Matthew Silva v. Sara Olson, et al

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, RICHARD A. PAEZ and VIRGINIA M. KENDALL) Each party shall bear its own costs. REVERSED IN PART, AFFIRMED IN PART, AND REMANDED Judge: DFO Dissenting, Judge: VMK Authoring. FILED AND ENTERED JUDGMENT. [7905402]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW G. SILVA,
Plaintiff-Appellant,
v.
SARA DI VITTORIO; JAMES C.
MILLER; WILLIAM LUCAS; SCOTT
HATTEN; CORRECTIONS CORPORATION
OF AMERICA; ROB MCKENNA;
CHRISTINE O. GREGOIRE; HAROLD
CLARKE; JAMES THATCHER; MAGGIE
MILLER-STOUT; RICHARD HEWSON;
RAINVILLE; JOHN ARNOLD; LERCH;
WESTFALL; RENATE ARCHER; JOHN
FERGUSON; JOHN GAY; SAMUEL
ROGERS; NAPIER; MARY VERDUGO;
TRANS-COR CORPORATION,
Defendants-Appellees.





No. 08-15620
D.C. No.
2:07-cv-01696JAT-ECV
OPINION



Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted December 8, 2010*
Seattle, Washington
Filed September 26, 2011

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: Diarmuid F. O’Scannlain and Richard A. Paez,
Circuit Judges, and Virginia M. Kendall,** District Judge.
Opinion by Judge Kendall;
Dissent by Judge O’Scannlain

**The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.

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COUNSEL
Andrew M. Jacobs and Robert A. Bernheim, Snell & Wilmer
L.L.P, Tucson, Arizona, for plaintiff-appellant Matthew G.
Silva.
Robert M. McKenna, Attorney General, and Andrea Vingo,
Assistant Attorney General, Olympia, Washington, for the
defendant-appellees.

OPINION
KENDALL, District Judge:
Matthew Silva (“Silva”), a Washington State prisoner,
appeals the district court’s sua sponte dismissal of his pro se
civil rights action for failure to state a claim upon which relief
may be granted. We have jurisdiction under 28 U.S.C. § 1291
to review the district court’s order dismissing Silva’s first
amended complaint without leave to amend and, for the reasons set forth below, we reverse in part, affirm in part, and
remand to the district court for proceedings consistent with
this opinion. Specifically, we reverse the district court’s order
dismissing Silva’s right to access the courts, retaliation, and
state law conversion claims and we affirm the district court’s
order dismissing Silva’s RICO claim.
I.
A.

BACKGROUND

Silva’s Complaint

On September 4, 2007, Silva filed a pro se civil rights complaint against Washington Assistant Attorney General Sara

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Olson, referred to on appeal as Sara Di Vittorio (“Di Vittorio”), and three Washington Department of Corrections
(“WDOC”) and Corrections Corporation of America
(“Corrections Corporation”) officials who work at the Florence Correctional Center (“FCC”), where Silva had previously been incarcerated. In his complaint, Silva sought relief
under 42 U.S.C. § 1983 for alleged violations of his First and
Fourteenth Amendment right of access to the courts. He also
alleged supplemental state law claims for conversion and
fraud. Along with his complaint, Silva moved to proceed in
forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).
The district court initially denied Silva’s motion to proceed
IFP, concluding that the Prisoner Litigation Reform Act’s
“three-strikes” provision barred his request to proceed IFP.
See id. § 1915(g).1 The PLRA precludes a prisoner from proceeding IFP if, on three or more prior occasions, he filed an
action or appeal that was dismissed because it was frivolous,
malicious, or failed to state a claim upon which relief may be
granted. Id. Citing Silva v. Washington, No. 2:98-cv-00659WLD (W.D. Wash. Sept. 22, 1998); Silva v. Clarke, No. CV05-414-MWL, 2006 WL 3246499 (E.D. Wash. Nov. 8, 2006);
Silva v. Bush, No. C06-984-JLR (W.D. Wash. Apr. 16, 2007);
and Silva v. Goddard, No. CV-06-02289-JAT (D. Ariz. Mar.
27, 2007), the district court concluded that at least three of the
prior actions Silva had filed in federal court had been dismissed as frivolous, malicious, or because they failed to state
a claim. The district court further found that because Silva
was not under imminent danger of serious physical injury, the
sole statutory exception to the “three-strikes” rule did not
1

Congress enacted § 1915(g) as part of the Prison Litigation Reform Act
of 1995, Pub. L. No. 104-134, 110 Stat. 1321, § 804(d) (“PLRA”). Section
1915(g) is commonly referred to as the “three strikes” provision. See
Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (explaining that,
under § 1915(g) “[s]trikes” are prior cases or appeals that the plaintiff filed
while a prisoner, and which were dismissed “on the ground that [they
were] frivolous, malicious, or fail[ ] to state a claim”). Pursuant to
§ 1915(g), a prisoner with three or more “strikes” cannot proceed IFP.

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apply. See § 1915(g). Accordingly, the district court dismissed Silva’s complaint without prejudice for failure to prepay the filing fee.
Silva moved to reconsider, arguing that two of the four
cases the district court counted as strikes should not count
against him because, at the time he filed his complaint, his
appeals were still pending before this court. The district court
agreed and granted Silva’s motion to reconsider, vacated its
earlier dismissal, and allowed Silva to proceed IFP.
As obligated under 28 U.S.C. § 1915A, the district court
then screened Silva’s complaint to determine whether he had
a cognizable claim for relief. Without reaching the merits of
Silva’s claims, the district court dismissed Silva’s complaint
without prejudice because he had not used the district court’s
approved form for pro se prisoner complaints. The district
court granted Silva leave to file a first amended complaint,
warning him that if he did not follow the pleading requirements, “the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.”
B.

