Tommie Lee Harris v. K. HARRIS , Correctional Officer, individual and official capacity

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMMIE LEE HARRIS ,
Plaintiff-Appellant,
v.
K. HARRIS , Correctional Officer,
individual and official capacity,
Defendant-Appellee.
No. 16-55083
D.C. No.
2:15-cv-03104-
ODW-E
OPINION
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted February 6, 2019
Pasadena, California
Filed August 21, 2019
Before: Ronald M. Gould and Jacqueline H. Nguyen,
Circuit Judges, and Algenon L. Marbley,* District Judge.
Opinion by Judge Nguyen
* The Honorable Algenon L. Marbley, United States District Judge
for the Southern District of Ohio, sitting by designation.

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SUMMARY**
Prisoner Civil Rights
The panel reversed the district court’s revocation of a
state prisoner’s in forma pauperis status on the ground that
he had three prior strikes under the Prison Litigation Reform
Act, 28 U.S.C. § 1915(g), and remanded.
One of plaintiff’s prior cases was dismissed because,
after concluding that he failed to state a federal claim, the
district court declined to exercise supplemental jurisdiction
over the remaining state claims. Another was dismissed
because plaintiff failed to serve one defendant, and several
other defendants enjoyed quasi-judicial immunity.
The panel held that because the prior cases were not
dismissed on grounds enumerated in § 1915(g), they did not
qualify as strikes. Following the D.C. Circuit’s decision in
Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1152
(D.C. Cir. 2017), the panel first held that a dismissal based
on a district court’s decision not to exercise supplemental
jurisdiction is not an enumerated ground under § 1915(g).
The panel further held that dismissal due to a failure to serve
is plainly not a dismissal on the ground that the suit was
frivolous, malicious, or failed to state a claim. It is therefore
not a strike under § 1915(g). Finally, the panel held that the
language and structure of the Prison Litigation Reform Act
make clear that immunity-based dismissals generally do not
fall within § 1915(g).
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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COUNSEL
Daniel A. Arellano (argued), Ballard Spahr LLP, Phoenix,
Arizona, for Plaintiff-Appellant.
Todd Grabarsky (argued), Deputy Attorney General;
Thomas S. Patterson and Misha D. Igra, Supervising Deputy
Attorneys General; Monica N. Anderson, Senior Assistant
Attorney General; Xavier Becerra, Attorney General; Office
of the Attorney General, Los Angeles, California; for
Defendant-Appellee.
OPINION
NGUYEN, Circuit Judge:
Tommie Lee Harris, a state prisoner, appeals the district
court’s decision revoking his in forma pauperis (“IFP”)
status on the ground that he had three prior strikes under the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C.
§ 1915(g). One of Harris’s prior cases was dismissed
because, after concluding that he failed to state a federal
claim, the district court declined to exercise supplemental
jurisdiction over the remaining state claims. Another was
dismissed because Harris failed to serve one defendant, and
several other defendants enjoyed quasi-judicial immunity.
We hold that because these cases were not dismissed on
grounds enumerated in § 1915(g), they do not qualify as
strikes. We therefore reverse and remand.
I.
Harris filed the current lawsuit against a correctional
officer under 42 U.S.C. § 1983 for use of excessive force.
Harris also filed for IFP status. The district court found that

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Harris had already accrued three strikes and revoked his IFP
status. Harris appeals. He admits that he has two strikes1
under the PLRA but argues that two of his other prior
lawsuits are not strikes, Harris v. Bick, No. 2:98-cv-01197-
LKK-DAD (E.D. Cal. Nov. 17, 1998) and Harris v. Nielsen,
No. 2:98-mc-00225-WBS-GGH (PC) (E.D. Cal. Apr. 27,
2001).
A. Harris v. Bick
In Harris v. Bick, Harris sued various prison medical
professionals, including Dr. Bick, alleging he received
inadequate medical care in violation of state law and the
Eighth Amendment. After Harris attempted to voluntarily
dismiss Dr. Bick, the district court found that the allegations
against the remaining defendants failed to state an Eighth
Amendment claim, and “in the absence of a cognizable
federal claim, the court [declined] to exercise supplemental
jurisdiction over [Harris’s] state contract and debtor-creditor
claims.” On appeal, we affirmed the district court’s
dismissal on the Eighth Amendment claims and its decision
not to exercise supplemental jurisdiction.
B. Harris v. Nielsen
In Harris v. Nielsen, Harris’s claims against various
medical professionals arose out of their participation in
preparing mental health reports submitted in connection with
his parole revocation hearings. Harris named defendants E.
Titus, J. Choy, G. Phelps, J. Karuzas, and C. Carter. The
district court dismissed one defendant, Carter, because the
1 Harris concedes that Harris v. Geraghty, No. 98-CV-861-GEB-
JFM (E.D. Cal. May 25, 1999) (dismissed for failure to state a claim),
and Harris v. Nielsen, No. 01-15006 (9th Cir. Jun. 19, 2001) (appeal
dismissed as frivolous), count as strikes under the PLRA. We agree.

