Harris v. Mangum, No. 15-15054 (9th Cir. 2017)
Annotate this CasePlaintiff, an Arizona state prisoner, filed suit pro se in state court that was subsequently removed by defendant to federal court. The district court dismissed the suit as frivolous and denied pending motions without separately considering plaintiff's motion seeking appointment of a representative or guardian ad litem (GAL) to protect his interests. The Ninth Circuit agreed that the suit was frivolous but ordered a limited remand to evaluate plaintiff's competence and to consider the appointment of a GAL. The panel agreed with the district court's conclusion on remand that it was not required to evaluate plaintiff's competence because he had no interest in this case that could have been protected by appointment of a GAL or issuance of another order under Fed. R. Civ. P. 17(c)(2). Because plaintiff had incurred at least three strikes from prior cases, he was already subject to the limitations imposed under 28 U.S.C. 1915(g) and could not be adversely impacted by whatever happened in this case.
Court Description: 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. 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).
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