Silva’s first amended complaint

On January 16, 2008, Silva amended his complaint, this
time suing Di Vittorio; Washington State Attorney General,
Rob McKenna (“McKenna”); the Governor of Washington
State, Christine Gregoire (“Gregoire”); a number of WDOC
and Corrections Corporation officials; Corrections Corporation itself; and Trans-Cor Corporation, a prisoner transportation company (collectively “the Defendants”). In his first
amended complaint (“amended complaint”), Silva reasserted
his claim under § 1983 that the Defendants violated his First
and Fourteenth Amendment right to access the courts and also
alleged that the Defendants retaliated against him in violation
of the First Amendment. Specifically, Silva alleged that as
soon as he began pursuing civil rights lawsuits against prison
officials, those officials began transferring him within and

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among prison facilities in Washington and Arizona and confiscating and destroying his legal documents and materials.
According to Silva’s amended complaint, the Defendants’
actions proximately caused at least six cases to be dismissed,
and hampered his ability to report the officials’ misconduct
and to bring any future cases.
In his amended complaint, Silva also added a claim under
the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961-1968. Silva alleged that his
transfer to, and housing in, the FCC violated the RICO statute, specifically contending that the Defendants engaged in
numerous instances of “racketeering activity” in violation of
§ 1961(1), including kidnapping, mail and wire fraud, witness
tampering, and seizure of legal documents. Finally, Silva
alleged that the Defendants’ seizure of his legal files constituted conversion.2
Again the district court screened Silva’s amended complaint pursuant to § 1915A, this time reaching the merits. The
district court concluded that Silva’s amended complaint failed
to state a claim upon which relief could be granted and dismissed the case with prejudice. Specifically, citing Lancaster
Community Hospital v. Antelope Valley Hospital District, 940
F.2d 397, 404 (9th Cir. 1991), the district court determined
that Silva failed to state a RICO claim because he failed to
allege sufficient facts to establish a pattern of racketeering
activity, he failed to allege an injury to his business or property, and because government entities cannot violate RICO.
Additionally, the district court concluded that Silva’s transfer
to the FCC in Arizona did not constitute an act of “kidnapping” under § 1961(1).
As to Silva’s right to access the courts claim, the district
court stated that the right “is only a right to bring petitions or
2

Unlike Silva’s initial complaint, his amended complaint did not include
a fraud claim.

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complaints to the federal court and not a right to discover
such claims or even to litigate them effectively once filed with
a court.” Because the factual allegations underlying Silva’s
access to courts claim were “targeted at his ability to effectively litigate his cases beyond the pleading stage” the district
court determined that Silva failed to state a claim upon which
relief could be granted.
The district court also found that Silva did not state a claim
for retaliation because he failed to identify specific retaliatory
acts carried out by specific defendants and failed to precisely
describe his conduct that prompted the Defendants to retaliate
against him. Finally, the district court concluded that, without
the federal claims, it did not have diversity jurisdiction over
Silva’s claim for common law conversion because Silva failed
to allege an amount in controversy in excess of $75,000. Stating that its “discretion to deny or grant leave to amend is particularly broad where Plaintiff has previously been permitted
to amend his complaint,” and that the defects in Silva’s
amended complaint could not be corrected, the district court
dismissed Silva’s case without leave to amend.
C.

Silva’s appeal

Silva presents three issues on appeal. First, he argues that
the district court erred by dismissing his claim for denial of
the right to access the courts. Despite the statement in his
amended complaint that the Defendants “had a duty under
[the First and Fourteenth Amendments] to facilitate the specified civil actions,” Silva now acknowledges that prison officials have no affirmative duty to help him litigate his claims
once they have been filed. See Lewis v. Casey, 518 U.S. 343,
354 (1996) (holding that the Constitution does not require the
State to “enable the prisoner to discover grievances, and to litigate effectively once in court”) (emphasis in original); Cornett, 51 F.3d at 898 (the right to access the courts “requires
a state to provide a law library or legal assistance only during
the pleading stage of a habeas or civil rights action”). He

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argues instead that prisoners have a right under the First and
Fourteenth Amendments to litigate lawsuits challenging their
sentences or the conditions of their confinement to conclusion
without active interference by prison officials. According to
Silva, this right extends beyond the filing of an initial pleading.
Silva also challenges the district court’s dismissal of his
retaliation claim. Silva contends that in dismissing this claim,
the district court either ignored the allegations in his amended
complaint that supported the claim or imposed an improperly
high pleading standard. Finally, while Silva does not challenge the district court’s dismissal of his RICO and state court
conversion claims, he does contend that the district court
erred by dismissing these claims with prejudice and without
leave to amend.
In response, the Defendants contend that we need not reach
the merits of Silva’s appeal because the PLRA’s “threestrikes” provision bars him from pursuing this appeal without
prepayment of the filing fee. See § 1915(g). The Defendants
therefore ask that Silva’s IFP status be revoked and that his
appeal be dismissed unless Silva prepays the full filing fee
because, they argue, Silva has at least three prior dismissals
that qualify as “strikes” under § 1915(g).3 For support, the
Defendants cite the same four dismissals initially relied on by
the district court—Washington, Bush, Clarke, and Goddard—
and add one more: Silva v. King County, C08-1447-RSM
(W.D. Wash. Jan. 29, 2009).
While Silva admits that two of the five dismissals, Washington and Clarke, count as “strikes,” he disputes that the
3

If a defendant challenges a prisoner’s ability to proceed IFP, “the initial
production burden rests with the defendant[ ].” Andrews, 398 F.3d at
1120. Once the defendant makes out a prima facie case, however, the burden shifts to the prisoner to show that § 1915(g) does not apply. Id. at
1116.

