Pleading: Plaintiffs Allegations 1983- 9th Circuit

 Pleading:  Plaintiff’s Allegations

In Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167 (1993), the Supreme Court left open the question whether the Court’s “qualified immunity jurisprudence would require a heightened pleading standard in cases involving individual government officials.”  After Leatherman, the Supreme Court concluded that a heightened pleading standard does not apply to constitutional claims brought against individual defendants in which improper motive is a necessary element.  See Crawford-El v. Britton, 523 U.S. 574, 594–97 (1998); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512–15 (2002) (declining to impose a heightened pleading standard in employment discrimination case, explaining that “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions [such as actions brought under Rule 9(b)].”).

The Ninth Circuit has also held that a heightened pleading standard does not apply to constitutional claims brought against individual defendants in which improper motive is a necessary element.  See Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1123–26 (9th Cir. 2002) (overruling Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) (“Branch II”), Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991) (“Branch I”), and their progeny because they imposed a heightened pleading standard); see also Empress LLC v. City of San Francisco, 419 F.3d 1052, 1055–56 (9th Cir. 2005) (explaining that “the logical conclusion of LeathermanCrawford-El, and Swierkiewicz dictates that a heightened pleading standard should only be applied when the Federal Rules of Civil Procedure so require.”); Miranda v. Clark Cty., Nev., 319 F.3d 465, 470 (9th Cir. 2003) (en banc) (same).  However, after Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), a “bald allegation of impermissible motive,” would not be sufficient.  Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) (discussing Twombly and Iqbal).  The factual content contained within the complaint must allow a reasonable inference of an improper motive to satisfy Twombly and Iqbal.  See Moss, 572 F.3d at 972.

“In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”  Moss, 572 F.3d at 969 (reviewing motion to dismiss on qualified immunity, and explaining the pleading standard after Twombly and Iqbal).

c.       Pleading:  Affirmative Defense

Qualified immunity has consistently been recognized as an affirmative defense that must be pled by the defendant.  See Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); Gomez v. Toledo, 446 U.S. 635, 640 (1980); Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017) (“Qualified immunity is an affirmative defense that the government has the burden of pleading and proving.”); Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993); Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir. 1988).

Under the amended 28 U.S.C. § 1915, however, “the court shall dismiss the case at any time if the court determines that the action or appeal seeks monetary relief against a defendant who is immune from such relief.”  28 U.S.C. § 1915(e)(2)(B)(iii); see also 42 U.S.C. § 1997e(c)(1).  Section 1915A authorizes courts to dismiss complaints on similar grounds “before docketing, if feasible or, in any event, as soon as practicable after docketing” where the complaint concerns a prisoner’s conditions of confinement.  28 U.S.C. § 1915A(a) & (b)(2).

d.      Burdens of Proof

The plaintiff bears the burden of proving that the right allegedly violated was clearly established at the time of the violation; if the plaintiff meets this burden, then the defendant bears the burden of establishing that the defendant  reasonably believed the alleged conduct was lawful.  See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Trevino v. Gates, 99 F.3d 911, 916–17 (9th Cir. 1996); Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995); Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995), overruled in part on other grounds by L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996).  See also Kramer v. Cullinan, 878 F.3d 1156, 1164 (9th Cir. 2018) (“The plaintiff bears the burden of demonstrating that the right at issue was clearly established.”); Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017) (“Qualified immunity is an affirmative defense that the government has the burden of pleading and proving.”); Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011) (“The plaintiff bears the burden to show that the contours of the right were clearly established.”).

e.       Discovery

The court should not allow any discovery until it has resolved the legal question of whether there is a clearly established right.  See Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (“Qualified immunity confers upon officials “a right, not merely to avoid ‘standing trial,’ but also to avoid the burdens of ‘such pretrial matters as discovery.” (internal quotation marks and citation omitted)); Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1450 (9th Cir. 1995); Romero v. Kitsap Cty., 931 F.2d 624, 628 n.6 (9th Cir. 1991).

f.       Dismissal

If the court determines that an official is entitled to qualified immunity on any § 1983 claims for damages that are part of the action, the court should dismiss those claims prior to discovery.  See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).

Under the amended 28 U.S.C. § 1915, the court is authorized to dismiss sua sponte an “action or appeal [if it] seeks monetary relief against a defendant who is immune from such relief.”  28 U.S.C. § 1915(e)(2)(B)(iii); see also 42 U.S.C. § 1997e(c)(1).  The court has been given similar authorization with respect to pre-filing review of complaints concerning a prisoner’s conditions of confinement.  See 28 U.S.C. § 1915A.

“[A] district court may dismiss a claim on qualified immunity grounds under 28 U.S.C. § 1915(e)(2)(B)(iii), but only if it is clear from the complaint that the plaintiff can present no evidence that could overcome a defense of qualified immunity.” Chavez v. Robinson, 817 F.3d 1162, 1169 (9th Cir. 2016), as amended on reh’g (Apr. 15, 2016).  Cf. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (stating that a pro se complaint can be dismissed only “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.” (citation omitted)).  However, the court has cautioned that “pre-service dismissal on the basis of qualified immunity is appropriate only in limited circumstances.”  Chavez, 817 F.3d at 1169 (explaining that pro se complaints frequently lack sufficient information for a judge to make a qualified immunity determination without the benefit of a responsive pleading, and concluding that pro se complaint did not clearly show that he would be unable to overcome qualified immunity).

“Claims for injunctive and declaratory relief are unaffected by qualified immunity.”  Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (stating plaintiffs could proceed with claims for declaratory and injunctive relief, notwithstanding the court’s holding on qualified immunity).

g.       Summary Judgment

“Summary judgment is appropriate if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017) (quoting Fed. R. Civ. P. 56(a)).  Although both the “clearly established right” and “reasonableness” inquiries are questions of law, where there are factual disputes as to the parties’ conduct or motives, the case cannot be resolved at summary judgment on qualified immunity grounds.  See Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (“Where the objective reasonableness of an officer’s conduct turns on disputed issues of material fact, it is a question of fact best resolved by a jury, … , only in the absence of material disputes is it a pure question of law.” (internal quotation marks and citations omitted)); Lolli v. Cty. of Orange, 351 F.3d 410, 421 (9th Cir. 2003); Wilkins v. City of Oakland, 350 F.3d 949, 955–56 (9th Cir. 2003); Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003); Martinez v. Stanford, 323 F.3d 1178, 1183–85 (9th Cir. 2003).  See also Kisela v. Hughes, 138 S. Ct. 1148 (2018) (per curiam) (holding officer entitled to qualified immunity and summary judgment, where officer’s use of force did not violate clearly established law).

h.      Interlocutory Appeals

The district court’s rejection of a qualified-immunity defense, insofar as it rests on a question of law, is immediately appealable as a collateral order.  See Behrens v. Pelletier, 516 U.S. 299, 306 (1996); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Hernandez v. City of San Jose, 897 F.3d 1125, 1132 (9th Cir. 2018); Wilkinson v. Torres, 610 F.3d 546, 549–50 (9th Cir. 2010); Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 968 (9th Cir. 2010); Rodis v. City & Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir. 2009); Bingue v. Prunchak, 512 F.3d 1169, 1172 (9th Cir. 2008); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059–60 (9th Cir. 2006); Wilkins v. City of Oakland, 350 F.3d 949, 951–52 (9th Cir. 2003); Cunningham v. City of Wenatchee, 345 F.3d 802, 806–09 (9th Cir. 2003).  See also Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011) (explaining no jurisdiction to review denial of summary judgment to officers on state-law claims where officers disagreed with district court’s interpretation of the facts, because they were not appealing the denial of immunity, but rather the denial of summary judgment).

