FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS W.S. RICHEY,

Plaintiff-Appellant,

v.

D. DAHNE,

Defendant-Appellee.

No. 12-36045

D.C. No.

3:12-cv-05060-

BHS

OPINION

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted

October 16, 2015—Seattle, Washington

Filed December 8, 2015

Before: William A. Fletcher and Ronald M. Gould, Circuit

Judges, and David A. Ezra,* District Judge.

Opinion by Judge Gould

* The Honorable David A. Ezra, District Judge for the U.S. District

Court for the District of Hawaii, sitting by designation.
2 RICHEY V. DAHNE

SUMMARY**

Prisoner Civil Rights

The panel denied a motion filed by the appellee which

sought to revoke appellant’s in forma pauperis status on

appeal under the “three strikes” provision of the Prison

Litigation Reform Act, 28 U.S.C. § 1915(g), and the panel

also reversed, in an unpublished memorandum disposition

filed jointly with its opinion, the district court’s dismissal of

appellant’s lawsuit for failure to state a claim, and remanded.

The panelrejected appellee’s contention that appellant did

not qualify for in forma pauperis status because he had

received four strikes before filing his appeal. Addressing the

first strike, the panel held that a magistrate judge’s March

2012 dismissal of appellant’s action did not qualify as a strike

for frivolousness because neither an appeals panel nor

subsequent judges followed the magistrate judge’s reasoning,

indicating that reasonable judges differed on the merits. The

panel further determined that the magistrate judge’s March

2012 dismissal could not be considered a strike for failure to

state a claim because the magistrate considered evidence

submitted by the defendant when making her decision. The

panel therefore construed the March 2012 dismissal as a grant

of summary judgment to the defendant.

The panel agreed that appellant had acquired two strikes

in another case. Addressing an issue left open by the

Supreme Court’s recent decision in Coleman v. Tollefson, 135

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
RICHEY V. DAHNE 3

S. Ct. 1759 (2015), the panel held that a prisoner is entitled to

in forma pauperis status on appeal from the trial court’s

dismissal of a third-strike lawsuit. The panel concluded that

the district court’s dismissal of the complaint in this case did

not constitute a “prior occasion” under the Prison Litigation

Reform Act, and that therefore appellant had not accumulated

a third strike before he filed this appeal.

COUNSEL

Edward A. Piper, Stoel Rives LLP, Portland, Oregon, for

Plaintiff-Appellant.

Haley Beach (argued), Assistant Attorney General,

Corrections Division; Robert W. Ferguson, AttorneyGeneral,

Washington State Office of the Attorney General, Olympia,

Washington, for Defendant-Appellee.

OPINION

GOULD, Circuit Judge:

Thomas W.S. Richey appeals from the district court’s

dismissal of his civil rights action for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). A motions

panel granted Richey’s motion for in forma pauperis (IFP)

status on appeal. Dahne later filed a motion to revoke

Richey’s IFP status under the “three strikes” provision of the

Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). 

Dahne’s motion raises the question whether a prisoner may

maintain IFP status when appealing the dismissal of his thirdstrike lawsuit, an issue left open by the Supreme Court’s
4 RICHEY V. DAHNE

recent decision in Coleman v. Tollefson, 135 S. Ct. 1759,

1764–65 (2015). Because we conclude that the PLRA does

not bar a prisoner from receiving IFP status on appeal of his

third-strike dismissal, we deny Dahne’s motion.1

I

As an inmate at the Stafford Creek Corrections Center,

Richey filed a grievance on November 11, 2011, alleging that

a guard denied him his “right to yard, a shower, and clean

underwear.”2 Richey alleged that he did not know the guard’s

name and that he described her “accurately” as an “extremely

obese Hispanic female guard.” The grievance was returned

to Richey with a note to “Rewrite- appropriately. Just stick

to the issue of what happened, when, who was involved.” 

Richey submitted a revised grievance on November 17, 2011,

containing similar allegations and similar references to the

guard’s weight, with the words “who,” “when,” and “what

happened” inserted into the narrative. The grievance was

again returned to him with an order to “Rewrite as directed. 

