Jason Harris v. J. Mangum, et al

Filing

FILED OPINION (RONALD M. GOULD, RICHARD R. CLIFTON and PAUL J. WATFORD) AFFIRMED. Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [10511957]

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 1 of 21

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JASON LEE HARRIS,
Plaintiff-Appellant,
v.
J. KENNETH MANGUM; J. SCOTT
DUTCHER,
Defendants-Appellees.

No. 15-15054
D.C. No.
2:13-cv-02280SRB-DKD

OPINION

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted November 18, 2016
San Francisco, California
Filed July 18, 2017
Before: Ronald M. Gould, Richard R. Clifton,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Clifton

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 2 of 21

2

HARRIS V. MANGUM
SUMMARY*

Prisoner Civil Rights
Following this court’s prior limited remand in this
prisoner civil rights action, the panel affirmed the district
court’s order declining to evaluate plaintiff’s competence and
declining to award a guardian ad litem.
In plaintiff’s prior appeal, this court affirmed the
dismissal of plaintiff’s lawsuit as frivolous, but ordered a
limited remand to the district court to consider whether
Federal Rule of Civil Procedure 17(c)(2) required the court to
evaluate plaintiff’s competence and consider the appointment
of a guardian ad litem or issuance of another appropriate
order. Plaintiff asserted that a guardian could have
voluntarily dismissed this lawsuit so that the dismissal by the
court would not have charged him with a “strike” under
28 U.S.C. § 1915(g).
The panel agreed with the district court that plaintiff had
no interest in this case that could have been protected by
appointment of a guardian ad litem or issuance of another
appropriate order pursuant to Rule 17(c)(2). The panel held
that plaintiff could not be charged with a strike based on the
dismissal of this lawsuit because he originally filed the suit in
state court. The panel held that although the suit was later
removed to federal court by another party, § 1915(g) imposes
a strike only when a prisoner has brought a meritless action
or appeal in a federal court, and plaintiff did not do so.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 3 of 21

HARRIS V. MANGUM

3

The panel also agreed with the district court that because
plaintiff had incurred at least three strikes from prior cases,
he was already subject to the limitations imposed under
§ 1915(g) and could not be adversely impacted by whatever
happened in this case. The panel noted that although some of
plaintiff’s prior cases were dismissed for failure to state a
claim with leave to amend, and judgment was entered against
plaintiff after he failed to file amended complaints, those
dismissals still counted as strikes under § 1915(g). The panel
held that when (1) a district court dismisses a complaint on
the ground that it fails to state a claim, (2) the court grants
leave to amend, and (3) the plaintiff then fails to file an
amended complaint, the dismissal counts as a strike under
§ 1915(g).

COUNSEL
Seth W. Lloyd (argued), Morrison & Foerster LLP,
Washington, D.C.; Yuka Teraguchi and James E. Hough,
Morrison & Foerster LLP, Tokyo, Japan; for PlaintiffAppellant.
Joseph I. Vigil (argued) and Joseph J. Branco, Deputy County
Attorneys; William G. Montgomery, Maricopa County
Attorney; Civil Services Division, Maricopa County
Attorney’s Office, Phoenix, Arizona; for DefendantsAppellees.

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 4 of 21

4

HARRIS V. MANGUM
OPINION

CLIFTON, Circuit Judge:
Plaintiff-Appellant Jason Harris, an Arizona state
prisoner, filed pro se a lawsuit in state court that was
subsequently removed by Defendants-Appellees J. Kenneth
Mangum and J. Scott Dutcher to federal court. Harris filed a
motion asking the court to appoint a representative or
guardian ad litem to protect his interests, contending that he
had previously been found incompetent to stand trial in a
criminal case. Without separately considering that motion,
the district court dismissed his lawsuit as frivolous and denied
pending motions, including the guardian motion, as moot.
This court agreed that the lawsuit was frivolous but
ordered a limited remand to the district court for the purpose
of considering whether Federal Rule of Civil Procedure
17(c)(2) required the court to evaluate Harris’s competence
and consider the appointment of a guardian ad litem or
issuance of another appropriate order. On remand, the district
court concluded that it was not required to evaluate Harris’s
competence because he had no interest in this case that could
have been protected by appointment of a guardian ad litem or
issuance of another order under Rule 17(c)(2). We agree.
Harris argues that a guardian could have voluntarily
dismissed this lawsuit so that its dismissal by the court as
frivolous would not have charged him with a “strike” under
28 U.S.C. § 1915(g) that could affect his ability to file a
future lawsuit in forma pauperis. Like the district court,
however, we conclude that Harris could not be charged with
a strike based on the dismissal of this lawsuit because he filed
it in state court. Though it was later removed to federal court