Thus, the appellate court has jurisdiction to determine whether, taking the plaintiff’s allegations as true, defendants’ conduct violates a clearly established right.”  See Cmty. House, Inc., 623 F.3d at 968; Rodis, 558 F.3d at 968; Bingue, 512 F.3d at 1172–73; Kennedy, 439 F.3d at 1060; Wilkins, 350 F.3d at 951–52; Cunningham, 345 F.3d at 807–09; Thomas v. Gomez, 143 F.3d 1246, 1248 (9th Cir. 1998); Knox v. Sw. Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997).  The appellate court also has jurisdiction to determine whether, even though facts are in dispute, no account of the defendants’ conduct could be considered objectively unreasonable.  See Knox, 124 F.3d at 1107; see also Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605 F.3d 703, 707 (9th Cir. 2010).  Finally, the appellate court retains jurisdiction where it need only determine whether a factual dispute is material.  See Bingue, 512 F.3d at 1173; Wilkins, 350 F.3d at 951–52; Cunningham v. Gates, 229 F.3d 1271, 1286 (9th Cir. 2000); Thomas, 143 F.3d at 1248; Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir. 1996).

Where, however, the appellate court is being asked to review the record to determine whether there is sufficient evidence to create a genuine issue of fact between the parties, it does not have jurisdiction over the appeal of a denial of qualified immunity.  See Johnson v. Jones, 515 U.S. 304, 319–20 (1995); Kennedy, 439 F.3d at 1059–60; Wilkins, 350 F.3d at 952; Cunningham, 345 F.3d at 807–09; Gates, 229 F.3d at 1286; Thomas, 143 F.3d at 1248–49; Knox, 124 F.3d at 1107.

The denial of qualified immunity may be appealed both at the dismissal and summary judgment stages.  See Behrens, 516 U.S. at 306–11.  If a defendant fails to appeal a denial of qualified immunity, the issue is waived on appeal following a jury verdict.  See Price v. Kramer, 200 F.3d 1237, 1244 (9th Cir. 2000).

3.       Eleventh Amendment Immunity

The Eleventh Amendment to the United States Constitution states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”  U.S. Const. amend. XI.  “The Amendment … enacts a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary’s subject-matter jurisdiction.”  Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997).  See also Sato v. Orange Cty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir.) (explaining agencies of the state are immune under the Eleventh Amendment from private damages or suits for injunctive relief), cert. denied, 138 S. Ct. 459 (2017); Stilwell v. City of Williams, 831 F.3d 1234, 1245 (9th Cir. 2016) (section 1983 did not abrogate States’ Eleventh Amendment immunity).

a.       Basic Principles

“The Eleventh Amendment prohibits federal courts from hearing suits brought against an unconsenting state.  Though its language might suggest otherwise, the Eleventh Amendment has long been construed to extend to suits brought against a state by its own citizens, as well as by citizens of other states.”  Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991) (internal citations omitted); see also N. E. Med. Servs., Inc. v. Cal. Dep’t of Health Care Servs., Health & Human Servs. Agency, Cal., 712 F.3d 461, 466 (9th Cir. 2013); Tennessee v. Lane, 541 U.S. 509, 517 (2004); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267–68 (1997); Clark v. California, 123 F.3d 1267, 1269 (9th Cir. 1997).

The Eleventh Amendment bars suits against state agencies, as well as those where the state itself is named as a defendant.  See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Beentjes v. Placer Cty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 2005); Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003); see also Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (stating that Board of Corrections is agency entitled to immunity); ldinst    HYPERLINK “http://www.westlaw.com/find/deTaylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state agency entitled to Eleventh Amendment immunity); cf. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988) (stating that Eleventh Amendment requires examination of the complaint and relief sought to determine whether the state is the “real party in interest”).  For a discussion of when an agency is an arm of the state, see supra I.A.1.d.

The Eleventh Amendment also bars damages actions against state officials in their official capacity, see Flint v. Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam), but does not bar suits against state officials seeking prospective relief, see infra I.D.3.b.(2).

Except for suits for prospective relief filed against state officials, the Eleventh Amendment bars suit regardless of the relief sought.  See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); N. E. Med. Servs., Inc., 712 F.3d at 466 (stating “the Eleventh Amendment generally does not bar suits for prospective, non-monetary relief against state officers); Brooks, 951 F.2d at 1053, 1053 n.1; S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 508 (9th Cir. 1990).

 “[A]n entity invoking Eleventh Amendment immunity bears the burden of asserting and proving those matters necessary to establish its defense.” Sato, 861 F.3d at 928.

b.      Inapplicability of Amendment

(1)     Local Governmental Units

State sovereign immunity does not extend to county and municipal governments, unless state law treats them as arms of the state.  See Sato v. Orange Cty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir.), cert. denied, 138 S. Ct. 459 (2017); see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.54 (1978); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Beentjes v. Placer Cty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 2005); Holz v. Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1180 (9th Cir. 2003).

For further discussion of how to establish a local governmental unit’s liability under § 1983, see supra I.A.1.c.(2).

(2)     State Officials
(a)     Official Capacity

The doctrine of Ex Parte Young, 209 U.S. 123 (1908) – that the Eleventh Amendment does not bar suits for prospective declaratory or injunctive relief against state officials in their official capacity – is a well-recognized exception to the general prohibition of the Eleventh Amendment.  See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102–06 (1984); Doe v. Regents of the Univ. of Cal., 891 F.3d 1147, 1153 (9th Cir. 2018) (“Under the Ex parte Young exception to that Eleventh Amendment bar, a party may seek prospective injunctive relief against an individual state officer in her official capacity.”); Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (“The Eleventh Amendment bars claims for damages against a state official acting in his or her official capacity.”); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). “However, the Young exception does not apply when a suit seeks relief under state law, even if the plaintiff names an individual state official rather than a state instrumentality as the defendant.” Regents of the Univ. of Cal., 891 F.3d at 1153 (citing Pennhurst, 465 U.S. at 117).

“[W]here Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex Parte Young.”  Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996).  The Ninth Circuit has concluded that a statute containing citizen-suit provisions could not have been intended to abrogate the Ex Parte Young exception.  See Nat. Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420, 423–24 (9th Cir. 1996); see also Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997) (holding that action brought under the Americans with Disabilities Act and the Rehabilitation Act could go forward under the Ex Parte Young doctrine).  The Supreme Court has noted that “[a]pplication of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction.”  Coeur d’Alene Tribe, 521 U.S. at 270; see Sofamor Danek Group, Inc. v. Brown, 124 F.3d 1179, 1183–85 (9th Cir. 1997).  Since § 1983 contains no scheme for enforcement, its operation is most likely not affected by Seminole’s modification of Ex Parte Young.

For a discussion of how to determine the capacity in which an official is sued, see supra I.A.1.e.(3).

(b)     Personal Capacity

The Eleventh Amendment does not bar suits seeking damages against state officials in their personal capacity.  See Hafer v. Melo, 502 U.S. 21, 30–31 (1991); Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (stating the Eleventh Amendment does not “bar claims for damages against state officials in their personal capacities”); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003); Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 394–95 (9th Cir. 1997); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam). “[W]hen a plaintiff sues a defendant for damages, there is a presumption that he is seeking damages against the defendant in his personal capacity.”  Mitchell, 818 F.3d at 442 (citing Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999)).