Hispanic Female is adiquit [sic]. Extremely Obese is unnecessary and inappropriate.”

1

In a memorandum disposition filed jointly with this opinion, we also

reverse the district court’s dismissal ofRichey’s lawsuit for failure to state

a claim and we remand for further proceedings.

2 On appeal from dismissal for failure to state a claim, we “accept all

factual allegations in the complaint as true and construe the pleadings in

the light most favorable to the nonmoving party.” Taylor v. Yee, 780 F.3d

928, 935 (9th Cir. 2015) (citation omitted).
RICHEY V. DAHNE 5

Rather than rewrite the grievance, Richey wrote a kite3to

the grievance coordinator on November 28, 2011, asking for

clarification of the word “adiquit”and explaining that his

description of the guard’s weight was “necessary and

appropriate in helping him identify her,” as he did not know

her name. He asked the coordinator “not to punish [him] by

rejecting [his] grievance because [the coordinator] disagreed

with [his] choice of language.” When Richey did not receive

a response, he wrote another kite on December 7 asking

“ARE YOU GOING TO PROCESS MY PROPERLY

SUBMITTED GRIEVANCE OR WHAT? I’M NOT

REWRITING IT SO DO YOUR JOB AND PROCESS IT.” 

Dahne responded in writing, “No, due to your decision not to

rewrite as requested your grievance has been administraitevly

[sic] withdrawn.”

Seeking damages, Richey sued Dahne pro se for violating

his First Amendment right “to redress grievances and to be

free of retaliation” and “for violating [his] freedom of

speech.” The district court dismissed Richey’s complaint

under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim, ruling that Richey “provide[d] no authority for

the proposition that insulting a prison guard is protected

conduct” and “failed to allege that his right to redress his

grievances ha[d] been chilled by the official’s refusal to

accept his offensive grievance.” The district court also

revoked Richey’s IFP status at that time.

Richey filed a timely notice of appeal and moved for IFP

status on appeal. A motions panel granted the motion, stating

that its “review of the record indicates that appellant is

3

In prison terminology, a kite is a form used by prison inmates to

communicate with staff.
6 RICHEY V. DAHNE

entitled to proceed in forma pauperis” under 28 U.S.C.

§ 1915(a). After Richey was appointed pro bono counsel and

briefing was completed, Dahne moved to revoke Richey’s

IFP status under the “three strikes” provision of the PLRA. 

See 28 U.S.C. § 1915(g).

II

A litigant generally qualifies for IFP status if he“is unable

to pay [filing] fees or give security therefor.” 28 U.S.C.

1915(a)(1). Congress passed the Prison Litigation Reform

Act in 1996 to “reduce the quantity and improve the quality

of prisoner suits,” instituting several reforms to prevent

prisoners from filing meritless claims in the federal court

system. Jones v. Bock, 549 U.S. 199, 203–04 (2007) (quoting

Porter v. Nussle, 534 U.S. 516, 524 (2002)). One reform was

the introduction of a “three strikes” rule that bars prisoner

litigants from receiving IFP status in a civil action or appeal

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.

28 U.S.C. § 1915(g).

Dahne argues that Richey does not qualify for IFP status

because Richey received four strikes before filing this appeal

on December 17, 2012: dismissal of the complaint in Richey

v. Thaut, No. C11-5680 (W.D. Wash. Mar. 26, 2012) (Thaut
RICHEY V. DAHNE 7

I); dismissal of another civil complaint, Richey v. Thaut, No.

C11-5755 (W.D. Wash. May 16, 2012) (Thaut II); dismissal

of the appeal in that case, Richey v. Thaut, No. 12-35632 (9th

Cir. Nov. 15, 2012) (Thaut III); and the district court’s

dismissal of the complaint in this case. “[O]nce a prisoner

has been placed on notice of the potential disqualification

under § 1915(g) by either the district court or the defendant,

the prisoner bears the ultimate burden of persuading the court

that § 1915(g) does not preclude IFP status.” Andrews v.

King, 398 F.3d 1113, 1120 (9th Cir. 2005).

