attack and res
judicata. Further, his new arguments raise only legal
questions that do not involve or require any additional fact-
finding. Northrop Corp., 59 F.3d at 957 n.2 (“We can
exercise that discretion to consider a purely legal question
when the record relevant to the matter is fully developed.”).
We also note that the district court preemptively ruled on
Hoffmann’s argument that the magistrate judge lacked the
authority to dismiss Growden. Therefore, by reaching that
argument, we do not risk ruling on issues that the district
court did not have a chance to address. See Lebron v. Nat’l
R.R. Passenger Corp., 513 U.S. 374, 379 (1995) (“[W]e
would ordinarily feel free to address [the party’s new claim],
since it was addressed by the court below.”).
8 HOFFMANN V. PULIDO
III.
Hoffmann first argues that the dismissal of Growden does
not qualify as a prior strike.2 Specifically, he invokes our
recent decision in Williams to argue that the magistrate judge
lacked the authority to dismiss the Growden complaint, so the
dismissal order is effectively void and does not constitute a
strike under the PLRA. We disagree. For the reasons
explained below, we conclude that Hoffmann cannot escape
the consequences of the prior judgment in Growden through
an untimely collateral attack.
After Williams, there is no dispute that a magistrate judge
lacks the authority to dismiss a case unless all parties have
consented to proceed before the magistrate judge. Williams,
875 F.3d at 504–05. It is also undisputed that only Hoffmann
had consented to proceed in Growden when the magistrate
judge dismissed Hoffmann’s complaint. Nevertheless, raising
that challenge in this subsequent action amounts to a
collateral attack on the Growden judgment, and the Supreme
Court has long recognized that collateral attacks are
disfavored. See, e.g., Chicot Cty. Drainage Dist. v. Baxter
State Bank, 308 U.S. 371, 378 (1940). Collateral attacks run
afoul of the court’s strong interests in the finality of
judgments. See Henderson v. Kibbe, 431 U.S. 145, 154 n.13
(1977). “Even objections to subject-matter jurisdiction”—
like the challenge here—“must be raised while the lawsuit is
still pending; they may not be raised for the first time by way
of collateral challenge in a subsequent action.” City of S.
Pasadena v. Mineta, 284 F.3d 1154, 1157 (9th Cir. 2002); see
2
Hoffmann does not challenge the district court’s determination that
the dismissal in Jones counts as a strike under the PLRA.
HOFFMANN V. PULIDO 9
also Snell v. Cleveland, Inc., 316 F.3d 822, 827 (9th Cir.
2002) (per curiam).
We recognize that Federal Rule of Civil Procedure
60(b)(4) expressly allows for final judgments to be declared
void in some circumstances, including certain limited
situations in which the court lacked subject-matter
jurisdiction to enter the judgment in the first place. See
Yanow v. Weyerhaeuser S.S. Co., 274 F.2d 274, 278 n.7 (9th
Cir. 1958). But the scope of what constitutes a void judgment
is narrowly circumscribed, and judgments are deemed void
only where the assertion of jurisdiction is truly unsupported.
Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984); see also
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,
271 (2010) (“[A] judgment is void because of a jurisdictional
defect [only in the] exceptional case in which the court that
rendered judgment lacked even an ‘arguable basis’ for
jurisdiction.”).
The principle that a void judgment must lack even a
colorable basis ultimately stems from the court’s “jurisdiction
to determine jurisdiction.” Jones, 741 F.2d at 248. Because
federal courts are tribunals of limited jurisdiction, they have
both the inherent authority and the responsibility to consider
their own jurisdiction. In re Martinez, 721 F.2d 262, 264 (9th
Cir. 1983). If any jurisdictional foible could be the basis of
a voidness challenge, litigants would have unending
opportunities to second-guess a court’s legal determination as
to its jurisdiction outside of the typical appellate review
process, and the court’s interest in finality would be
undermined. Jones, 741 F.2d at 248 (“In the interests of
finality, the concept of void judgments is narrowly
construed[.]”).
10 HOFFMANN V. PULIDO
Applying these principles, we conclude that the judgment
in Growden does not fall into the narrowly circumscribed set
of void judgments described in Jones and United Student Aid
Funds, Inc. Prior to Williams, magistrate judges routinely
dismissed actions without receiving consent from the
government,3 so there was plainly an “arguable basis” for the
court’s assertion of jurisdiction in Growden. See United
Student Aid Funds, Inc., 559 U.S. at 271. At worst, the
magistrate judge in Growden made an error regarding the
contours of a magistrate judge’s authority pursuant to
28 U.S.C. § 636. Such an error is “not . . . equivalent to
acting with total want of jurisdiction and does not render the
judgment a complete nullity.” Jones, 741 F.2d at 248.
