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Ninth Circuit: Dismissals Not Strikes Until Appeals Final; Interference With Court Access and Retaliation Claims Reversed

The Ninth Circuit Court of Appeals reversed a lower court's dismissal of a pro se prisoner's interference with court access and retaliation claims. The court also held that dismissals do not count as strikes until appellate remedies are fully exhausted or waived.

On January 16, 2008, Washington prisoner Matthew Silva filed an amended complaint in federal court, alleging interference with court access, retaliation and other claims against Washington Assistant Attorney General Sara Di Vittorio, Attorney General Rob McKenna, Governor Christine Gregoire, and officials of the Washington Department of Corrections, Corrections Corporation of America and Trans-Cor Corporation, a prisoner transport company. On initial screening under 28 U.S.C. § 1915A, the district court dismissed Silva's suit for failure to state a claim.

The Ninth Circuit first rejected Defendants' argument that the appeal should be dismissed because Silva had three "strikes" under 28 U.S.C. § 1915(g) of the Prison Litigation Reform Act. Joining a majority of its Sister Circuits, the court held "that a district court's dismissal of a case does not count as a 'strike' . . . until the litigant has exhausted or waived his opportunity to appeal." If no appeal is filed, the dismissal becomes a strike when the time to appeal expires. An appealed dismissal "ripens into a ‘strike’ . . . on '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 . . . expired if he did not." The Majority found that "only the Seventh Circuit has held otherwise." Since three of the five dismissals Defendants rely upon were not final when Silva filed his appeal, he did not have three strikes under § 1915(g).

Turning to Silva's court access claim, the court noted that Lewis v. Casey, 518 U.S. 343 (1996) "does not speak to a prisoner's right to litigate in the federal courts without unreasonable interference." The Ninth Circuit, like the Sixth and Seventh Circuits, however, 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." See also: John L. v. Adams, 969 F.2d 228, 235 (6th Cir. 1992); and Snyder v. Nolen, 380 F.3d 279, 290 (7th Cir. 2004).

The Court ultimately reversed the dismissal of Silva's court access claim, holding "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." Silva alleged a valid court access claim when he alleged that Defendants repeatedly transferred him "to hinder his ability to litigate pending lawsuits" and seized and withheld all of his legal files.

The court also reversed the dismissal of Silva's retaliation claim, finding that his allegations are "'the very archetype of a cognizable First Amendment retaliation claim.'" (quoting Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005)). See: Silva v. DiVittorio, 658 F.3d 1090 (9th Cir. 2011).

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Related legal case

Silva v. DiVittorio