We review de novo the “interpretation and application” of

the PLRA’s three strikes provision. Id. at 1118. This

includes de novo review of whether a district court correctly

issued a strike under the PLRA in a prior case. See id. at

1120–21 (declining to accept district court’s characterization

of a prior dismissal as a strike); Belanus v. Clark, 796 F.3d

1021, 1032 & n.3 (9th Cir. 2015) (Fernandez, J., concurring

in part and dissenting in part). Reviewing the dismissals that

Dahne claims constitute “strikes” against Richey, we

conclude that Richey has not received “three strikes” and is

thus entitled to IFP status.

A. Richey v. Thaut, No. C11-5680 (W.D. Wash. Mar.

26, 2012) (Thaut I)

Thaut I was a civil complaint containing allegations

similar to this case: Richey submitted a grievance for being

denied his right to shower by an “extremely obese female

Hispanic guard,” but when Thaut asked Richey to rewrite the

grievance without “objectionable language,” Richey sued

instead. The magistrate judge determined that Richey did not

exhaust his administrative remedies because he “simplyfailed

to follow the prescribed procedure and failed to amend his
8 RICHEY V. DAHNE

grievance when he was asked to do so,” recommending

dismissal without prejudice and “that the dismissal count as

a strike.” The magistrate judge reasoned that Richey’s failure

to exhaust rendered his claim “frivolous” because Richeywas

“very familiar with the prison grievance system and the

requirements for pleading a civil rights action.” The district

court summarily adopted the magistrate judge’s

recommendation.

On appeal, we affirmed the dismissal of Thaut I, see

Richey v. Thaut, 509 F. App’x 659 (9th Cir. 2013), but the

panel did not follow the magistrate judge’s reasoning. 

Instead, we relied on an alternate argument, holding that

“[t]he district court did not clearly err in finding that Richey

was required to appeal the non-grievability determination to

the grievance program manager and failed to do so.”4Id. at

660. That we declined to follow the magistrate judge’s

reasoning raises a question about its correctness; notably, we

did not assess a strike on appeal.

Additionally, when the magistrate judge

here—incidentally the same magistrate judge as in Thaut

I—was presented with a similar fact pattern, she did not rely

on the same reasoning as she did in Thaut I. Instead, she

recommended dismissal on exhaustion grounds for reasons

similar to our decision affirming Thaut I on appeal: that

Richey “did nothing to advance his complaint that Defendant

4 Thaut’s brief on appeal primarily echoed the magistrate judge’s

conclusion that Richey needed to file an amended grievance before suing,

but our conclusion was based on an alternative argument that Thaut

mentioned only in passing: that Richey “had the opportunity to request

review of his second grievance that was found not grievable to the

Grievance Program Manager,” but “chose not to avail himself of this

procedure.” But see note 5, infra.
RICHEY V. DAHNE 9

Dahne had refused to ‘process his grievance for no good

reason.’” She also characterized this suit as “frivolous” and

recommended it count as a strike. The district court did not

adopt her recommendation, however—the district judge

expressed hesitation about the correctness of the magistrate

judge’s ruling5and requested additional briefing on the

exhaustion issue. Dahne then withdrew his motion to dismiss

for failure to exhaust administrative remedies.

Because subsequent judges—including the magistrate

judge herself in a later case—did not follow the reasoning by

which the magistrate judge dismissed Thaut I for nonexhaustion, we conclude that reasonable judges may differ

about the merits of her conclusion. The dismissal in Thaut I

was not a strike for frivolousness. See Neitzke v. Williams,

490 U.S. 319, 325 (1989) (defining frivolousness under the

IFP statute as having no legal issues “arguable on their

merits”) (quoting Anders v. California, 386 U.S. 738, 744

(1967)).