IV.
We next consider whether the dismissal in Hoffmann’s
CCHCS action properly qualifies as a PLRA strike. We
conclude that it does not.
To qualify as a strike under § 1915(g), a prisoner’s prior
case must have been dismissed because it was “frivolous,
malicious, or fail[ed] to state a claim upon which relief may
be granted[.]” Our court expressly adopted the District of
Columbia Circuit’s reasoning in Thompson v. DEA, 492 F.3d
428, 437 (D.C. Cir. 2007), and held that dismissals for lack of
3
See, e.g., Lester v. J.P. Morgan Chase Bank, 926 F. Supp. 2d 1081,
1085 n.2 (N.D. Cal. 2013); Ornelas v. De Frantz, No. 00-CV-1067-JCS-
PR, 2000 WL 973684, at *2 n.2 (N.D. Cal. 2000); see also Wilhelm v.
Rotman, 680 F.3d 1113, 1118 n.3, 1123 (9th Cir. 2012) (affirming
magistrate judge’s dismissal of action against unserved, and therefore
unconsenting, defendant).
HOFFMANN V. PULIDO 11
jurisdiction do not fall within the scope of the PLRA’s
enumerated grounds:
The text of § 1915(g) provides that a previous
case qualifies as a “strike” if it “was
dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which
relief may be granted.” “Surely, there is
nothing necessarily frivolous or malicious in
bringing an action for which the court lacks
jurisdiction.”
...
Like the District of Columbia Circuit, we
conclude that Congress intended for the three-
strikes rule to count 12(b)(6) dismissals but
not 12(b)(1) dismissals.
Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890,
893–94 (9th Cir. 2011) (quoting Thompson, 492 F.3d at 437).
Prior binding precedent also establishes that to qualify as
a strike for § 1915(g), a case as a whole, not just some of its
individual claims, must be dismissed for a qualifying reason.
See Andrews v. Cervantes, 493 F.3d 1047, 1054 (9th Cir.
2007); Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d
1048, 1057 (9th Cir. 2016) (“When we are presented with
multiple claims within a single action, we assess a PLRA
strike only when the case as a whole is dismissed for a
qualifying reason under the Act.” (internal quotation marks
omitted)). In other words, even if certain claims in a
prisoner’s lawsuit are dismissed as frivolous or malicious, or
for failing to state a claim, that dismissal will not qualify as
12 HOFFMANN V. PULIDO
a PLRA strike if there are other claims that are either not
dismissed or are dismissed for different, non-enumerated
reasons.
In CCHCS, Hoffmann alleged that his privacy rights were
violated because an unencrypted, password-protected laptop
was stolen and it may have contained sensitive information
about certain inmates. Hoffman v. Cal. Corr. Health Care
Services, et al., 2017 WL 132057, at *2 (E.D. Cal. 2017).
The federal claims against the state agency defendant were
dismissed on sovereign immunity grounds, but the federal
claims against the remaining defendants were dismissed
because Hoffmann’s claims were too speculative to support
Article III standing. Id. at *2–3. The court declined to
exercise supplemental jurisdiction over the state-law claims.
Id. at *3.
Federal courts lack subject-matter jurisdiction over claims
asserted by litigants who lack standing. Cetacean Cmty. v.
Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (“A suit brought
by a plaintiff without Article III standing is not a case or
controversy, and an Article III federal court therefore lacks
subject matter jurisdiction over the suit.” (internal quotation
marks omitted)). Because Hoffmann’s claims in CCHCS
were dismissed, at least in part, for lack of standing, and
because a dismissal for lack of standing is a dismissal for lack
of subject-matter jurisdiction, the case as a whole was not
dismissed on the grounds enumerated in § 1915(g).
Accordingly, we conclude that the dismissal of the CCHCS
action does not qualify as a PLRA strike.
Only two of the prior dismissals identified by the
magistrate judge qualify as strikes, so on the basis of the
record before us, Hoffmann is not disqualified from filing an
HOFFMANN V. PULIDO 13
action in forma pauperis. 28 U.S.C. § 1915(g). We therefore
vacate the district court’s order dismissing Hoffmann’s case,
and remand for proceedings consistent with this opinion.4
VACATED AND REMANDED.
4
Hoffmann does not contest the magistrate judge’s ruling that the
Jones dismissal qualifies as a strike, and the district court has not
determined whether any of Hoffmann’s other prior dismissals qualify. We
leave that determination to the district court to reach in the first instance.
We DENY as moot the government’s motion for judicial notice. See
Turnacliff v. Westly, 546 F.3d 1113, 1120 n.4 (9th Cir. 2008).