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 5 of 21

HARRIS V. MANGUM

5

by another party, § 1915(g) imposes a strike only when a
prisoner has brought a meritless action or appeal in a federal
court, and Harris did not do so. Moreover, we also agree with
the district court that, because Harris had incurred at least
three strikes from prior cases, he was already subject to the
limitations imposed under § 1915(g) and could not be
adversely impacted by whatever happened in this case.
Though some of those prior cases were dismissed for failure
to state a claim with leave to amend, and judgment was
entered against Harris after he failed to file amended
complaints, we conclude that those dismissals still count as
strikes under § 1915(g).
Because Harris had no interest in this case that could have
been protected by appointment of a guardian ad litem or
issuance of another appropriate order pursuant to Rule
17(c)(2), the district court was not required to evaluate his
competence prior to dismissing the action. We affirm.
I. Background
Harris, an Arizona state prisoner, filed pro se a complaint
in Maricopa County Superior Court against an employee of
the Maricopa County Sheriff’s Office, Sandra Ybarra,
alleging violations of Harris’s rights under the U.S.
Constitution and various federal statutes. Attorneys Mangum
and Dutcher, who were employees of the Maricopa County
Attorney’s Office, represented Ybarra in that action, and they
removed the case to the United States District Court for the
District of Arizona.
Harris then filed another lawsuit in Maricopa County
Superior Court, again pro se, this time against Ybarra’s
attorneys, Mangum and Dutcher. This second lawsuit is the

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 6 of 21

6

HARRIS V. MANGUM

action currently before us in this appeal. In this lawsuit
Harris alleged that Mangum and Dutcher’s removal of the
first lawsuit was an action that itself violated Harris’s rights
under the U.S. Constitution and two federal statutes.
Defendants removed this second case to the District of
Arizona pursuant to 28 U.S.C. § 1441.
The district court is required, under provisions enacted as
part of the Prison Litigation Reform Act of 1995, to screen a
complaint filed by a prisoner seeking relief against a
governmental entity or an officer or an employee of a
governmental entity. 28 U.S.C. § 1915A(a). The court is
required to dismiss such a complaint or any portion thereof in
which a prisoner has raised claims that are legally frivolous
or malicious, that fail to state a claim upon which relief may
be granted, or that seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
Before that review was accomplished in this case, Harris
filed a number of motions. One was a motion for
appointment of a representative or guardian ad litem. That
motion cited Harris’s understanding that he had previously
been “found incompetent for trial” in a criminal case pending
against him in state court.
The district court dismissed the case as frivolous pursuant
to the screening provisions of 28 U.S.C. § 1915A, observing
that removal of the first case by Ybarra’s attorneys was not a
basis upon which the attorneys could be held liable to Harris
under federal law. The order entered by the court also denied
all pending motions, including the motion for appointment of
a guardian ad litem, and directed the court clerk to enter
judgment.

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 7 of 21

HARRIS V. MANGUM

7

Harris appealed the dismissal of his case, and his motion
to proceed on appeal in forma pauperis came before a Ninth
Circuit motions panel. The motions panel concluded that
Harris’s claims were legally frivolous. Order, Harris v.
Mangum, No. 14-16290 at 2 n.1 (9th Cir. Oct. 30, 2014).
Even so, it vacated the district court judgment and remanded
to the district court for the limited purpose of considering
whether Federal Rule of Civil Procedure 17(c) required
appointment of a guardian ad litem or another order to protect
Harris’s interests. Id. at 3.
On remand, the district court concluded that Harris had no
interest in the case that could be protected by appointment of
a guardian ad litem or issuance of another appropriate order.
The district court determined in addition that Harris did not
provide documentation regarding his mental health sufficient
to merit further inquiry into his competence. Accordingly,
the district court declined to appoint a guardian ad litem. The
district court directed the court clerk to forward a copy of its
order to this court, which we construe as a statement of the
district court’s intent to reinstate its judgment and its intent
that the order be appealable. See Resh v. China Agritech,
Inc., 857 F.3d 994, 1000 (9th Cir. 2017) (“Because the
district court’s order was a full adjudication of the issues that
clearly evidenced its intention that the order be final,
appellate jurisdiction is proper.”).