For a discussion of how to determine the capacity in which an official is sued, see supra I.A.1.e.(3).

c.       Abrogation

Congress can abrogate the states’ Eleventh Amendment immunity under § 5 of the Fourteenth Amendment.  Such abrogation requires an “unequivocal expression” of Congressional intent.  See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242–43 (1985), superseded by statute on other groundssee also Tennessee v. Lane, 541 U.S. 509, 517 (2004); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55–56 (1996); Gregory  v. Ashcroft, 501 U.S. 452, 460–61 (1991); N. E. Med. Servs., Inc. v. Cal. Dep’t of Health Care Servs., Health & Human Servs. Agency, Cal., 712 F.3d 461, 467 (9th Cir. 2013) (stating a “clear statement” is required to demonstrate Congress’s intent to abrogate the state’s sovereign immunity); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1184–85 (9th Cir. 2003) (per curiam); Clark v. California, 123 F.3d 1267, 1269–70 (9th Cir. 1997); Hale v. Arizona, 993 F.2d 1387, 1391 (9th Cir. 1993) (en banc).  Note, however, the power is limited. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (holding that Congress did not have the power, pursuant to § 5 of the Fourteenth Amendment, to impose the Age Discrimination in Employment Act, 29 U.S.C. § 623, on the states); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647–48 (1999) (holding that Congress did not have the power, pursuant to section 5 of the Fourteenth Amendment, to impose patent infringement statute, 35 U.S.C. § 271(a), on the states); compare Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001) (holding that Congress did not have the power, pursuant to § 5 of the Fourteenth Amendment, to impose Title I of the Americans with Disabilities Act on the states), with Clark, 123 F.3d at 1269–71 (concluding, with discussion of Flores, that Congress had power to abrogate Eleventh Amendment immunity when enacting Title II of the ADA and Rehabilitation Act pursuant to section 5 of Fourteenth Amendment).

Section 1983 does not express the requisite unequivocal intent to abrogate the states’ Eleventh Amendment immunity from suit.  See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989); Quern v. Jordan, 440 U.S. 332, 342 (1979); Hale, 993 F.2d at 1398; Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988).

Congress cannot abrogate the states’ Eleventh Amendment immunity under its Article I powers.  See Seminole Tribe, 517 U.S. at 72–74; Quillin v. Oregon, 127 F.3d 1136, 1138 (9th Cir. 1997) (per curiam); Nat. Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420, 423 (9th Cir. 1996).  But see Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 819–20 (9th Cir.) (concluding that acceptance of funds under statutory scheme passed pursuant to Article I Spending Power constitutes a waiver of Eleventh Amendment immunity), amended by 271 F.3d 910 (9th Cir. 2001).

d.      Waiver

States may waive their Eleventh Amendment immunity by making an unequivocal statement that they have consented to suit in federal court.  See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06 (1990); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superseded by statute on other groundsEdelman v. Jordan, 415 U.S. 651, 673 (1974); Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1021–22 (9th Cir. 2010) (concluding the sovereign immunity defense was waived when community college district failed to pursue that defense while litigating the suit on the merits); Krainski v. Nevada ex rel. Bd. of Regents, 616 F.3d 963, 967 (9th Cir. 2010); Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111–12 (9th Cir. 2010); Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007); Quillin v. Oregon, 127 F.3d 1136, 1138–39 (9th Cir. 1997) (per curiam); Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 394 (9th Cir. 1997); Leer v. Murphy, 844 F.2d 628, 632 (9th Cir. 1988). “A state generally waives its immunity when it voluntarily invokes federal jurisdiction or … makes a clear declaration that it intends to submit itself to federal jurisdiction.” Aholelei, 488 F.3d at 1147 (internal quotation marks, alterations, and citation omitted).  “Express waiver is not required; a state waives its Eleventh Amendment immunity by conduct that is incompatible with an intent to preserve that immunity.” Id. (internal quotation marks, alterations, and citation omitted).

Acceptance of funds under a statute passed pursuant to the Spending Power constitutes a waiver of Eleventh Amendment immunity.  See Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 793 (9th Cir. 2004) (per curiam); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) (per curiam); Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 819–20 (9th Cir.), amended by 271 F.3d 910 (9th Cir. 2001); Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997).

A state’s act of removing a lawsuit from state court to federal court waives its Eleventh Amendment immunity.  See Lapides v. Bd. of Regents, 535 U.S. 613, 616 (2002); Embury v. King, 361 F.3d 562, 565–66 (9th Cir. 2004); Bank of Lake Tahoe v. Bank of Am., 318 F.3d 914, 918–19 (9th Cir. 2003).  See also Kendrick v. Conduent State & Local Sols., Inc., No. 18-16988, 2018 WL 6566978, at *3 (9th Cir. Dec. 13, 2018) (explaining the Supreme Court’s holding in Lapides was limited and that a state waives Eleventh Amendment immunity by removal only for state-law claims ‘in respect to which the State has explicitly waived immunity from state-court proceedings.’” (quoting Lapides, 535 U.S. at 617)).

Waiver in a predecessor lawsuit does not carry over into subsequent actions.  See City of S. Pasadena v. Mineta, 284 F.3d 1154, 1157 (9th Cir. 2002).

e.       Violations of State Law

The Eleventh Amendment bars suits in federal court against states on the basis of violations of state law.  See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 124–25 (1984); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973–74 (9th Cir. 2004) (“[T]he Eleventh Amendment … precludes the adjudication of pendent state law claims against nonconsenting state defendants in federal courts.”); Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 394–95 (9th Cir. 1997).

f.       Burden of Proof

The party asserting Eleventh Amendment immunity bears the burden of proof.  See Sato v. Orange Cty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir.), cert. denied, 138 S. Ct. 459 (2017) (“‘[A]n entity invoking Eleventh Amendment immunity bears the burden of asserting and proving those matters necessary to establish its defense.’”) (quoting Del Campo v. Kennedy, 517 F.3d 1070, 1075 (9th Cir. 2008)); Hill v. Blind Indus. & Servs. of Md., 201 F.3d 1186 (9th Cir. 2000) (order); Hyland v. Wonder, 117 F.3d 405, 413 (9th Cir.), amended by 127 F.3d 1135 (9th Cir. 1997); ITSI TV Prods., Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993).

g.       Interlocutory Appeals

“It is settled that immediate appeals may be taken from orders denying claims of … sovereign immunity granted to the states under the Eleventh Amendment[.]”  Alaska v. United States, 64 F.3d 1352, 1354 (9th Cir. 1995); see also Doe v. Regents of the Univ. of Cal., 891 F.3d 1147, 1152 (9th Cir. 2018) (exercising jurisdiction over an interlocutory appeal from the denial of Eleventh Amendment immunity under the collateral order doctrine); Del Campo v. Kennedy, 517 F.3d 1070, 1074 (9th Cir. 2008); Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 792 (9th Cir. 2004) (per curiam); Clark v. California, 123 F.3d 1267, 1269 (9th Cir. 1997) (citing P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993)).

E.      Remedies

1.       Damages

a.       Compensatory

“A plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations.”  Borunda v.  Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988); see also Smith v. Wade, 461 U.S. 30, 52 (1983) (“Compensatory damages … are mandatory.”).  The Supreme Court has held that “no compensatory damages [may] be awarded for violation of [a constitutional] right absent proof of actual injury.”  Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986).