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HARRIS V. H ARRIS 5
United States Marshal was unable to serve him despite
attempts at two workplaces. The court also dismissed three
defendants, Titus, Choy, and Phelps, because, as court-
appointed psychologists, psychiatrists, and counselors at the
parole hearings, they were protected by quasi-judicial
immunity. The district court granted defendant Karuzas’s
motion for judgment on the pleadings for the same reason.
The question before us is whether these two suits, Bick
and Nielsen, qualify as strikes under § 1915(g).2
II.
We interpret § 1915(g) de novo. Andrews v. King,
398 F.3d 1113, 1118 (9th Cir. 2005). The denial of IFP
status is appealable as a final judgment. Id. We have
jurisdiction under 28 U.S.C. § 1291.
III.
A. The PLRA’s Section 1915(g)
Litigants who qualify for IFP status are excused from
prepaying court fees and costs. The PLRA’s “three strikes”
provision, designed to discourage vexatious and voluminous
prisoner litigation, bars a prisoner from bringing a civil
action or an appeal IFP if the prisoner has three prior actions
that were “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) (emphasis
added).
2 We GRANT the pending motions for judicial notice (Docket Nos.
21, 37, and 47).

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“[I]n a statutory construction case, analysis must begin
with the language of the statute itself; when the statute is
clear, judicial inquiry into its meaning, in all but the most
extraordinary circumstance, is finished.” Talamantes v.
Leyva, 575 F.3d 1021, 1023 (9th Cir. 2009) (alterations
omitted) (quoting United States v. Carter, 421 F.3d 909, 911
(9th Cir. 2005)). Here, the statutory language is clear—if a
case was not dismissed on one of the specific enumerated
grounds, it does not count as a strike under § 1915(g).
A defendant challenging a plaintiff’s IFP status bears the
initial burden of showing through documentary evidence
that a plaintiff had three prior strikes. King, 398 F.3d
at 1118–20. If a defendant presents a prima facie case, then
“the burden shifts to the plaintiff to persuade the court that
§ 1915(g) does not apply.” Id. at 1116. In determining
whether a prior dismissal counts as a strike, “we should look
to the substance of the dismissed lawsuit,” and not to how
the district court labelled or styled the dismissal. El-Shaddai
v. Zamora, 833 F.3d 1036, 1047 (9th Cir. 2016) (citing King,
398 F.3d at 1122 n.12) (finding that out of eleven prior suits,
only one counted as a strike); see also Knapp v. Hogan, C.O.,
738 F.3d 1106, 1109 (9th Cir. 2013) (stating that we look to
“the dismissing court’s action and the reasons underlying
it . . . . [T]he procedural mechanism or Rule by which the
dismissal is accomplished, while informative, is not
dispositive.” (internal citation omitted)).
We must also evaluate whether all the claims in a given
suit satisfy the enumerated grounds for strikes, and partial
dismissals of even one claim for a non-qualifying reason will
save an entire case from constituting a strike. See
Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057
(9th Cir. 2016). In other words, “[w]hen we are presented
with multiple claims within a single action, we assess a