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 8 of 21

8

HARRIS V. MANGUM

Harris then filed this appeal, challenging the district
court’s decision not to appoint a guardian ad litem.1 We have
jurisdiction pursuant to 28 U.S.C. § 1291.
II. Discussion
We review a district court’s decision not to appoint a
guardian ad litem for abuse of discretion. Davis v. Walker,
745 F.3d 1303, 1310 (9th Cir. 2014). “[Q]uestions of
statutory interpretation, such as the applicability of the strike
provision of 28 U.S.C. § 1915(g), are reviewed de novo.”
Belanus v. Clark, 796 F.3d 1021, 1024 (9th Cir. 2015).
A. The Need for a Rule 17(c) Assessment When a Party Has
No Protectable Interest
Federal Rule of Civil Procedure 17(c)(2) provides that a
“court must appoint a guardian ad litem—or issue another
appropriate order—to protect a minor or incompetent person
who is unrepresented in an action.” Ordinarily, “when a
substantial question exists regarding the mental competence
of a party proceeding pro se, the proper procedure is for the
district court to conduct a hearing to determine competence,
so a guardian ad litem can be appointed, if necessary.” Allen
v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). The
district court did not conduct a competency hearing for
Harris. Thus, the first question we address is whether a
1

Harris states that this appeal also challenges the district court’s
January 29, 2015 denial of his motion for reconsideration of the order
declining to appoint a guardian at litem. Because Harris did not amend his
notice of appeal to include the denial of his motion for reconsideration,
that order is not before us. Whitaker v. Garcetti, 486 F.3d 572, 585 (9th
Cir. 2007); Fed. R. App. P. 3(c)(1)(B), 4(a)(4)(B)(ii). Review of that
order would not affect the outcome of this appeal, in any event.

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 9 of 21

HARRIS V. MANGUM

9

district court may forego an otherwise-required Rule 17(c)(2)
assessment when, as here, it concludes that the litigant’s
competence is irrelevant because the litigant has no interest
that could be protected by one of the safeguards provided by
Rule 17(c)(2), namely “appoint[ing] a guardian ad litem” or
“issu[ing] another appropriate order.” We conclude that the
district court may dispense with that assessment of
competence in circumstances such as those involved in this
case.
“The purpose of Rule 17(c) is to protect an incompetent
person’s interests in prosecuting or defending a lawsuit.”
Davis, 745 F.3d at 1310. Accordingly, we have held that a
district court has broad discretion to fashion an appropriate
safeguard that will protect an incompetent person’s interests.
See id. at 1311 (listing safeguards among which a district
court may choose depending on the circumstances); Krain v.
Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (same);
United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th
Cir. 1986) (“Fed. R. Civ. P. 17(c) requires a court to take
whatever measures it deems proper to protect an incompetent
person during litigation.”).
The requirement that the district court implement
safeguards sufficient to protect an incompetent person’s
interests presupposes the existence of interests. The parties
do not identify and we have not found any precedent that
discusses what a district court must do when a litigant has no
interest to protect. The absence of such cases is not
surprising. Ordinarily it would be difficult for a district court
to be certain at the outset of a case that a litigant had no
protectable interest. Even if it were clear that a complaint
filed by a pro se plaintiff failed to state a claim, there would
typically remain the possibility of some set of facts known to