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other three count against him in this appeal. He argues that the
most recent dismissal relied on by the Defendants, King
County, cannot count against him because at the time Silva
filed his notice of appeal in this case, the district court had not
yet dismissed the King County lawsuit. As to the dismissals
in Bush and Goddard, Silva argues similarly that the appeals
of the two dismissal orders were still pending on March 14,
2008 when he filed this appeal, and therefore cannot count as
“strikes” against him here.
II.
A.

DISCUSSION

The PLRA’s “three-strikes” provision

[1] To determine whether Silva may proceed with this
appeal without prepayment of the filing fee, we must interpret
the “three-strikes” rule under the PLRA. See § 1915(g). Specifically, we must consider whether a district court’s dismissal
of a prisoner’s case counts against the prisoner as a “strike”
under § 1915(g) immediately upon the entry of the district
court’s order, or not until it becomes final, that is, after the
prisoner has waived or exhausted his opportunity to appeal.
[2] As in all statutory construction, we “begin with the language employed by Congress and the assumption that the
ordinary meaning of that language accurately expresses the
legislative purpose.” Ileto v. Glock, Inc., 565 F.3d 1126, 1133
(9th Cir. 2009) (quoting FMC Corp. v. Holliday, 498 U.S. 52,
57 (1990)). Section 1915(g) prohibits a prisoner from proceeding IFP if he is an unsuccessful frequent-filer or has a
history of malicious or frivolous litigation:
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

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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.
§ 1915(g). Section 1915(g) does not expressly state whether
a prior dismissal of “an action or appeal” must be final before
it can be considered a ‘strike’, but we think this conclusion is
“fairly implied.” Thompson v. Drug Enforcement Admin., 492
F.3d 428, 432 (D.C. Cir. 2007). The dissent suggests that our
reading of the statute assumes all district court dismissals
under § 1915(g) were erroneous. But we assume nothing more
than what is assumed by § 1291, which grants an appeal as of
right from all final district court decisions. In other words,
reading the statute otherwise would be a departure from the
usual practice under the Federal Rules and would, in certain
cases, “effectively eliminate our appellate function.” Id.; see
28 U.S.C. § 1291 (granting an appeal as of right “from all
final decisions of the district courts of the United States . . .
except where a direct review may be had in the Supreme
Court”); Fed. R. App. P. 3 (setting forth procedures for taking
an appeal as of right). Congress’s silence on this issue is
“strong evidence that the usual practice should be followed.
. . .” See Jones v. Bock, 549 U.S. 199, 212, 216 (2007) (interpreting another section of the PLRA and stating that “when
Congress meant to depart from the usual procedural requirements, it did so expressly”). We therefore agree with Silva
that a dismissal must be final before it counts as a “strike” for
§ 1915(g) purposes.
In so holding, we join the majority of circuits that have
addressed this issue. In Thompson, the D.C. Circuit held that
§ 1915(g) only applies to final dismissals and that, accordingly, “[d]ismissals do not count as strikes until an appeal has
been either waived or resolved.” 492 F.3d at 440. The court
acknowledged that “section 1915(g) nowhere expressly states
that dismissals must be final to count as strikes.” Id. at 432.
It reasoned, however, that “[a] contrary rule would, within

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those narrow set of cases in which the third strike is appealed,
effectively eliminate our appellate function.” Id. According to
the court, “[h]ad Congress intended such an unusual result,
we expect it would have clearly said so.” Id.
In Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996),
the Fifth Circuit held that dismissals under § 1915(g) “include
only those for which appeal has been exhausted or waived.”
Id. at 388. The court stated that “[a]ny other reading of the
statute poses a risk of inadvertently punishing nonculpable
conduct.” Id. at 387. Like the D.C. Circuit, the Fifth Circuit
worried that “[a] hyper-literal reading of the statute might . . .
bar a prisoner’s appeal of an erroneous third strike, since the
appeal would follow three prior dismissals.” Id. at 388. Similarly, both the Tenth and Eighth Circuits have concluded that
a dismissal does not count under § 1915(g) until the appeals
process is completed. Jennings v. Natrona Cnty. Det. Ctr.
Med. Facility, 175 F.3d 775, 779-80 n.3 (10th Cir. 1999);
Campbell v. Davenport Police Dep’t, 471 F.3d 952, 953 (8th
Cir. 2006) (holding that three of the plaintiff’s prior “dismissals could not be counted as strikes when the district court
cited them (or when th[e] appeal was filed), because [the
plaintiff] had not yet exhausted or waived his appeals in those
cases”);4 see also Chavis v. Chappius, 618 F.3d 162, 169 (2d
Cir. 2010) (recognizing that the weight of authority holds that
“when a district court has dismissed a suit in what could be
a prisoner’s third strike, the presumption would seem to be for
the reviewing court to give that dismissal no weight as of
4

See also, e.g., Krier v. Ray, 341 F. App’x 295, 297 (9th Cir. 2009) (citing Thompson, Campbell, Jennings, and Adepegba in holding that the district court erred when it counted the plaintiff’s underlying dismissal as a
strike under § 1915(g)); Nicholas v. Am. Detective Agency, 254 F. App’x
116, 116 (3d Cir. 2007) (unpublished) (“A dismissal does not qualify as
a strike for § 1915(g) purposes unless and until a litigant has exhausted or
waived his or her appellate rights.”); Michaud v. City of Rochester, 248
F.3d 1127, 1127 n.1 (1st Cir. 2000) (citing Jennings and Adepegba for the
proposition that “dismissals by the district court should not be counted
until after a petitioner has exhausted or waived his avenues of appeal”).