Compensatory damages include actual losses, mental anguish and humiliation, impairment of reputation, and out-of-pocket losses.  See Borunda, 885 F.2d at 1389; Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987); Chalmers v. City of Los Angeles, 762 F.2d 753, 760–61 (9th Cir. 1985). “[D]amages in § 1983 actions are not to be assessed on the basis of the abstract ‘value’ or ‘importance’ of the infringed constitutional right.”  Sloman v. Tadlock, 21 F.3d 1462, 1472 (9th Cir. 1994).

Municipalities can be held liable for compensatory damages.  See Owen v. City of Independence, 445 U.S. 622, 657 (1980); Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1996).

Although mental and emotional distress damages are available as compensatory damages under § 1983, no compensatory damages are to be awarded for the mere deprivation of a constitutional right.  See Carey v. Piphus, 435 U.S. 247, 264 (1978).  For example, where a plaintiff is alleging a procedural due process violation, the plaintiff will not be entitled to compensatory damages, “[i]f, after post-deprivation procedure, it is determined that the deprivation was justified,” because the plaintiff has suffered no actual injuries.  Raditch v. United States, 929 F.2d 478, 482 n.5 (9th Cir. 1991); see also Merritt v. Mackey, 932 F.2d 1317, 1322–23 (9th Cir. 1991); Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773, 781 (9th Cir. 1982).  Moreover, under the Prison Litigation Reform Act, “[n]o federal civil action may be brought by a prisoner … for mental or emotional injury suffered while in custody without a prior showing of physical injury.”  42 U.S.C. § 1997e(e).  For further discussion of this provision, see infra IV.F.

b.      Punitive

Punitive damages are available under § 1983.  See Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 17 (1991); Kentucky v. Graham, 473 U.S. 159, 167 n.13 (1985); Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005); Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 577 n.21 (1984).  Punitive damages are available even when the plaintiff is unable to show compensable injury.  See Smith v. Wade, 461 U.S. 30, 55 n.21 (1983); Davis v. Mason Cty., 927 F.2d 1473, 1485 (9th Cir. 1991), superseded by statute on other grounds as stated in Davis v. City of San Francisco, 976 F.2d 1536 (9th Cir. 1992), vacated in part on other grounds by 984 F.2d 345 (9th Cir. 1993) (order).

Municipalities are not liable for punitive damages.  See Graham, 473 U.S. at 167 n.13; Smith, 461 U.S. at 36 n.5; City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1996).  State officials sued in their official capacity are also immune from punitive damages.  See Mitchell, 75 F.3d at 527.

Punitive damages are awarded in the jury’s discretion.  See Smith, 461 U.S. at 54; Woods v. Graphic Commc’ns, 925 F.2d 1195, 1206 (9th Cir. 1991).  The jury must find either that the defendant acted with an evil motive or demonstrated reckless indifference to the constitutional rights of the plaintiff.  See Smith, 461 U.S. at 56; Dang, 422 F.3d at 807–09 (holding “that oppressive conduct is a proper predicate for punitive damages under § 1983”); Mitchell, 75 F.3d at 527 n.7; Morgan, 997 F.2d at 1255; Bouman v. Block, 940 F.2d 1211, 1233 (9th Cir. 1991).  The jury must also “make ‘a discretionary moral judgment’ that the ‘conduct merit[s] a punitive award.’” Woods, 925 F.2d at 1206 (quoting Smith, 461 U.S. at 52).

c.       Presumed

“Damages are not presumed to flow from every constitutional violation.  Presumed damages are appropriate when there is a great likelihood of injury coupled with great difficulty in proving damages.”  Trevino v. Gates, 99 F.3d 911, 921 (9th Cir. 1996) (citing Carey v. Piphus, 435 U.S. 247, 263 (1978)).  Presumed damages should not be awarded where compensatory damages have been awarded.  See Trevino, 99 F.3d at 921–22.

d.      Nominal

Nominal damages must be awarded if the plaintiff proves that his or her constitutional rights have been violated.  See Carey v. Piphus, 435 U.S. 247, 266–67 (1978); Hazel v. Crofoot, 727 F.3d 983, 991–92 n.6 (9th Cir. 2013) (“Nominal damages must be awarded in cases in which the plaintiff is not entitled to compensatory damages, such as cases in which no actual injury is incurred or can be proven.”); Cummings v. Connell, 402 F.3d 936, 942–46 (9th Cir. 2005); Schneider v. Cty. of San Diego, 285 F.3d 784, 794–95 (9th Cir. 2002); Trevino v. Gates, 99 F.3d 911, 922 (9th Cir. 1996); Wilks v. Reyes, 5 F.3d 412, 416 (9th Cir. 1993); Draper v. Coombs, 792 F.2d 915, 921–22 (9th Cir. 1986).  See also Guy v. City of San Diego, 608 F.3d 582, 587 (9th Cir. 2010); Mahach-Watkins v. Depee, 593 F.3d 1054, 1059 (9th Cir. 2010) (explaining that in a civil rights suit for damages, the award of nominal damages highlights the plaintiff’s failure to prove actual, compensable injury).

2.       Injunctive Relief

Section 1983 is an exception to the Anti-Injunction Act, 28 U.S.C. § 2283, which establishes that federal courts may not enjoin state-court proceedings unless expressly authorized to do so by Congress.  See Mitchum v. Foster, 407 U.S. 225, 242–43 (1972); Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 468 (9th Cir. 1984).  This does “not displace the normal principles of equity, comity and federalism that should inform the judgment of federal courts when asked to oversee state law enforcement authorities.”  City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983); Mitchum, 407 U.S. at 243.  In fact, injunctive relief should be used “sparingly, and only … in clear and plain case[s].”  Rizzo v. Goode, 423 U.S. 362, 378 (1976) (citation and internal quotation marks omitted).

Where the prisoner is challenging conditions of confinement and is seeking injunctive relief, transfer to another prison renders the request for injunctive relief moot absent some evidence of an expectation of being transferred back.  See Preiser v. Newkirk, 422 U.S. 395, 402–03 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam); see also Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007). Compare Pride v. Correa, 719 F.3d 1130, 1138 (9th Cir. 2013) (instructing, on remand, the district court to consider whether claim for injunctive relief is moot as to a prison official who had been transferred to another prison, and no longer worked at the facility in question).

a.       Law Prior to Enactment of the Prison Litigation Reform Act

Prior to enactment of the Prison Litigation Reform Act, a court could award permanent injunctive relief “only if the wrongs [were] ongoing or likely to recur.”  Fed. Trade Comm’n v. Evans Prods. Co., 775 F.2d 1084, 1087 (9th Cir. 1985); LaDuke v. Nelson, 762 F.2d 1318, 1323–24 (9th Cir. 1985), amended by 796 F.2d 309 (9th Cir. 1986).

Formerly, the court could award preliminary injunctive relief where the plaintiff showed (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in the plaintiff’s favor.  See Teamsters Joint Council No. 42 v. Int’l Bhd. of Teamsters, AFL-CIO, 82 F.3d 303, 307 (9th Cir. 1996); Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990); Oakland Tribune, Inc. v. Chronicle Publ’g Co., Inc., 762 F.2d 1374, 1376 (9th Cir. 1985).

Under the former standard, the loss of money – or an injury that could be measured in damages – was not considered irreparable.  See Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1334–35 (9th Cir. 1995), superseded by statute on other grounds as stated in Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1158–59 (9th Cir. 2011); Oakland Tribune, 762 F.2d at 1376–77.

b.      Law after Enactment of the Prison Litigation Reform Act

The Prison Litigation Reform Act (“PLRA”) made three changes with respect to awarding injunctive relief in civil actions concerning prison conditions.  “Although the PLRA significantly affects the type of prospective injunctive relief that may be awarded, it has not substantially changed the threshold findings and standards required to justify an injunction.”  Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001); see also Hallett v. Morgan, 296 F.3d 732, 743–44 (9th Cir.  2002).