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 10 of 21

10

HARRIS V. MANGUM

the party, though not to the court, that could be alleged to
support a cognizable claim.
In the rare case when it is clear that a litigant has no
protectable interest, however, proceeding with a competency
hearing would be a complete waste of time and effort.
Considering the appointment of a guardian ad litem in such
a circumstance would not advance “[t]he purpose of Rule
17(c) [in] protect[ing] an incompetent person’s interests.”2
Davis, 745 F.3d at 1310. Even if the litigant were found to be
incompetent, it would be impossible for the court to take
measures tailored to protect his interests because he would
have nothing to protect and would not derive any benefit from
the safeguards provided by Rule 17(c). Accordingly, we hold
that, in the unusual case when it is clear that a potentially
incompetent party has no interest that could be protected by
appointing a guardian ad litem or issuing another appropriate
order, a district court does not abuse its discretion when it
declines to assess the party’s competence.
B. Absence of a Protectable Interest in This Case
It is beyond question that Harris has no legitimate interest
in the merits of his case. He had no viable claim against
Mangum and Dutcher. Rather, Harris’s only identified
interest that could potentially warrant protection under Rule
17(c) is his interest in avoiding negative collateral
consequences from having filed a frivolous complaint.

2
In fact, appointing a guardian ad litem in such a case could hinder
the purpose of Rule 17(c) if the guardian thereby became unavailable to
represent a different litigant who did have protectable interests. Cf. Davis,
745 F.3d at 1311 (mentioning “a waiting list for guardian ad litem
services”).

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 11 of 21

HARRIS V. MANGUM

11

1. Strikes under 28 U.S.C. § 1915(g)
A negative consequence that may impact a prisoner who
files a frivolous complaint is a restriction on his ability to file
future cases without prepaying filing fees. Ordinarily, a
plaintiff must pay a fee before he may file a complaint in
federal court. 28 U.S.C. § 1914. Upon demonstrating
indigence, however, a plaintiff may proceed in forma
pauperis, i.e., without paying court fees. 28 U.S.C.
§ 1915(a)(1). A prisoner-plaintiff may also proceed in forma
pauperis, but if he is granted permission to do so, then he
must eventually repay the fee from his prison account as
funds become available. 28 U.S.C. § 1915(b). If he abuses
the privilege, a prisoner may lose his ability to proceed in
forma pauperis. Specifically, 28 U.S.C. § 1915(g) provides:
In no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or
proceeding under [the in forma pauperis
provision] 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.
The dismissals described in this provision are commonly
referred to as “strikes.” See, e.g., El-Shaddai v. Zamora,
833 F.3d 1036, 1042 (9th Cir. 2016).
In the order remanding the case to the district court, our
motions panel noted concern for this potential consequence,

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 12 of 21

12

HARRIS V. MANGUM

observing “that even though the claims in this action are
legally frivolous, Harris’s interests in not accruing ‘strikes’
under 28 U.S.C. § 1915(g) might warrant protection under
Rule 17(c). A guardian ad litem or other representative could
protect those interests by filing a motion for voluntary
dismissal.” Order, Harris v. Mangum, No. 14-16290 at 2 n.1
(9th Cir. Oct. 30, 2014). Taking their cues from that order,
both the district court and the parties have focused on Harris’s
interests relating to strikes.
It is undisputed that if (1) the disposition of Harris’s
lawsuit resulted in his receiving a strike and (2) that strike
could impact his ability to bring future lawsuits in forma
pauperis, Harris had a protectable interest in the litigation.
Cf. Belanus, 796 F.3d at 1028 (concluding that the imposition
of a first strike is a sufficiently concrete harm to give rise to
Article III standing). The parties disagree, however, as to
whether either or both of these circumstances exist in this
case.
With regard to whether Harris would incur a strike for the
dismissal of his frivolous complaint in this case, the district
court explained that “this case was removed from state court.
Section 1915(g) provides for the accrual of strikes for cases
filed in federal court, but does not provide for the accrual of
strikes in removed cases and this District does not assess
strikes against plaintiffs who commenced cases in state
court.” Accordingly, the district court reasoned that Harris
would not accrue a strike from its dismissal of this case. Our
court has not previously determined whether a district court’s
dismissal of a complaint removed from state court may
constitute a strike, though we have noted that possibility. See
Quillar v. Exarhos, 585 F. App’x 575, 576 (9th Cir. 2014)
(unpublished) (“[I]t is not clear whether the third dismissal on

