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Larry Lee Moore v. Maricopa County

September 13, 2011

LARRY LEE MOORE,
PLAINTIFF-APPELLANT,
v.
MARICOPA COUNTY SHERIFF'S OFFICE, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding D.C. No. 2:10-cv-01495-GMS-JRI

The opinion of the court was delivered by: Graber, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

August 8, 2011-San Francisco, California

Before: Diarmuid F. O'Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Graber

OPINION

Plaintiff Larry L. Moore is a frequent filer of lawsuits and is indigent. In this action, Plaintiff seeks money damages and other relief against Defendant Maricopa County Sheriff's Office resulting from alleged mistreatment of Plaintiff when he was a prisoner. As Plaintiff had done several times before, he sought to proceed in forma pauperis ("IFP") in this case. The district court held that four previous actions filed by Plaintiff qualified as "strikes" under 28 U.S.C. § 1915(g) and, therefore, denied Plaintiff IFP status. Plaintiff timely appeals. Because only two of the four dismissals identified by the district court qualify as "strikes" under the statute, we reverse and remand for further proceedings.

"Plaintiffs normally must pay $350 to file a civil complaint in federal district court, but 28 U.S.C. § 1915(a)(1) allows the district court to waive the fee, for most individuals unable to afford it, by granting IFP status." Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) (citation omitted). All persons, not just prisoners, may seek IFP status. Id. at 1052 n.1.

But a prisoner faces an additional hurdle. In a statutory provision "nicknamed the 'three-strikes rule,' " id. at 1049, Congress prohibited the grant of IFP status to a prisoner if he or she had filed three or more prior actions, as a prisoner, that were dismissed for certain specified reasons. The provision states:

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.

28 U.S.C. § 1915(g).

Here, the district court held that four of Plaintiff's previously dismissed actions qualify as "strikes." Plaintiff argues that the district court erred because only two of the previously dismissed actions qualify as "strikes." Before reaching the merits of ...


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