First, the PLRA states that:

[t]he court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.  The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

18 U.S.C. § 3626(a)(1)(A) (1997).  For a similar standard with respect to temporary restraining orders and preliminary injunctive relief see 18 U.S.C. § 3626(a)(2).

Second, the PLRA permits a defendant to seek the termination or modification of prospective relief where such relief fails to meet the above standard.  See 18 U.S.C. § 3626(b)(2).  The Ninth Circuit has concluded that this provision is constitutional.  See Gilmore v. California, 220 F.3d 987, 1008 (9th Cir. 2000).  The burden is on the state, however, to show excess of the constitutional minimum.  See id. at 1008.

Third, the standards governing the appropriate scope of injunctive relief also govern the appropriate scope of private settlements unless the private settlement states that it is not subject to court enforcement except for the “reinstatement of the civil proceeding that the agreement settled.”  18 U.S.C. § 3626(c)(2).

These new requirements apply to all pending cases.  See Hallett, 296 F.3d at 742–43; Oluwa v. Gomez, 133 F.3d 1237, 1239–40 (9th Cir. 1998).  For further discussion of these provisions, see infra IV.G.

3.       Declaratory Relief

“A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.”  Eccles v. Peoples Bank of Lakewood Vill., Cal., 333 U.S. 426, 431 (1948); see also Hewitt v. Helms, 482 U.S. 755, 762–63 (1987); Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962) (per curiam); Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 533 (9th Cir. 2008); Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1222–23 (9th Cir. 1998) (en banc).  “Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties.”  United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc) (per curiam); see also L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 703 (9th Cir. 1992).  It is unnecessary to settle the entire controversy; it is enough if “a substantial and important question currently dividing the parties” is resolved.  Eu, 979 F.2d at 703–04.

F.      Exhaustion of Remedies

1.       State Remedies

Generally, exhaustion of state judicial or state administrative remedies is not a prerequisite to bringing an action under § 1983.  Patsy v. Bd. of Regents, 457 U.S. 496, 500 (1982) (“[W]e have on numerous occasions rejected the argument that a § 1983 action should be dismissed where the plaintiff has not exhausted state administrative remedies.”); Monroe v. Pape, 365 U.S. 167, 183 (1961) (“The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.”), overruled on other  grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).  See also Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (noting that, generally, exhaustion is not a prerequisite to an action under § 1983, but explaining that the Prison Litigation Reform Act created an exhaustion requirement for suits brought by prisoners under 42 U.S.C. § 1983 with respect to prison conditions).

Exhaustion of state tort claim procedures is not required.  See Rumbles v. Hill, 182 F.3d 1064, 1070 (9th Cir. 1999), overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001).

When a state prisoner’s otherwise valid § 1983 complaint seeks speedier release from confinement however, the prisoner must proceed by way of a federal habeas corpus proceeding, which does require the exhaustion of state remedies.  Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).  Likewise, if a prisoner seeks to challenge the validity of a conviction or sentence, the prisoner must first demonstrate that the conviction or sentence has been successfully overturned.  See Edwards v. Balisok, 520 U.S. 641, 646–48 (1997); Heck v. Humphrey, 512 U.S. 477, 483–87 (1994).

For further discussion of the Preiser and Heck doctrines, see infra. I. J.

2.       Prison Administrative Remedies

Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under … [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”  42 U.S.C. § 1997e(a).  But see 42 U.S.C. § 1997e(c)(2) (where court concludes claim is frivolous, fails to state a claim, or is brought against defendants who are immune from suit for damages, the court may dismiss without first requiring exhaustion).  “Courts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA’s exhaustion requirement. The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are ‘available.’”  Ross v. Blake, 136 S. Ct. 1850, 1862 (2016). “Exhaustion should be decided, if feasible, before reaching the merits of a prisoner’s claim.” Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (en banc).

Exhaustion is required under this provision regardless of the type of relief sought and the type of relief available through administrative procedures.  See Booth v. Churner, 532 U.S. 731, 741 (2001); Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010) (explaining that an inmate seeking only money damages must still complete a prison administrative process that could provide some relief, but no money, in order to exhaust administrative remedies).  The exhaustion requirement applies to all claims relating to prison life that do not implicate the duration of the prisoner’s sentence.  See Porter v. Nussle, 534 U.S. 516, 524–32 (2002); see also Nettles v. Grounds, 830 F.3d 922, 932 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 645, (2017); Roles v. Maddox, 439 F.3d 1016, 1018 (9th Cir. 2006).

Prisoners must exhaust their administrative remedies prior to filing suit, not during the pendency of the suit.  See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring dismissal without prejudice where a prisoner “d[oes] not exhaust his administrative remedies prior to filing suit but is in the process of doing so when a motion to dismiss is filed.”); see also Rhodes v. Robinson, 621 F.3d 1002, 1006–07 (9th Cir. 2010) (holding that exhaustion requirement is satisfied so long as prisoner exhausted his administrative remedies with respect to new claims asserted in second amended complaint before tendering that complaint for filing); Vaden v. Summerhill, 449 F.3d 1047, 1150–51 (9th Cir. 2006) (holding that an action is “brought” for purposes of the PLRA when the complaint is tendered to the district clerk, not when it is subsequently filed pursuant to the grant of a motion to proceed in forma pauperis; thus, a prisoner must exhaust his administrative remedies before sending his complaint to the district court).

Exhaustion is not a jurisdictional requirement for bringing an action.  See Rumbles v. Hill, 182 F.3d 1064, 1067–68 (9th Cir. 1999), overruled on other grounds by Booth, 532 U.S. 731.  Moreover, failure to exhaust is an affirmative defense that defendants must raise and prove.  See Jones v. Bock, 549 U.S. 199, 212–17 (2007) (explaining that inmates are not required to plead specifically or demonstrate exhaustion in their complaints); Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc); Nunez v. Duncan, 591 F.3d 1217, 1223–26 (9th Cir. 2010) (explaining that lack of exhaustion must be raised as a defense, and that failure to exhaust may be excused in certain circumstances).  As such, “a defendant must first prove that there was an available administrative remedy and that the prisoner did not exhaust that available remedy. … Then, the burden shifts to the plaintiff, who must show that there is something particular in his case that made the existing and generally available administrative remedies effectively unavailable to him by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile. … The ultimate burden of proof, however, remains with the defendants.”  Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (internal quotation marks and citation omitted).

“[A] failure to exhaust is more appropriately handled under the framework of the [Federal Rules of Civil Procedure] than under an “unenumerated” (that is, non-existent) rule.” Albino, 747 F.3d at 1166 (quotation in the original).

In the rare event that a failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6). Otherwise, defendants must produce evidence proving failure to exhaust in order to carry their burden. If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.

Albino, 747 F.3d at 1166.

“[O]nly those individuals who are prisoners (as defined by 42 U.S.C. § 1997e(h)) at the time they file suit must comply with the exhaustion requirements of 42 U.S.C. § 1997e(a).”  Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009) (concluding that because Talamantes was released from custody over a year before filing his action in federal court, he was not required to exhaust administrative remedies before filing his action).