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 13 of 21

HARRIS V. MANGUM

13

which the district court relied constitutes a strike. [The
plaintiff-appellant] filed this action in state court, alleging
federal and state law claims, and though defendants
successfully removed it, this may not constitute a ‘federal’
action for purposes of § 1915(g).”).
We agree with the district court that Harris could not
accrue a strike for the dismissal of this case because he did
not file it in federal court. The relevant statute, 28 U.S.C.
§ 1915(g), provides that a prisoner can accrue a strike from
the dismissal of “an action or appeal” that “the prisoner has
. . . brought . . . in a court of the United States.” As used in
Title 28, “[t]he term ‘court of the United States’ includes the
Supreme Court of the United States, courts of appeals, [and]
district courts.” 28 U.S.C. § 451. The term is not defined to
include state courts. This action was filed by Harris in a state
court.
Defendants acknowledge that the plain language of the
statute supports this conclusion. Still, they express concern
that, if a prisoner could avoid obtaining strikes by filing cases
in state court, § 1915(g) would be “meaningless” because, as
expressed in their answering brief, “a prisoner with two
strikes could avoid a strikeout by fouling-off pitches forever,
simply by bringing suit in state court.” Defendants argue that
a strike should therefore accrue from a district court’s
dismissal of a complaint in a removed case.
That policy argument must be directed to Congress, not
to us. It is “our job to apply faithfully the law Congress has
written.” Henson v. Santander Consumer USA Inc., 137
S. Ct. 1718, 1725 (2017); see also Coleman v. Tollefson, 135
S. Ct. 1759, 1763 (2015) (interpreting 28 U.S.C. § 1915(g)
according to its “plain language”). The plain language of the

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 14 of 21

14

HARRIS V. MANGUM

statute does not support charging a prisoner with a strike
based on a district court’s dismissal of a lawsuit filed by the
prisoner in state court, even if the action was later removed to
federal court by another party.
Besides, even if strikes did accrue from a district court’s
dismissal of frivolous cases removed from state court, as
Defendants urge, that proposed rule would not solve the
problem they identify. Specifically, the rule Defendants
propose would not prevent a litigant in Harris’s position from
returning to federal court in precisely the way Harris arrived
in federal court in this case. Section 1915(g) prevents a
prisoner with three strikes from filing a case in federal court
without prepaying the filing fee, but Harris did not file this
case in federal court, and he was not required to pay a federal
court filing fee. Defendants were the parties who brought this
case to federal court when they removed it from state court,
and it was their responsibility to pay the federal filing fee, as
they did in this case. The statute does not prevent an indigent
prisoner-plaintiff with three strikes from proceeding in a case
that someone else filed in federal court. It would take a more
substantial amendment of the statute to achieve what
Defendants seek.
When a defendant removes a case from state to federal
court, it cannot be said that a prisoner-plaintiff was the one
who brought the case in federal court. Accordingly, we hold
that a district court’s dismissal of an action removed from
state court by a party other than a prisoner cannot constitute
a strike under § 1915(g) against that prisoner.3 Harris brought

3

The dismissal of an appeal brought by a prisoner in a federal court
of appeals could count as a strike, even if the case was originally filed in
state court and removed to a federal district court by a party other than the

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 15 of 21

HARRIS V. MANGUM

15

this case in Maricopa County Superior Court, which is not a
“court of the United States.” Defendants, not Harris, brought
the case to federal court. We therefore conclude that Harris
could not accrue a strike from the district court’s dismissal of
this case.
The district court provided another reason to support its
conclusion that Harris did not have a protectable interest in
this case related to § 1915(g) strikes. It explained that Harris
already had at least three strikes, and so any additional strikes
he might accrue would not further impact his ability to file
cases in forma pauperis. The district court identified five
dismissals that it believed counted as strikes against Harris.
Defendants argue that four of these dismissals were properly
counted as strikes, while Harris contends that none of the
dismissals qualified as a strike.
The parties now agree that Harris did not incur a strike
from the dismissal of his complaint in Harris v. Maricopa
County Superior Court, No. 2:11-cv-1069 (D. Ariz. June 14,
2011), which was dismissed on the grounds that he already
had three strikes and did not pay the filing fee. The dismissal
of that case did not constitute a strike because, as we held in
an opinion filed after the district court issued its order:
Where a dismissal is based solely on a finding
that the plaintiff has previously incurred at
prisoner. Section 1915(g) is explicit in referring to an “appeal” that “the
prisoner has . . . brought . . . in a court of the United States.” Harris
brought this appeal to this federal court. If we dismissed the appeal as
frivolous, that could constitute a strike. We do not conclude that this
appeal was frivolous, malicious, or failed to state a claim, however.
Though unsuccessful, the arguments raised by Harris in this appeal were
colorable.