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yet”). Only the Seventh Circuit has held otherwise. See Robinson v. Powell, 297 F.3d 540, 541 (7th Cir. 2002) (holding
that a district court dismissal can count as a strike before the
prisoner’s appeal from the dismissal has concluded).5
We note that the legislative history of the PLRA also supports our reading of the statute. While it is clear that Congress
enacted § 1915(g) to curb frivolous prisoner complaints and
appeals, see Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir.
2002) (“The PLRA filing fee provisions were enacted to deter
the large number of frivolous inmate lawsuits that were ‘clogging’ the federal courts and ‘draining’ limited judicial
resources”), the PLRA’s reforms were “designed to filter out
the bad claims and facilitate consideration of the good.”
Jones, 549 U.S. at 204. “Congress intended section 1915(g)
only to penalize litigation that is truly frivolous, not to freeze
out meritorious claims or ossify district court errors.”
Adepegba, 103 F.3d at 388; see also Jennings, 175 F.3d at
780. Thus, our reading of the statute “not only respects Congress’ intent to curb meritless lawsuits, but ensures that meritorious lawsuits are not swept away in the process.” See Lopez
v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (quoting 141
Cong. Rec. S146110-01, S14267 (daily ed. Sept. 29, 1995))
(“As chief sponsor of the PLRA, Senate Judiciary Committee
Chairman Orrin Hatch made the following statement: ‘I do
not want to prevent inmates from raising legitimate claims.
This legislation will not prevent those claims from being
raised.’ ”).
[3] We must heed the Supreme Court’s warning not to “depart from the usual practice under the Federal Rules on the
5

In Robinson, the Seventh Circuit applied § 1915(g) “literally” and reasoned that once a case is dismissed, it must immediately be counted as a
strike. 297 F.3d at 541. Like our sister circuits, we are not persuaded by
the Seventh Circuit’s approach, which could lead to the “unusual result”
that prisoners’ third strikes are not reviewable. Thompson, 492 F.3d at
432.

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basis of perceived policy concerns.” See Jones, 549 U.S. at
212 (holding that, despite legitimate policy reasons to the contrary, because the PLRA itself does not require prisoners to
plead exhaustion, the normal pleading rules apply). Accordingly, we hold 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. This means
that a dismissal ripens into a “strike” for § 1915(g) purposes
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 for writ of certiorari
expired, if he did not.” Hafed v. Fed. Bureau of Prisons, 635
F.3d 1172, 1176 (10th Cir. 2011);6 cf. Clay v. U.S., 537 U.S.
522, 525 (2003) (holding that, for purposes of 28 U.S.C.
§ 2255’s one-year limitations period, “a judgment of conviction becomes final when the time expires for filing a petition
for certiorari contesting the appellate court’s affirmation of
the conviction”).
Applying this rule to the three dismissals at issue here —
King County, Bush and Goddard—we conclude that none
count as a “strike” against Silva in this appeal. In King
County, the district court dismissed Silva’s case for failure to
state a claim upon which relief may be granted and stated that
the dismissal shall count as a “strike” under § 1915(g). The
district court’s order of dismissal, however, was dated January
29, 2009—over nine months after Silva filed his notice of
appeal in this case. Thus, this dismissal did not take place on
a “prior occasion” and cannot count against him here. See
Campbell, 471 F.3d at 952-53 (“Section 1915(g) does not
apply unless the inmate litigant has three strikes at the time
he files his lawsuit or appeal”); c.f. Andrews v. Cervantes, 493
F.3d 1047, 1052 (9th Cir. 2007) (holding that prisoners qualify for the “imminent danger” exception in § 1915(g) “based
6

If a prisoner does not appeal a dismissal, the dismissal counts as a
“strike” from the date when his time to file a direct appeal expired. See
Hafed, 635 F.3d at 1175.

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on the alleged conditions at the time the complaint was
filed”).
In Bush, the district court dismissed Silva’s complaint without prejudice for failure to state a claim upon which relief
may be granted and directed the clerk to count the dismissal
as a “strike” under § 1915(g). Silva appealed the dismissal to
this court and the district court certified that the appeal was
not taken in good faith. See Fed. R. App. P. 24(a)(3)(A). We
affirmed the district court’s judgment on November 19, 2007,
and denied Silva’s petition for rehearing on June 10, 2008.
The record does not reflect whether Silva petitioned the
Supreme Court for writ of certiorari. The district court’s dismissal in Bush therefore ripened into a “strike” once the time
for filing a certiorari petition expired—ninety days after we
denied his petition for rehearing. See Supreme Court Rule
13.3. That was well after Silva took his appeal in this case.
Thus, the dismissal does not count against Silva here.
For the same reason, the district court’s dismissal in Goddard also does not count against Silva in this appeal. In that
case, the district court dismissed Silva’s complaint without
prejudice for failure to state a claim and instructed the clerk
to dismiss the case with prejudice and count the dismissal as
a “strike” under § 1915(g) if Silva did not file an amended
complaint. Silva then appealed. We affirmed the district
court’s order on November 6, 2008, eight months after Silva
filed his notice of appeal in this case. Accordingly, this dismissal cannot count as a “strike” against him here.
[4] Because three of the five dismissals on which the
Defendants rely were not final at the time Silva took this
appeal, they cannot count against Silva in this case. We therefore reject the Defendants’ request that we revoke Silva’s IFP
status, and we allow him to continue in this appeal IFP.7
7

These dismissals, however, may count against Silva in future lawsuits
or appeals.