An inmate’s compliance with the PLRA exhaustion requirement as to some, but not all claims does not warrant dismissal of the entire action.  Jones, 549 U.S. at 219–24; Lira v. Herrera, 427 F.3d 1164, 1175 (9th Cir. 2005) (rejecting a total exhaustion requirement and holding that where a prisoner’s complaint contains both exhausted and unexhausted claims, a district court should dismiss only the unexhausted claims).  A prisoner may amend her or his complaint to allege only exhausted claims.  See Lira, 427 F.3d 1175–76 (explaining that where the exhausted and unexhausted claims are closely related and difficult to untangle, the proper approach is to dismiss the defective complaint with leave to amend to allege only fully exhausted claims); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).  “In PLRA cases, amended pleadings may supersede earlier pleadings.” Jackson, 870 F.3d at 934; see also Rhodes 621 F.3d at 1005.  Accordingly, “[e]xhaustion requirements apply based on when a plaintiff files the operative complaint, in accordance with the Federal Rules of Civil Procedure.”  Jackson, 870 F.3d at 935 (citing Jones, 549 U.S. at 212) (holding that the third amended complaint was the operative complaint); see also Rhodes, 621 F.3d at 1005–06 (concluding that the amended complaint controlled the PLRA exhaustion analysis).

“[T]he PLRA exhaustion requirement requires proper exhaustion.”  Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010); Harvey v. Jordan, 605 F.3d 681, 683–84 (9th Cir. 2010).  Therefore, “a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court[.]”  Woodford v. Ngo, 548 U.S. at 88; see also Sapp, 623 F.3d at 621–27 (explaining proper exhaustion, and recognizing an exception to the requirement where a prison official renders administrative remedies effectively unavailable); Harvey, 605 F.3d at 684–86 (concluding that inmate failed to exhaust administrative remedies for excessive force claim, but that he exhausted remedies for due process claim when officials purported to grant relief that resolved his grievance to his satisfaction); Ngo v. Woodford, 539 F.3d 1108, 1109–10 (9th Cir. 2008) (on remand from the Supreme Court, court affirmed dismissal for failure to exhaust administrative remedies and rejected continuing violations theory).  “‘[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.’”  Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)); see also Fuqua v. Ryan, 890 F.3d 838, 845 (9th Cir. 2018) (explaining “[t]he level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” (quoting Jones, 549 U.S. at 218)); Manley v. Rowley, 847 F.3d 705, 711–12 (9th Cir. 2017); Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

Note that because the PLRA requires exhaustion only of those administrative remedies “as are available,” the PLRA does not require exhaustion when circumstances render administrative remedies “effectively unavailable.”  See Sapp, 623 F.3d at 822–23; Nunez, 591 F.3d at 1223–26 (holding that Nunez’s failure to timely exhaust his administrative remedies was excused because he took reasonable and appropriate steps to exhaust his claim and was precluded from exhausting not through his own fault but by the warden’s mistake).  “[F]ailure to exhaust a remedy that is effectively unavailable does not bar a claim from being heard in federal court.” McBride v. Lopez,  807 F.3d 982, 987 (9th Cir. 2015) (as amended) (holding that “the threat of retaliation for reporting an incident can render the prison grievance process effectively unavailable and thereby excuse a prisoner’s failure to exhaust administrative remedies”).  “[R]emedies are not considered ‘available’ if, for example, prison officials do not provide the required forms to the prisoner or if officials threaten retaliation for filing a grievance.”  Draper v. Rosario, 836 F.3d 1072, 1078 (9th Cir. 2016).

In Ross v. Blake, [136 S. Ct. 1850 (2016),] the Supreme Court [held] that § 1997e(a) requires an inmate to exhaust only those grievance procedures “that are capable of use to obtain some relief for the action complained of.” … . By way of a non-exhaustive list, the Court recognized three circumstances in which an administrative remedy was not capable of use to obtain relief despite being officially available to the inmate: (1) when the administrative procedure “operates as a simple dead end” because officers are “unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it”; and (3) when prison administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859–60.

Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017) (per curiam) (as amended) (explaining that when “prison officials improperly fail to process a prisoner’s grievance, the prisoner is deemed to have exhausted available administrative remedies”).

A “prisoner exhausts ‘such administrative remedies as are available,’ … , under the PLRA despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process.”  Reyes, 810 F.3d at 658 (citation omitted).  However, a prisoner’s participation in an internal investigation of official conduct does not constitute constructive exhaustion of administrative remedies.  See Panaro v. City of N. Las Vegas, 432 F.3d 949, 953–54 (9th Cir. 2005).

The PLRA exhaustion requirement “applies with equal force to prisoners held in private prisons.”  Roles, 439 F.3d at 1017.

Civil detainees are not “prisoners” within the meaning of the PLRA and therefore are not subject to the exhaustion requirements.  Page v. Torrey, 201 F.3d 1136, 1139–40 (9th Cir. 2000); see also Talamantes, 575 F.3d at 1023–24.

The PLRA requires administrative exhaustion of Americans with Disabilities Act (“ADA”) and Rehabilitation Act claims.  O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059–62 (9th Cir. 2007); Butler v. Adams, 397 F.3d 1181, 1182–83 (9th Cir. 2005).  For further discussion of the ADA and Rehabilitation Act in the prison context, see infra III.B.6.

For further discussion of the PLRA, see infra IV.E.

G.      Statute of Limitations

1.       General Principles

Because § 1983 contains no specific statute of limitations, federal courts should borrow state statutes of limitations for personal injury actions in § 1983 suits.  See Wallace v. Kato, 549 U.S. 384, 387 (2007); Soto v. Sweetman, 882 F.3d 865, 871 (9th Cir. 2018) (“Federal courts in § 1983 actions apply the state statute of limitations from personal-injury claims and borrow the state’s tolling rules.”), cert. denied, No. 18-5487, 2018 WL 3757759 (U.S. Nov. 13, 2018); Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) (“The statute of limitations applicable to an action pursuant to 42 U.S.C. § 1983 is the personal injury statute of limitations of the state in which the cause of action arose.”); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); Canatella v. Van De Kamp, 486 F.3d 1128, 1132–33 (9th Cir. 2007); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004); Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002); Johnson v. California, 207 F.3d 650, 653 (9th Cir. 2000) (per curiam); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); cf. 28 U.S.C. § 1658 (creating a uniform four-year limitations period for civil actions arising under federal statutes that do not specify a limitations period, so long as the cause of action was created by Congress after December 1, 1990).

 Federal courts should also borrow all applicable provisions for tolling the limitations period found in state law.  See Wallace, 549 U.S. at 394; Hardin v. Straub, 490 U.S. 536, 539 (1989); Bd. of Regents v. Tomanio, 446 U.S. 478, 484–85 (1980); Douglas, 567 F.3d at 1109; Canatella, 486 F.3d at 1132; Jones, 393 F.3d at 927; Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 694 (9th Cir. 2003); Sain, 309 F.3d at 1138; Johnson, 207 F.3d at 653; TwoRivers, 174 F.3d at 992Also, the “statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process.”  Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005); see also Soto, 882 F.3d at 872 (“This circuit has, with other circuits, adopted a mandatory tolling provision for claims subject to the Prison Litigation Reform Act.”).