Nor can the dismissal in Thaut I be considered a strike for

“fail[ure] to state a claim upon which relief may be granted,”

28 U.S.C. § 1915(g), i.e., dismissal under Fed. R. Civ. P.

12(b)(6). See Andrews, 398 F.3d at 1121 (equating § 1915(g)

with Rule 12(b)(6)). The magistrate judge in Thaut I treated

the motion to dismiss for failure to exhaust administrative

remedies as “an unenumerated 12(b) motion,” following

5 While our decision Richey v. Thaut, 509 F. App’x 659 (9th Cir. 2013),

concluded that “[t]he district court did not clearly err in finding that

Richey was required to appeal the non-grievability determination to the

grievance program manager and failed to do so,” id. at 660, the record in

this case showed that under the prison’s policies, a “request for rewriting

. . . can not be appealed to the Grievance Program Manager.”
10 RICHEY V. DAHNE

Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). We

later overruled Wyatt en banc, clarifying that “failure to

exhaust is more appropriately handled under the framework

of the existing rules,” such as Rule 12(b)(6) and Rule 56

summary judgment. Albino v. Baca, 747 F.3d 1162, 1166

(9th Cir. 2014) (en banc), cert. denied sub nom. Scott v.

Albino, 135 S. Ct. 403 (2014). If the district court

“consider[s] evidence submitted by the parties in reaching its

decision, we construe the district court’s order as a grant of

summary judgment on the issue of exhaustion.” Williams v.

Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015); see also

Albino, 747 F.3d at 1166.

In Thaut I, failure to exhaust was not “clear on the face of

the complaint,” Albino, 747 F.3d at 1166, and the magistrate

judge considered a declaration about the prison grievance

system submitted by defendant Thaut when making her

decision. Thaut I was therefore not dismissed for failure to

state a claim, but was rather a grant of summary judgment to

the defendant. Consequently, it was not a strike under the

PLRA.

B. Richey v. Thaut, No. C11-5755 (W.D. Wash. May

16, 2012) (Thaut II)

In Thaut II, Richey filed a grievance after he was charged

for envelopes that he never received. Thaut rejected the

grievance because Richey“did not provide an invoice number

for the order of envelopes.” When Richey resubmitted the

grievance with the explanation that he did not have the

number because he did not have a receipt, Thaut classified his

grievance as “withdrawn.” But Richey then submitted a

separate grievance on the same matter that was accepted and

resulted in Richey being refunded, so the district court ruled
RICHEY V. DAHNE 11

that Richey failed to state a plausible claim that Thaut

violated his right to file grievances. This ruling was correct,

and it was Richey’s first strike under the PLRA.

C. Richey v. Thaut, No. 12-35632 (9th Cir. Nov. 15,

2012) (Thaut III)

Richey then appealed the dismissal of Thaut II to us. A

motions panel determined that the appeal was frivolous and

declined to grant Richey IFP status. The panel did not

dismiss the appeal, however—it instead stated that Richey

could still “pursue this appeal despite the court’s finding that

it is frivolous” if he paid the filing fee, noting that

“[o]therwise, the appeal will be dismissed by the Clerk for

failure to prosecute, regardless of further filings.” Richey’s

appeal was then dismissed four weeks later “for failure to pay

the docketing/filing fees in this case.”

In O’Neal v. Price, 531 F.3d 1146 (9th Cir. 2008), we

held that “when a district court disposes of an in forma

pauperis complaint ‘on the grounds that [the claim] is

frivolous, malicious, or fails to state a claim upon which

relief may be granted,’ such a complaint is ‘dismissed’ for

purposes of § 1915(g) even if the district court styles such

dismissal as denial of the prisoner’s application to file the

action without prepayment of the full filing fee.” Id. at 1153

(alteration in original). O’Neal’s reasoning applies equally to

the situation in Thaut III, as we rejected Richey’s request for

IFP status because the appeal was frivolous even though we

did not dismiss the appeal until later when Richey did not pay

the filing fee. The dismissal of the appeal in Thaut III was

Richey’s second strike.
12 RICHEY V. DAHNE

D. The dismissal of the complaint in this case

Dahne argues that Richey received an additional strike

when the district court dismissed the lawsuit at issue here for

failure to state a claim. Dahne cites the Supreme Court’s

recent decision in Coleman v. Tollefson, 135 S. Ct. 1759

(2015). In Coleman, a prisoner had already received two

strikes when a third complaint was dismissed for failure to

state a claim, and he appealed that dismissal. Id. at 1762. 