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B.

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Right of access to the courts and retaliation claims

We turn next to Silva’s argument that the district court
erred by sua sponte dismissing his right to access the courts
and retaliation claims for failure to state a claim upon which
relief may be granted. We review de novo a district court’s
dismissal of a case pursuant to § 1915A for failure to state a
claim upon which relief may be granted. See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007). In reviewing a district court’s decision to dismiss for failure to state a claim, we
take as true all factual allegations in the complaint and draw
all reasonable inferences in the plaintiff’s favor. See Resnick
v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We construe pro
se complaints liberally and may only dismiss a pro se complaint for failure to state a claim if “it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Weilburg, 488 F.3d
at 1205 (quoting Franklin v. Murphy, 745 F.2d 1221, 1228
(9th Cir. 1984)); see also Ramirez v. Galaza, 334 F.3d 850,
854 (9th Cir. 2003) (noting that pro se pleadings must be construed liberally).
i.

Silva’s right of access to the courts claim

Silva first argues that the district court erred when it dismissed his right of access to the courts claim. Citing Lewis,
518 U.S. at 354 and Cornett, 51 F.3d at 898, the district court
concluded that the right of access to the courts ends once a
prisoner has brought his petition or complaint to the court and
does not include the “right to discover such claims or even to
litigate them effectively once filed with a court.” Accordingly,
the district court concluded that because Silva’s allegations
related to his ability to effectively litigate his cases beyond the
pleading stage, Silva failed to state a claim. We disagree.
[5] Prisoners have a constitutional right of access to the
courts. See Bounds v. Smith, 430 U.S. 817, 821 (1977). Under
the First Amendment, a prisoner has both a right to meaning-

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ful access to the courts and a broader right to petition the government for a redress of his grievances. See Bradley v. Hall,
64 F.3d 1276, 1279 (9th Cir. 1995) (overruled on other
grounds by Shaw v. Murphy, 523 U.S. 223, 230 n.2 (2001)).
“In some instances, prison authorities must even take affirmative steps to help prisoners exercise their rights.” Id.
[6] We 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. For example, in Sands v.
Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989), we explained that
“a court must first determine whether the right of access
claimant alleges . . . a denial of adequate law libraries or adequate assistance from persons trained in the law. Second, if
the claims do not involve such an allegation, the court must
consider whether the plaintiff has alleged an ‘actual injury’ to
court access.”8 Two of our sister circuits have recognized this
distinction as well. See Snyder v. Nolen, 380 F.3d 279, 290
(7th Cir. 2004); John L. v. Adams, 969 F.2d 228, 235 (6th Cir.
1992).
[7] With respect to the right to assistance, the Supreme
Court has held that “the fundamental constitutional right of
access to the courts requires prison authorities to assist
inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.” Bounds,
430 U.S. at 828; see also Lewis, 518 U.S. at 355; Wolff v.
McDonnell, 418 U.S. 539, 579-80 (1974); Johnson v. Avery,
393 U.S. 483, 490 (1969). The right to litigation assistance,
however, is limited to the tools prisoners need “in order to
attack their sentences, [either] directly or collaterally, and in
8

Sands was overruled by Lewis to the extent that it did not require actual
injury when a prisoner alleges inadequate assistance. Lewis, 518 U.S. at
351. Our distinction between assistance and interference claims, however,
remains good law.

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order to challenge the conditions of their confinement.”
Lewis, 518 U.S. at 355. Critical to the issue here, the right to
legal assistance is also limited to the pleading stage.9 Id. at
384.
In the interference line of cases, the Supreme Court has
“held that the First Amendment right to petition the government includes the right to file other civil actions in court that
have a reasonable basis in law or fact.” Snyder, 380 F.3d at
290 (citing McDonald v. Smith, 472 U.S. 479, 484 (1985);
Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 741 (1983);
California Motor Transp. Co. v. Trucking Unlimited, 404
U.S. 508, 510 (1972); see also Monsky v. Moraghan, 127 F.3d
243, 246 (2d Cir. 1997)). This right does not require prison
officials to provide affirmative assistance in the preparation of
legal papers, but rather forbids states from “erect[ing] barriers
that impede the right of access of incarcerated persons.” John
L., 969 F.2d at 235; Snyder, 380 F.3d at 291 (“The right of
access to the courts is the right of an individual, whether free
or incarcerated, to obtain access to the courts without undue
interference”). Thus, aside from their affirmative right to the
tools necessary to challenge their sentences or conditions of
confinement, prisoners also have a right, protected by the
First Amendment right to petition and the Fourteenth Amendment right to substantive due process, “to pursue legal redress
for claims that have a reasonable basis in law or fact.” Snyder,
380 F.3d at 291 (citing Johnson v. Atkins, 999 F.2d 99, 100
(5th Cir. 1993)).
9

We have explained that the “pleading stage,” as that term is used here,
does not encompass merely the complaint and the answer, but also
includes the prisoner-plaintiff’s “reply to an answer,” his “reply to a counterclaim” and his “answer to a cross-claim.” Cornett v. Donovan, 51 F.3d
894, 899 (9th Cir. 1995). Thus, the “pleading stage” encompasses the
preparation of a complaint and the preparation of any filings necessary “to
rebut the State’s arguments when a court determines that a rebuttal would
be of assistance.” Id.