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 16 of 21

16

HARRIS V. MANGUM
least three strikes, without any additional
finding that the instant action is itself
frivolous, malicious, or fails to state a claim,
the dismissal does not count as an additional
strike. This is so because having incurred
three strikes, standing alone, is not an
enumerated ground for creating an additional
strike under the language of § 1915(g).

El-Shaddai, 833 F.3d at 1042.
In each of the other four cases the district court identified,
Harris filed a complaint that was dismissed for failure to state
a claim with leave to amend. Harris failed to file amended
complaints within the time designated in the dismissal orders,
and the district court then entered judgment against him in
each case.4 The parties dispute whether strikes should be
assessed in these circumstances. We conclude that those four
dismissals did constitute strikes, such that the district court
was correct in determining that the dismissal of the current
case would not alter Harris’s position for purposes of
§ 1915(g).
When a district court dismisses an action because the
plaintiff has not filed an amended complaint after being given
leave to do so and has not notified the court of his intention
not to file an amended complaint, we may deem the dismissal

4

These four cases were Harris v. Arizona State Prison Health
Services, et al., No. 2:03-cv-346 (D. Ariz. Mar. 28, 2003); Harris v.
Maricopa County Sheriff’s Office, No. 2:09-cv-695 (D. Ariz. May 1,
2009); Harris v. Arizona Department of Corrections, No. 2:09-cv-841 (D.
Ariz. May 1, 2009); and Harris v. Farrugia; No. 2:09-cv-737 (D. Ariz.
June 10, 2009).

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 17 of 21

HARRIS V. MANGUM

17

to be for failure to comply with a court order based on
Federal Rule of Civil Procedure 41(b). See Edwards v. Marin
Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004); Yourish v.
Cal. Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). Harris
contends that the dismissals that occurred under those
circumstances should not count as strikes under § 1915(g)
because the actions were ultimately dismissed for failure to
comply with an order—which is not identified in the statute
as a type of dismissal that gives rise to a strike—rather than
for failure to state a claim.
“While past cases have found that [a § 1915(g)] strike is
accrued by a Rule 12(b)(6) dismissal, they do not hold that
this is the only possible way.” Knapp v. Hogan, 738 F.3d
1106, 1110 (9th Cir. 2013). Accordingly, “when we review
a dismissal to determine whether it counts as a strike, the
style of the dismissal or the procedural posture is immaterial.
Instead, the central question is whether the dismissal ‘rang
the PLRA bells of frivolous, malicious, or failure to state a
claim.’” El-Shaddai, 833 F.3d at 1042 (quoting Blakely v.
Wards, 738 F.3d 607, 615 (4th Cir. 2013)).
The dismissal of each of Harris’s prior actions “rang the
PLRA bells of . . . failure to state a claim,” even if the
“procedural posture” meant that the entry of judgment in each
case was delayed until it became clear that Harris would not
file an amended complaint that did state a claim. Cf.
Thompson v. Drug Enf’t Admin., 492 F.3d 428, 433 (D.C. Cir.
2007) (holding that it would be “hypertechnical” to not assess
a strike for an appeal that was formally dismissed for failure
to prosecute when the underlying reason for the dismissal was
a finding of frivolousness). His failure to file an amended
complaint did not negate the determination already made by
the court that the complaint that he had filed, and on which he