While that appeal was pending, the prisoner filed multiple

other lawsuits and moved to receive IFP status while doing

so. Id. The Supreme Court concluded that the prisoner was

not entitled to IFP status in those successive suits, holding

that “[a] prior dismissal on a statutorily enumerated ground

counts as a strike even if the dismissal is the subject of an

appeal.” Id. at 1763. The Court, however, left open the

question presented here: whether a prisoner is entitled to IFP

status on “appeal from the trial court’s dismissal of [a] third

complaint instead of [in] an attempt to file several additional

complaints. Id. at 1764–65.6 We conclude that a prisoner is

entitled to IFP status while appealing his third-strike

dismissal.

The Supreme Court in Coleman based its holding on “the

plain language of” § 1915(g), stating that “[l]inguistically

6 Prior to Coleman, the law in this circuit was that “a district court’s

dismissal of a case does not count as a ‘strike’ under § 1915(g) until the

litigant has exhausted or waived his opportunity to appeal,” i.e., “‘the date

of the Supreme Court’s denial or dismissal of a petition for writ of

certiorari, if the prisoner filed one, or from the date when the time to file

a petition for writ of certiorari expired, if he did not.’” Silva v. Di Vittorio,

658 F.3d 1090, 1100 (9th Cir. 2011) (quoting Hafed v. Fed. Bureau of

Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011)). Silva’s holding does not

survive Coleman.
RICHEY V. DAHNE 13

speaking, we see nothing about the phrase ‘prior occasions’

that would transform a dismissal into a dismissal-plusappellate-review.” Id. at 1763. The United States argued as

amicus curiae in Coleman, however, that “[t]he phrase ‘prior

occasions’ is most sensibly read as referring to strikes

imposed in prior-filed suits, not to those imposed in an earlier

stage of the same suit.” Brief for the United States as Amicus

Curiae Supporting Respondents, Coleman v. Tollefson,

135 S. Ct. 1759 (2015) (No. 13-1333), 2015 WL 272362, at

*25.; see also Coleman, 135 S. Ct. at 1765 (noting the

Solicitor General’s argument that “a trial court dismissal

qualifies as a strike only if it occurred in a prior, different,

lawsuit” (emphasis in original)).

We agree with the Solicitor General’s interpretation of

§ 1915. The Supreme Court’s holding in Coleman was based

in part on “the way in which the law ordinarily treats trial

court judgments.” 135 S. Ct. at 1764. While judgments are

immediately preclusive as to successive suits, see id., they are

certainly not preclusive to the panel on appeal. Denying IFP

review of a district court’s third strike dismissal would

prevent us from performing our “appellate function” and

would “freeze out meritorious claims or ossify district court

errors.” Henslee v. Keller, 681 F.3d 538, 543 (4th Cir. 2012)

(citations omitted). Furthermore, the Supreme Court’s

statement in Coleman that a prisoner could refile his fourth

lawsuit IFP if his third strike were reversed on appeal, 135 S.

Ct. at 1764, would be of no consolation if a prisoner could not

appeal the erroneously-issued third strike IFP. And the

Court’s concern in Coleman that a dismissal-plus-appellatereview rule would “produce a leaky filter” allowing a

prisoner to file many frivolous lawsuits while his third strike

dismissal was pending on appeal, id., is not implicated here,
14 RICHEY V. DAHNE

as the prisoner retains IFP status only for the appeal of his

third strike.

The facts of this case exemplify why § 1915(g) should be

construed as allowing appellate review of a third strike. As

explained in the jointly-filed memorandum disposition, the

district court erred in dismissing Richey’s complaint. If

Richey was not entitled to IFP status on appeal, he would

have to pay the filing fee for us to reverse the district court’s

erroneous third strike, which would ironically make him

eligible again for IFP status in successive suits. We do not

think that Congress intended such a peculiar system.

We hold that dismissal of the complaint in the action

underlying this appeal does not constitute a “prior occasion”

under the PLRA, and Richey had not accumulated a third

strike before he filed this appeal. Dahne’s motion to revoke

Richey’s IFP status on appeal is denied.