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We have recognized that prisoners’ First and Fourteenth
Amendment rights to access the courts without undue interference extend beyond the pleading stages. See, e.g., Vigliotto v.
Terry, 873 F.2d 1201, 1202 (9th Cir. 1989) (“a defendant is
deprived of due process if prison authorities confiscate the
transcript of his state court conviction before appeal”); DeWitt
v. Pail, 366 F.2d 682, 685 (9th Cir. 1966) (“When the efforts
of a state prisoner to obtain an available appellate review of
his conviction are frustrated by the action of penal officials,
there has been a violation of the Due Process Clause of the
Fourteenth Amendment”). Indeed, before the Supreme
Court’s decision in Bounds, when the right of access to the
courts was understood only to guarantee prisoners a right to
be free from interference, we held that the right to access the
courts included “the opportunity to prepare, serve and file
whatever pleadings or other documents are necessary or
appropriate in order to commence or prosecute court proceedings affecting one’s personal liberty, or to assert and sustain
a defense therein, and to send and receive communications to
and from judges, courts and lawyers concerning such matters.” Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1961)
(emphasis added).
[8] In Lewis, the Supreme Court limited the right of access
to the courts to the pleading stage in cases involving prisoners’ affirmative right to assistance. See 518 U.S. at 354. Lewis
does not speak to a prisoner’s right to litigate in the federal
courts without unreasonable interference. Because the
Supreme Court has not limited a prisoner’s right of access to
the courts to the pleading stage in this circumstance, we hold
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.
We disagree with the Defendants that Cornett v. Donovan,
51 F.3d 894 (9th Cir. 1995), controls this case. In Cornett, we
held that “the constitutional right of access requires a state to

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provide a law library or legal assistance only during the pleading stage of a habeas or civil rights action.” 51 F.3d at 898.
The Defendants rely on Cornett for the proposition that all
access to courts claims expire after the pleading stage. This
reliance is misplaced primarily because Cornett, by its own
language, only refers to claims involving library access and
legal assistance, rather than active interference. Along the
same lines, Cornett relied on Supreme Court cases involving
assistance claims, not interference claims. See generally id. at
898-99. In Cornett we did not acknowledge—let alone
discuss—access claims grounded in allegations of active
interference. Accordingly, Cornett does not limit our ability
to determine whether the right to pursue litigation efforts
without active interference extends past the pleading stage,
and we see no reason why such a right would not exist
throughout a prisoner’s litigation efforts.
[9] Having so held, we turn to the facts alleged by Silva,
bearing in mind that we are to construe his allegations generously. Weilburg, 488 F.3d at 1205. In his amended complaint,
Silva alleged that the Defendants repeatedly transferred Silva
between different prison facilities in order to hinder his ability
to litigate his pending civil lawsuits. Silva also alleged that
the Defendants seized and withheld all of his legal files.
Finally, Silva alleged an actual injury: that as a result of the
Defendants’ actions, several of his pending suits were dismissed. We therefore reverse the district court’s order dismissing Silva’s access to courts claim and remand for further
proceedings consistent with this opinion.
ii.

Silva’s retaliation claim

Silva next argues that the district court erred by dismissing
his retaliation claim. The district court concluded that Silva
failed to identify specific retaliatory acts carried out by specific Defendants and failed to “describe precisely for what
conduct he experienced retaliatory acts.” Silva contends that
to reach that determination, the district court either ignored

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the allegations supporting his claim or imposed an excessively
detailed pleading standard.
[10] Silva alleges that each of the Defendants violated his
First Amendment right to petition the government for redress
of grievances without retaliation. As discussed above, a prisoner “retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.” Pell v.
Procunier, 417 U.S. 817, 822 (1974). Among those rights is
the right to file prison grievances and the right to pursue civil
rights litigation in the federal courts. Rhodes v. Robinson, 408
F.3d 559, 567 (9th Cir. 2005). Because actions taken to retaliate against prisoners who exercise those rights “necessarily
undermine those protections, such actions violate the Constitution quite apart from any underlying misconduct they are
designed to shield.” Id. To state a claim for First Amendment
retaliation, a prisoner must allege the following five elements:
(1) a state actor took an adverse action against him (2)
because of (3) the prisoner’s protected conduct, and that the
action taken against him (4) chilled the prisoner’s exercise of
his First Amendment Rights and (5) did not reasonably
advance a legitimate correctional goal. See id. at 567-68.
Here, Silva alleges that Di Vittorio, McKenna, Gregoire,
Clarke, Thatcher, Miller, Miller-Stout, Hewson, Rainville,
Arnold, Lerch, Westfall, and Archer transferred Silva despite
their knowledge that Silva possessed a number of boxes of
files that included evidence he planned to use in proving government misconduct in pending cases and potential proceedings. He alleges that when he was transferred, the WDOC and
Corrections Corporation defendants seized all of his legal
files, which included sixteen boxes of documents, record evidence, legal books, and research notes. He also alleges that Di
Vittorio, McKenna, Gregoire, Clarke, Thatcher, Miller,
Lucas, Miller-Stout, Archer, Ferguson, John Gay, Samuel
Rogers, Hatten, Napier, Verdugo, and Corrections Corpora-