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 18 of 21

18

HARRIS V. MANGUM

effectively elected to stand, failed to state a claim. It also
does not matter whether the dismissals were with or without
prejudice. See O’Neal v. Price, 531 F.3d 1146, 1154 (9th Cir.
2008) (“Because § 1915(g) of the current PLRA does not
distinguish between dismissals with and without prejudice,
. . . a dismissal without prejudice may count as a strike.”).
Harris argues that his dismissals should not count as
strikes because, in granting leave to amend in three of the
four cases, the district court stated that his complaints might
have been saved by amendment. But it does not matter
whether Harris might have stated a claim. What matters is
that he did not do so.
There is nothing in § 1915(g) that suggests a dismissal for
failure to state a claim only counts as a strike when the
complaint is obviously unsalvageable on its face. We have
previously held that “[l]eave to amend should be granted if it
appears at all possible that the plaintiff can correct the
defect” and that opportunities to amend are “particularly
important for the pro se litigant.” Crowley v. Bannister,
734 F.3d 967, 977–78 (9th Cir. 2013) (emphasis added in
Crowley) (quoting Lopez v. Smith, 203 F.3d 1122, 1130–31
(9th Cir. 2000)). In light of this “longstanding rule,” Lopez,
203 F.3d at 1130, district courts may routinely give pro se
plaintiffs opportunities to amend their complaints regardless
of how meritless their claims may appear. A prisoner may
not avoid incurring strikes simply by declining to take
advantage of these opportunities to amend. This conclusion
is reinforced by the fact that we interpret § 1915(g) so as to
“further[] Congress’s intent to screen out frivolous
complaints by precluding prisoners from submitting an
endless stream of frivolous in forma pauperis complaints.”
O’Neal, 531 F.3d at 1152.

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 19 of 21

HARRIS V. MANGUM

19

Accordingly, we hold that when (1) a district court
dismisses a complaint on the ground that it fails to state a
claim, (2) the court grants leave to amend, and (3) the
plaintiff then fails to file an amended complaint, the dismissal
counts as a strike under § 1915(g). Harris accrued four
strikes from his cases that were dismissed when he declined
to amend complaints that failed to state claims.
Because Harris could not incur a strike from the district
court’s dismissal of this case and because he already had
more than three strikes from previous cases, we agree with
the district court’s conclusion that he had no protectable
interest relating to § 1915(g) strikes that might have been
served by consideration of his Rule 17(c) motion.
2. Designation as a Vexatious Litigant
Harris argues in passing in his opening brief that he has
an interest in avoiding being designated a vexatious litigant,
which, he asserts, is an interest that a guardian ad litem could
have protected by voluntarily dismissing the case. “The All
Writs Act, 28 U.S.C. § 1651(a), provides district courts with
the inherent power to enter pre-filing orders against vexatious
litigants.” Molski v. Evergreen Dynasty Corp., 500 F.3d
1047, 1057 (9th Cir. 2007). The record supporting such an
order “needs to show, in some manner, that the litigant’s
activities were numerous or abusive.” De Long v. Hennessey,
912 F.2d 1144, 1147 (9th Cir. 1990).
Defendants contend in their answering brief that it is
unlikely that a future court contemplating designating Harris
to be a vexatious litigant would view the instant case more
favorably if it had been voluntarily dismissed by a guardian
ad litem. In his reply brief, Harris does not respond to this

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 20 of 21

20

HARRIS V. MANGUM

contention, nor does he even mention his supposed interest in
avoiding a vexatious litigant designation. We agree with
Defendants that the support that might be provided by the
history of this case for a vexatious litigant designation would
not seem to be materially less if it had been voluntarily
dismissed.
Regardless, the harm arising from being permitted to
proceed with an action that might someday be cited in support
of a prefiling order is considerably more speculative than the
harm from accruing a strike under § 1915(g), and we have
previously noted that the concreteness of the harm from a
strike was itself “a close question.” Belanus, 796 F.3d at
1028. Accordingly, we conclude that Harris did not have a
protectable interest in being prevented from proceeding in a
case that could hypothetically support a future vexatious
litigant designation.
Because Harris did not have a protectable interest in the
litigation (whether related to § 1915(g) strikes or a theoretical
vexatious litigant designation), we affirm the district court’s
decision to refrain from assessing Harris’s competence and to
refrain from appointing a guardian ad litem or issuing an
order pursuant to Rule 17(c).5
III.

Conclusion

Harris had no interest in this litigation that could have
been protected by appointment of a guardian ad litem or
issuance of another appropriate order pursuant to Rule 17(c).

5

Because we affirm on these grounds, we do not consider the district
court’s alternate holding that the question of Harris’s competence was not
sufficiently substantial to require a Rule 17(c) inquiry.

Case: 15-15054, 07/18/2017, ID: 10511957, DktEntry: 77-1, Page 21 of 21

HARRIS V. MANGUM

21

The district court did not abuse its discretion in declining to
evaluate Harris’s competence or give further consideration to
his motion for appointment of a guardian ad litem. We
affirm.
AFFIRMED.