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HARRIS V. H ARRIS 7
PLRA strike only when the ‘case as a whole’ is dismissed
for a qualifying reason.” Id. (quoting Andrews v. Cervantes,
493 F.3d 1047, 1054 (9th Cir. 2007), as amended (July 5,
2007)).
B. A Dismissal Based on the Court’s Refusal to Exercise
Supplemental Jurisdiction Does Not Count as a
Strike
Harris argues that the dismissal of Harris v. Bick was due
to the district court’s refusal to exercise supplemental
jurisdiction over his state-law claims after dismissal of his
Eighth Amendment claim, and thus this case does not qualify
as a strike.3 We agree. Dismissal based on a district court’s
decision not to exercise supplemental jurisdiction is not an
enumerated ground under § 1915(g). As then-Judge
Kavanaugh explained, “[w]hen a district court has declined
to exercise supplemental jurisdiction over state-law claims,
the court has not dismissed the state-law claims for failure to
state a claim, nor has the court dismissed the state-law claims
as frivolous or malicious.” Fourstar v. Garden City Grp.,
Inc., 875 F.3d 1147, 1152 (D.C. Cir. 2017). Because the
language of § 1915(g) is plain and unambiguous, a dismissal
on a ground other than frivolousness, maliciousness, or
failure to state a claim will not qualify as a strike. See id.
at 1151–52.
Defendant argues that policy considerations counsel in
favor of counting Bick as a strike. Otherwise, Defendant
urges, a prisoner can easily “strike-proof” a meritless lawsuit
3 Harris also argues that his attempt to voluntarily dismiss Dr. Bick
is an independent ground for not counting this case as a strike. The
parties dispute whether his attempt was sufficient but, in any event, we
need not decide this issue.

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by adding state-law claims, knowing that federal courts are
unlikely to expend limited resources to exercise
supplemental jurisdiction over such claims in the absence of
a cognizable federal claim. Of course, courts are free to
reach state-law claims and dismiss them on an enumerated
strike ground. But even if the policy concerns are warranted,
we must still strictly construe the plain language of the
statute. “It is not a judge’s job to add to or otherwise re-mold
statutory text to try to meet a statute’s perceived policy
objectives. Instead, we must apply the statute as written.”
Fourstar, 875 F.3d at 1152. We follow the D.C. Circuit and
hold that a dismissal due to the district court’s decision not
to exercise supplemental jurisdiction over state-law claims
does not qualify the case as a strike under the PLRA.
C. Neither a Dismissal Due to a Failure to Serve Nor a
Dismissal Based on Quasi-Judicial Immunity
Qualifies as a Strike
Harris argues that Harris v. Nielsen does not qualify as a
strike. The district court dismissed one defendant, Carter,
because the United States Marshal was unable to serve him
despite multiple attempts at two workplaces. A dismissal
due to a failure to serve is plainly not a dismissal on the
ground that the suit was frivolous, malicious, or failed to
state a claim. It is therefore not a strike under § 1915(g).
Defendant resists a plain reading of the statute and argues
that a dismissal of one defendant for failure to serve should
not prevent a case from qualifying as a strike where other
claims were dismissed for frivolousness or failure to state a
claim. But we evaluate the “case as a whole” and dismissal
of even one claim for an unenumerated reason saves the
entire case from counting as a strike. Washington, 833 F.3d
at 1057. Therefore, Nielsen does not qualify as a strike
because one defendant was dismissed for failure to serve.

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Nielsen does not qualify as a strike for an additional,
independent reason. The district court dismissed the
remaining defendants because it found them entitled to
quasi-judicial immunity. Defendant argues that quasi-
judicial immunity falls within the enumerated strike ground
of failure to state a claim. We have not addressed this issue,
but the Eighth Circuit has rejected a similar argument,
holding that “[d]ismissals based on immunity are not among
the types of dismissals listed as strikes in section 1915(g).”
Castillo-Alvarez v. Krukow, 768 F.3d 1219, 1220 (8th Cir.
2014) (per curiam). We agree.
The language and structure of the PLRA make clear that
immunity-based dismissals generally do not fall within
§ 1915(g). Section 1915 sets out the IFP application
procedures and rules regarding payment of court fees in
subsections (a) through (d). Under § 1915(e)(2), regardless
of the filing fee payment, “the court shall [sua sponte]
dismiss the case at any time” if the case:
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief
may be granted; or
(iii) seeks monetary relief against a
defendant who is immune from such
relief,
28 U.S.C. § 1915(e)(2)(B) (emphasis added).
Yet the strike provision, subsection (g), which follows
subsection (e), omits the immunity language as a ground for
a strike. “[W]here Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts