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tion repeatedly refused to address Silva’s complaints and his
requests for the return and inventory of his stolen files.
Silva further alleges that each of the Defendants engaged in
the adverse actions described “in order to punish and retaliate
against Silva for his efforts to expose their misconduct and
law violations.” Specifically, he alleges that the Defendants
engaged in these actions to intimidate or threaten him, to prevent him from testifying against them in his pending cases or
in any future proceedings, to conceal or destroy the records
necessary to prove his claims, and to hinder his ability to
communicate with law enforcement. Silva also alleges that
the Defendants’ acts did not reasonably advance a legitimate
correctional goal.
[11] Silva’s allegations, if taken as true, satisfy the pleading requirements of a retaliation claim. Silva alleges that
prison officials “(1) arbitrarily confiscated, withheld, and
eventually destroyed his property,” Rhodes, 408 F.3d at 568,
and transferred him to another correctional institution, “(2)
because he (3) exercised his First Amendment rights to file
prison grievances and otherwise seek access to the legal process, and that (4) beyond imposing those tangible harms, the
[defendants’] actions chilled his First Amendment rights and
(5) were not undertaken to advance legitimate penological
purposes.” Id. This is “the very archetype of a cognizable
First Amendment retaliation claim.” Id.; see also Rizzo v.
Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985) (recognizing
a First Amendment right of prisoners to be free from prison
transfers or reassignments made in retaliation for legal activities). Further, while Silva pled some of his retaliation-related
allegations in other sections of his amended complaint, when
read together, Silva’s allegations are specific enough to state
a claim. Thus, we find that Silva has pled sufficient facts to
state a claim for retaliation and we reverse the district court’s
order as to that count and remand.

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Silva’s RICO and state law conversion claims

Having concluded that the district court erred in dismissing
Silva’s right of access to the courts and retaliation claims, the
only remaining issue is whether the district court erred in dismissing Silva’s RICO and state law conversion claims without leave to amend. As to his RICO claim, Silva argues that,
had he been given leave to file a second amended complaint,
he could have corrected his claim to conform with the district
court’s order. We review a district court’s denial of leave to
amend for an abuse of discretion. See Knappenberger v. City
of Phoenix, 566 F.3d 936, 942 (9th Cir 2009); Lopez v. Smith,
203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
[12] Federal Rule of Civil Procedure 15(a)(2) provides that
the district court “should freely give leave” to amend “when
justice so requires.” Fed. R. Civ. P. 15(a)(2). The PLRA does
not bar district courts from granting leave to amend. See
Lopez, 203 F.3d at 1130. Indeed, “a district court should grant
leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Id. (quoting Doe
v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). “Dismissal of a pro se complaint without leave to amend is proper
only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (internal
quotation marks omitted).
[13] Here, we agree with the district court that Silva failed
to state a claim under RICO and that any attempt to re-plead
this claim would be futile. Silva’s RICO allegations center on
the WDOC’s alleged transportation of him against his will
from his prison in Washington to the FCC in Arizona. The
predicate acts Silva alleges include “kidnapping,” “witness
tampering,” mail fraud, and wire fraud—all of which relate to
the allegedly illegal transport. Even if the Defendants’ transfer of Silva from Washington to the FCC violated his consti-

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tutional rights to access the courts and to be free from
retaliation, these acts do not qualify as predicate acts under
§ 1961(1), primarily because the Defendants broke no criminal laws when transporting Silva to the FCC. Not only does
Silva’s RICO claim fail to state a claim upon which relief
may be granted, it is frivolous. The district court properly
concluded that the deficiencies in Silva’s complaint could not
be cured by an amendment. We therefore affirm the district
court’s decision to dismiss Silva’s RICO claim with prejudice
and without leave to amend.
[14] Silva’s state law conversion claim was predicated on
the dismissal of all of Silva’s federal claims. Because we have
restored two of Silva’s federal claims, and because the district
court dismissed the state claim after declining to exercise supplemental jurisdiction, we remand for consideration by the
district court whether it wishes to exercise its discretion to
hear Silva’s state claim with his reinstated federal claims. See
Comm. Concerning Cmty. Improvement v. City of Modesto,
583 F.3d 690, 715 (9th Cir. 2009) (vacating dismissal of state
law claims after reinstating federal claims so that the district
court could decide whether to exercise its supplemental jurisdiction over the state law claims).
III.

CONCLUSION

For the foregoing reasons, we decline to revoke Silva’s IFP
status and we reverse the district court’s order dismissing
Silva’s right to access the courts, retaliation and state law conversion claims, and we remand for proceedings consistent
with this opinion. We affirm the district court’s judgment as
to Silva’s RICO claim. Each party shall bear its own costs.
REVERSED IN PART, AFFIRMED IN PART, AND
REMANDED.

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O’SCANNLAIN, Circuit Judge, dissenting:
Matthew Silva, a Washington state prisoner, is no stranger
to the federal courts. During his incarceration, he has filed at
least fourteen actions in federal district court. He has succeeded in none of them, and at least four of his suits have
been dismissed for failure to state a claim upon which relief
may be granted. Undeterred, Silva filed this latest suit under
42 U.S.C. § 1983 alleging violations of his First and Fourteenth Amendment rights, which too was dismissed for failure
to state a claim. Silva now seeks appellate review of that
determination.
Throughout his many interactions with the federal courts,
Silva has proceeded in forma pauperis (“IFP”). That is, he has
never had to prepay a single administrative fee associated
with his many federal filings. On appeal, Silva once again
seeks to proceed IFP, a privilege which he is now clearly
denied under the Prison Litigation Reform Act (“PLRA”).
Nevertheless, the court today holds that Silva is free to proceed IFP, and that it should adjudicate the merits of his
appeal. Because such conclusion flies in the face of the plain
language of the PLRA, I would dismiss this appeal unless
Silva prepays the appropriate filing fees. Thus, I respectfully
dissent from the court’s ruling to the contrary.
I
The PLRA creates a “three-strikes rule” for prisoners seeking to proceed IFP in bringing or appealing a civil suit in federal court. Specifically, the statute provides:
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