On the other hand, “[f]ederal law determines when a cause of action accrues and the statute of limitations begins to run for a § 1983 claim.  A federal claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.”  Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991) (citations and internal quotation marks omitted); see also Wallace, 549 U.S. at 388; Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015); Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014); Douglas, 567 F.3d at 1109; Canatella, 486 F.3d at 1133; Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926–27 (9th Cir. 2004); Johnson, 207 F.3d at 653; cf. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1289–93 (9th Cir. 2006) (holding that “a federal court borrowing a state’s time period for filing suit brought under federal law should not also borrow the state’s time limits for serving the complaint”); Sain, 309 F.3d at 1138 (holding that a § 1983 action is commenced in federal district court for purposes of the statute of limitations when the complaint is filed pursuant to the Federal Rules of Civil Procedure, not pursuant to state civil procedure rules). In Rosales-Martinez, the court held the statute of limitations for a prisoner to bring a § 1983 action commenced when the state court vacated the prisoner’s convictions.  753 F.3d at 896 (reversing the district court’s dismissal of the action as untimely, because the wrongful conviction claims did not accrue until his convictions were vacated).  See also Jackson v. Barnes, 749 F.3d 755, 761 (9th Cir. 2014) (Fifth Amendment claim accrued when initial conviction overturned).

Federal courts should apply federal law, not state law, in deciding whether to apply an amended statute of limitations retroactively.  See Fink v. Shedler, 192 F.3d 911, 914–15 (9th Cir. 1999) (explaining that where the state has modified or eliminated the tolling provision relating to the disability of incarceration, the court will apply it retroactively only where manifest injustice would not result); TwoRivers, 174 F.3d at 993–96.

2.       States’ Personal-Injury Statutes of Limitations

  • Alaska:  two years, see DeNardo v. Murphy, 781 F.2d 1345, 1347 (9th Cir. 1986) (citing Alaska Stat. Ann. § 09.10.070).
  • Arizona:  two years, see Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004) (citing Ariz. Rev. Stat. § 12–542); De Luna v. Farris, 841 F.2d 312, 313 (9th Cir. 1988).  See also Soto v. Sweetman, 882 F.3d 865, 871 (9th Cir. 2018), cert. denied, No. 18-5487, 2018 WL 3757759 (U.S. Nov. 13, 2018).
  • California: two years, see; Jackson v. Barnes, 749 F.3d 755, 761 (9th Cir. 2014) (citing Cal. Civ. Proc. Code § 335.1); Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 701 n.3 (9th Cir. 2009); Canatella v. Van De Kamp, 486 F.3d 1128, 1132–33 (9th Cir. 2007) (explaining that the current version of California’s personal-injury statute of limitations, which became effective on January 1, 2003, does not apply retroactively; therefore, “any cause of action that was more than one-year old as of January 1, 2003 would be barred under the previous one-year statute of limitations.”); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (same); see also Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1041 n.8 (9th Cir. 2011) (applying one year limitations period because the extension of the statute of limitations does not apply to claims under § 1983 already barred).
  • Guam:  two years, see Ngiraingas v. Sanchez, 858 F.2d 1368, 1375 (9th Cir. 1988), aff’d on other grounds by 495 U.S. 182 (1990), abrogated on other grounds as recognized by Paeste v. Gov’t of Guam, 798 F.3d 1228, 1237 (9th Cir. 2015).  See also 7 Guam Code Annotated § 11306.
  • Hawaii:  two years, see Haw. Rev. Stat. § 657-7; cf. Hilao v. Estate of Marcos, 103 F.3d 767, 773 (9th Cir. 1996).
  • Idaho:  two years, see Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 2004); Hallstrom v. City of Garden City, 991 F.2d 1473, 1476 (9th Cir. 1992) (citing Idaho Code § 5-219(4)).
  • Montana:  three years, see Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015) (citing Mont. Code Ann. § 27-2-204(1)); Harvey v. Waldron, 210 F.3d 1008, 1013 (9th Cir. 2000) (same), overruled in part on other grounds by Wallace v. Kato, 549 U.S. 384 (2007).
  • Nevada:  two years, see Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014); Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989) (per curiam) (citing Nev. Rev. Stat. 11.190(4)(c), (e)).
  • Northern Mariana Islands:  two years, see 7 N. Mar. I. Code § 2503(d); see also Nw. Airlines, Inc. v. Camacho, 296 F.3d 787, 789 (9th Cir. 2002).
  • Oregon:  two years, see Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (citing Or. Rev. Stat. § 12.110(1)); Sain v. City of Bend, 309 F.3d 1134, 1139–40 (9th Cir. 2002); Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989) (per curiam).
  • Washington:  three years, see Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991); Joshua v. Newell, 871 F.2d 884, 886 (9th Cir. 1989) (citing Wash. Rev. Code Ann. § 4.16.080(2)).

3.       Dismissal

“A statute of limitation defense may be raised by a motion to dismiss if the running of the limitation period is apparent on the face of the complaint.”  Vaughan v. Grijalva, 927 F.2d 476, 479 (9th Cir. 1991); see also Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014) (district court granted motion to dismiss the action as time-barred); Estate of Blue v. Cty. of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997).  Where a defendant has not waived the statute of limitations issue, the district court may dismiss the case on timeliness grounds even if the issue is not raised in the motion before the court.  See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686–87 (9th Cir. 1993).

Generally, however, the question of equitable tolling cannot be decided on a motion to dismiss.  See Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995); Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993).

H.      Attorney’s Fees

1.       Prison Litigation Reform Act (42 U.S.C. § 1997e(d))

The Prison Litigation Reform Act (“PLRA”) modified the criteria for awarding attorney’s fees in cases brought by prisoners.

The fee awarded must be (1) “directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded” under 42 U.S.C. § 1988; and (2) “proportionately related to the court ordered relief for the violation;” or (3) “directly and reasonably incurred in enforcing the relief ordered for the violation.”  42 U.S.C. § 1997e(d)(1); see also Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 808 (9th Cir. 2018) (explaining “[t]he PLRA limits recovery of attorney’s fees ‘in any action brought by a prisoner … in which attorney’s fees are authorized under [42 U.S.C. § 1988].’”); Kelly v. Wengler, 822 F.3d 1085, 1099–1100 (9th Cir. 2016) (discussing how the PLRA alters the lodestar method in prisoner civil rights cases).  Where the action results in a monetary judgment, a portion of the judgment – not to exceed 25 percent – shall be used to pay attorney’s fees.  See id. § 1997e(d)(2); see also Murphy v. Smith, 138 S. Ct. 784 (2018) (interpreting § 1997e(d)(2)).  “If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.”  Id. § 1997e(d)(2).  Finally, “[n]o award of attorney’s fees in an action [brought by a prisoner] shall be based on an hourly rate greater than 150 percent of the hourly rate established under [18 U.S.C. § 3006A].”  42 U.S.C. § 1997e(d)(3); see also Dannenberg v. Valadez, 338 F.3d 1070, 1073–75 (9th Cir. 2003) (holding that § 1997e(d), limiting defendants’ liability for attorney’s fees to 150 percent of any monetary judgment, is inapplicable where prisoner secures both monetary and injunctive relief).  Note that the PLRA attorney’s fees cap does not apply to fees incurred by a prisoner in successfully defending the judgment on appeal.  Woods v. Carey, 722 F.3d 1177, 1182 (9th Cir. 2013).

The PLRA limits attorney’s fees for services performed after the effective date, but not for those performed prior to the effective date.  See Martin v. Hadix, 527 U.S. 343, 347 (1999); Webb v. Ada Cty., 285 F.3d 829, 837–38 (9th Cir. 2002).  For further discussion of these provisions, see infra IV.I.