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intentionally and purposefully in the disparate inclusion or
exclusion.” Russello v. United States, 464 U.S. 16, 23
(1983) (quoting United States v. Wong Kim Bo, 472 F.2d
720, 722 (5th Cir. 1972)).
The PLRA also expressly lists immunity-based
dismissals in three other sections, further demonstrating that
Congress intentionally excluded immunity from the strike
provision. For example, in § 1915A, Congress implemented
a screening procedure for civil claims made by incarcerated
plaintiffs against “a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C. § 1915A(a).
When listing the grounds for dismissal while screening a
complaint, Congress included the three enumerated strike
grounds and then added “or [] seeks monetary relief from a
defendant who is immune from such relief,” 28 U.S.C.
§ 1915A(b), mirroring the language in 28 U.S.C.
§ 1915(e)(2)(B) discussed above. Congress intended for the
screening procedure to address immunity because it
expressly listed immunity after frivolousness,
maliciousness, and failure to state a claim. See also
42 U.S.C. § 1997e(c) (stating that the court may dismiss a
case regarding prison conditions or in which administrative
remedies have not been exhausted if it is “frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is
immune from such relief” in subsections 1997e(c)(1) and
(2) (emphasis added)). In sum, Congress’ omission of
immunity-based dismissal from the strike provision in
§ 1915(g) evidences its intent generally not to include this
dismissal ground as a strike.
To be sure, there are rare cases where an affirmative
defense, such as immunity, may be so clear on the face of
the complaint that dismissal may qualify as a strike for

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HARRIS V. H ARRIS 11
failure to state a claim. See, e.g., El-Shaddai, 833 F.3d
at 1044 (recognizing the rarity of such dismissals and
declining to find a strike when the affirmative defense of
administrative exhaustion was not clear on the face of the
complaint); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir.
2014) (en banc) (discussing the “rare cases” when failure to
exhaust is clear from the face of the complaint); Hafed v.
Fed. Bureau of Prisons, 635 F.3d 1172, 1178 (10th Cir.
2011) (holding that a prior dismissal on immunity grounds
was a strike where the prisoner “affirmatively asserted facts”
demonstrating immunity (emphasis in original)), abrogated
on other grounds as recognized by Carr v. Zwally, 760
F. App’x 550, 558 (10th Cir. 2019). There are also cases
where an affirmative defense like immunity is so obvious
that the suit is frivolous, and dismissal counts as a strike. See
Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (holding
that a dismissal for judicial immunity was a strike because
the claim was frivolous). But these are exceptional cases
where the affirmative defense is readily apparent without
resort to any additional information outside the four corners
of the complaint. Such will rarely be the case with
immunity-based defenses. See, e.g., Milstein v. Cooley, 257
F.3d 1004 (9th Cir. 2001) (discussing at length the
complexities of prosecutorial immunity within the context of
a Rule 12(b)(6) dismissal). And here, that is decidedly not
the case. The district court moved beyond the Nielsen
complaint not only to consider the defendants’ roles, titles,
and actions, but to grapple with the legal analysis entitling
the defendants to quasi-judicial immunity. Because the
court dismissed Harris’s Nielsen complaint on immunity
grounds rather than the grounds that it was frivolous,
malicious, or failed to state a claim, we conclude that Nielsen
is not a strike under § 1915(g).

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IV.
The “denial of [IFP] status effectively, if not physically,
denies many indigent prisoners access to the courts.”
Simone Schonenberger, Access Denied: The Prison
Litigation Reform Act, 86 Ky. L.J. 457, 474 (1998). In
§ 1915(g), Congress said what it meant, and we will construe
its language strictly and narrowly. “Our task is to give effect
to the will of Congress, and where its will has been expressed
in reasonably plain terms, that language must ordinarily be
regarded as conclusive.” Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 570 (1982) (internal quotation marks
omitted) (quoting Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980)). Unless an
incarcerated litigant has accrued three strikes on grounds
plainly enumerated in § 1915(g), she is entitled to IFP status.
Dismissals for supplemental jurisdiction, failure to serve,
and quasi-judicial immunity are not grounds giving rise to
strikes under § 1915(g) of the PLRA. With only two strikes
from prior litigation, Harris may proceed in this suit with IFP
status as long as he is otherwise eligible for IFP status.
REVERSED AND REMANDED.

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