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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). There is no claim that
Silva is in imminent physical danger. If he had three or more
dismissals for failure to state a claim at the time he filed this
appeal, he is simply barred from proceeding IFP.
II
The majority disregards this clear statutory mandate.
Instead, it observes that “[s]ection 1915(g) does not expressly
state whether a prior dismissal of ‘an action or appeal’ must
be final before it can be considered a ‘strike.’ ” Maj. Op. at
18340. Although the statute does not state that a dismissal
must become final in order to count as a strike, the majority
opines that such a limitation is “fairly implied.” Id. The
majority’s rationale for implying a finality limitation into section 1915(g) is unpersuasive.
A
The majority is correct that section 1915(g) does not
explicitly state when or whether a dismissal must become
“final” in order to count as a strike. But that is precisely the
point. The fact that the statute does not state that a dismissal
must become “final” to count against the prisoner counsels
that we look no further than the fact of dismissal when tallying strikes. The statute is patent on this point. See 28 U.S.C.
§ 1915(g) (stating that IFP status shall not be granted if, on
three or more prior occasions, the prisoner has filed a claim
that “was dismissed” (emphasis added)); accord Robinson v.
Powell, 297 F.3d 540, 541 (7th Cir. 2002) (Posner, J.). A
strike is not contingent in any way on the case’s subsequent
appellate process, which is nowhere mentioned in section
1915.

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Indeed, section 1915 contemplates only one contingency
that is relevant to the inquiry here — whether “the prisoner
is under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). Moreover, Congress has included express
language in section 1915(g) indicating that this exception is
the only event upon which a strike is contingent. See id. (“[i]n
no event” is this court to grant IFP status to a prisoner once
he has accumulated three strikes).
The majority’s contrary approach transforms Congress’s
silence into an unspoken requirement of “finality” — indeed
it mandates an assumption that all trial court dismissals under
section 1915(g) were entered in error. Such an interpretation
is both contrary to the ordinary and obvious meaning of Congress’s language and without logical support. In short, the
atextual reading advanced by the majority “has the anomalous
result of allowing a prisoner to file, without payment, a frivolous appeal.” Robinson, 297 F.3d at 541.
B
The majority further opines that to count a dismissal as a
strike as soon as it occurs “would be a departure from the
usual practice under the Federal Rules,” and would “effectively eliminate our appellate function” in those cases where
a third strike is being appealed. Maj. Op. at 18340 (citing Fed.
R. App. P. 3). The majority implies that our “usual practice”
to allow appeals of right is somehow thwarted by not automatically allowing a prisoner to appeal his third strike free of
charge. But “the usual practice” of bringing an appeal under
the Federal Rules includes paying the requisite filing fees. See
Fed. R. App. P. 3(e). Indeed, proceeding IFP is itself an
exception from the “usual practice under the Federal Rules.”
See Fed. R. App. P. 24(a) (governing requests for “Leave to
Proceed in Forma Pauperis” (emphasis added)).
The PLRA regulates the applicability of that exception in
the context of prisoners, not the “usual practice” of appellate

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proceedings themselves. Indeed, the “unusual” result reached
by the plain text of the PLRA is simply that once a prisoner
has had three suits dismissed, he may no longer avoid having
to prepay the normal filing fees associated with federal
appeals. Adherence to this procedure no more “effectively
eliminate[s] our appellate function,” Maj. Op. at 18340, than
does the requirement of filing fees in general. A prisoner may
still appeal just as any other party may: by prepaying the
appropriate fees.1
III
The majority fails to appreciate the strain that its rule places
upon the federal courts. Silva’s case is a prime example. In
his time in prison, he has filed no less than fourteen causes of
action in various federal courts. Frivolous prisoner claims
create inordinate pressure on the federal docket, and the
course of Silva’s repeated litigation is just one of many such
examples. In fact, some 20,000 civil cases are brought each
year by prisoners either alleging civil rights violations or challenging prison conditions. See Admin. Office of the U.S.
Courts, Judicial Business of the United States Courts 145
(2010). By one estimate, nearly twenty percent of these cases
are dismissed as frivolous, not to mention the almost forty
percent that are dismissed because of a prisoner’s failure to
comply with court rules. See Bureau of Justice Statistics, U.S.
Dep’t of Justice, Challenging the Conditions of Prisons and
Jails 20 (1994); see also Taylor v. Delatoore, 281 F.3d 844,
849 (9th Cir. 2002) (“The PLRA filing fee provisions were
enacted to deter the large number of frivolous inmate lawsuits
that were ‘clogging’ the federal courts and ‘draining’ limited
judicial resources.”).
1

Even if section 1915(g) were read to mandate IFP status in the limited
instance where the dismissal being appealed constituted the third strike
itself, such a case is not presented here, as Silva seeks to appeal a claim
unrelated to those constituting his strikes.

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The rule crafted by the majority will only make the situation worse. The finality rule that the majority imports into
section 1915(g) would toll consideration of the dismissal of a
frivolous suit until the case has mandated and the time for the
prisoner to file a petition for a writ of certiorari has expired.
See Maj. Op. at 18342-43. And should the prisoner actually
file a petition for a writ of certiorari, the majority would toll
consideration of the dismissal until the Supreme Court has
denied the petition. See id. This is more than enough time for
a prisoner to file quite a few lawsuits, all the while not having
to prepay his fees as most litigants must.
IV
It is undisputed that Silva had at least three prior civil
actions that had been dismissed for failure to state a claim. I
believe, therefore, that IFP status is inappropriate and that this
appeal should be dismissed unless Silva pays the proper
appellate fees.
Accordingly, I respectfully dissent.