Moore v. Maricopa County Sheriff’s Office

Under 28 U.S.C. § 1915(g), the dismissal of an inmate’s suit based on lack of subject matter jurisdiction does not qualify as a “strike” against acquiring forma pauperis status.

Indignant plaintiff Larry L. Moore brought suit against Maricopa County Sheriff’s Office (the “County”) seeking monetary damages in addition to other relief, for alleged mistreatment while in prison. He filed for forma pauperis status (“IFP”), as he had in four previous actions, and the district court denied his petition. The district court determined that his previous suits constituted “strikes” under 28 U.S.C. § 1915(g) which prohibits an IFP grant to an inmate if the prisoner has filed three or more actions as an inmate that were “dismissed on the grounds [they were] frivolous, malicious, or [failed] to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury.” Moore appealed claiming that under the statute, only two of the four dismissals qualified as “strikes.” Whether under 28 U.S.C. § 1915(g) a dismissal for a lack of subject matter jurisdiction constitutes a “strike” is an issue of first impression for the Ninth Circuit; the Court reviewed the published District of Columbia Circuit opinion Thompson v. DEA, 492 F.3d 428, 437 (D.C. Cir. 2007), which held a dismissal on those grounds did not constitute a “strike.” The Ninth Circuit agreed with the opinion and adopted its reasoning. Aligning with the District of Columbia Circuit’s conclusion, the Ninth Circuit determined “that Congress intended for the three-strikes rule to count 12(b)(6) dismissals but not 12(b)(1) dismissals.” Therefore, the Ninth Circuit held that only the two dismissals not based on a lack of subject matter jurisdiction constitute 28 U.S.C. § 1915(g) “strikes” and that the district court erred in its determination that IFP status was prohibited by the three-strikes rule. REVERSED and REMANDED.