2.       42 U.S.C. § 1988

For a discussion of limitations on attorney’s fees awards to plaintiffs in prisoner cases, see supra I.H.1.

a.       General Principles

42 U.S.C. § 1988(b) provides for an award of attorney’s fees to prevailing parties if the action is brought under certain enumerated statutes, including § 1983.  See Sole v. Wyner, 551 U.S. 74, 77 (2007); Gonzalez v. City of Maywood, 729 F.3d 1196, 1199 (9th Cir. 2013); La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010); Benton v. Or. Student Assistance Comm’n, 421 F.3d 901, 904 (9th Cir. 2005); Thomas v. City of Tacoma, 410 F.3d 644, 647 (9th Cir. 2005); Cummings v. Connell, 402 F.3d 936, 946 (9th Cir. 2005); Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).

“The purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances.”  Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citation and internal quotation marks omitted); see Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006); Oviatt v. Pearce, 954 F.2d 1470, 1481 (9th Cir. 1992).

“Accordingly, a prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.”  Hensley, 461 U.S. at 429 (citation and internal quotation marks omitted); see also Blanchard v. Bergeron, 489 U.S. 87, 89 n.1 (1989); Thomas, 410 F.3d at 647; Friend v. Kolodzieczak, 72 F.3d 1386, 1389 (9th Cir. 1995) (order).

b.      Determining when a Plaintiff is a “Prevailing Party”

“In order to qualify as a prevailing party, a plaintiff must have succeeded on the merits of at least some of its claims.”  Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1489 (9th Cir. 1995); see also Sole v. Wyner, 551 U.S. 74, 82 (2007); Hewitt v. Helms, 482 U.S. 755, 759–60 (1987); Cummings v. Connell, 402 F.3d 936, 946 (9th Cir. 2005).  “In short, a plaintiff ‘prevails’ when actual relief on the merits of [the plaintiff’s] claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”  Farrar v. Hobby, 506 U.S. 103, 111–12 (1992); see also Sole, 551 U.S. at 82–83; Tex. Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791–92 (1989); Gerling Global Reinsurance Corp. of Am. v. Garamendi, 400 F.3d 803, 806 (9th Cir.), amended by 410 F.3d 531 (9th Cir. 2005) (order); Friend v. Kolodzieczak, 72 F.3d 1386, 1389 (9th Cir. 1995) (order).  “Success is [also] measured … in terms of the significance of the legal issue on which the plaintiff prevailed and the public purpose the litigation served.”  Morales v. City of San Rafael, 96 F.3d 359, 365 (9th Cir. 1996), amended by 108 F.3d 981 (9th Cir. 1997) (order); see also McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th Cir. 2009) (holding “that attorney’s fees awarded under 42 U.S.C. § 1988 must be adjusted downward where the plaintiff has obtained limited success on his pleaded claims, and the result does not confer a meaningful public benefit.”); Hashimoto v. Dalton, 118 F.3d 671, 678 (9th Cir. 1997).

This change of status must be “judicially sanctioned” in the form of a judgment or consent decree; voluntary changes in behavior are insufficient.  See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604–05 (2001); see also Watson v. Cty. of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002) (explaining that a “preliminary injunction issued by a judge carries all the ‘judicial imprimatur’ necessary to satisfy Buckhannon.”); Labotest, Inc. v. Bonta, 297 F.3d 892, 895 (9th Cir. 2002) (holding that “a plaintiff who obtains a court order incorporating an agreement that includes relief the plaintiff sought in the lawsuit is a prevailing party entitled to attorney’s fees under 42 U.S.C. § 1988.”).

A plaintiff who wins only nominal damages may be a prevailing party under § 1988.  See Farrar, 506 U.S. at 112; Klein v. City of Laguna Beach, 810 F.3d 693, 699–700 (9th Cir. 2016) (recovery of nominal damages by activist who sought no compensatory damages, did not preclude attorney fee award); Guy v. City of San Diego, 608 F.3d 582, 588 (9th Cir. 2010); Mahach-Watkins v. Depee, 593 F.3d 1054, 1059 (9th Cir. 2010); Benton v. Or. Student Assistance Comm’n, 421 F.3d 901, 904 (9th Cir. 2005); Cummings, 402 F.3d at 946; Friend, 72 F.3d at 1390 n.1; Wilcox v. City of Reno, 42 F.3d 550, 554 (9th Cir. 1994).  If the plaintiff sought compensatory damages, and only received nominal damages, however, an attorney’s fee award may be inappropriate.  See Farrar, 506 U.S. at 115; Guy, 608 F.3d at 588–89; Mahach-Watkins, 593 F.3d at 1059; Benton, 421 F.3d at 904–06; Cummings, 402 F.3d at 946–47; Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir. 1994); Wilcox, 42 F.3d at 554–55.

Where the plaintiff sought primarily injunctive relief, the lack of a monetary judgment does not mean that the plaintiff is not a prevailing party.  See Friend, 72 F.3d at 1390; see also Gerling Global Reinsurance Corp., 400 F.3d at 806 (holding that plaintiffs were prevailing parties because they obtained “all of the relief they sought in their lawsuit – a permanent injunction”); Watson, 300 F.3d at 1095–96 (explaining that a plaintiff who obtains a preliminary injunction but fails to prevail on his or her other claims is a prevailing party for purposes of § 1988 because relief in the form of a permanent injunction had become moot).  However, a plaintiff is not a prevailing party if the “achievement of a preliminary injunction …  is reversed, dissolved, or otherwise undone by the final decision in the same case.”  Sole, 551 U.S. at 83.

Where a declaratory judgment affects the behavior of the defendant towards the plaintiff, it is sufficient to serve as the basis for an award of fees.  See Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam).  “[A] favorable judicial statement of law in the course of litigation,” however, is insufficient “to render [the plaintiff] a ‘prevailing party.’”  Hewitt v. Helms, 482 U.S. 755, 763 (1987); see also Farrar, 506 U.S. at 110.

“Litigation that results in an enforceable settlement agreement can confer ‘prevailing party’ status on a plaintiff.”  La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010).  To determine whether a settlement agreement confers prevailing party status on a plaintiff, the court has “used a three-part test, looking at: ‘(1) judicial enforcement; (2) material alteration of the legal relationship between the parties; and (3) actual relief on the merits of [the plaintiff’s] claims.’”  Id. (quoting Saint John’s Organic Farm v. Gem Cty. Mosquito Abatement Dist., 574 F.3d 1054, 1059 (9th Cir. 2009)).

Where the plaintiff is successful on only some claims, the court must determine whether the successful and unsuccessful claims were related.  See Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1063 (9th Cir. 2006); Dang v. Cross, 422 F.3d 800, 812–13 (9th Cir. 2005); O’Neal v. City of Seattle, 66 F.3d 1064, 1068 (9th Cir. 1995).  If the claims are unrelated, then the fee award should not include time spent on unsuccessful claims; if the claims are related, “then the court must … [determine] the ‘significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended.’”  O’Neal, 66 F.3d at 1068–69 (citations omitted); see also Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003).  “Claims are related where they involve ‘a common core of facts’ or are ‘based on related legal theories.’ ‘[T]he test is whether relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury upon which the relief granted is premised.’”  O’Neal, 66 F.3d at 1069 (quoting Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1499 (9th Cir. 1995)); see also Thomas v. City of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005); Webb, 330 F.3d at 1168–69.

c.       Determining the Amount of the Fee Award

          The customary method of determining fees … is known as the lodestar method… .  The ‘lodestar’ is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.  After making that computation, the district court then assesses whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr [v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975)] factors.

Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996) (internal citation omitted), amended by 108 F.3d 981 (9th Cir. 1997); see also Blum v. Stenson, 465 U.S. 886, 888 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008); Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006); Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1064 (9th Cir. 2006); Dang v. Cross, 422 F.3d 800, 812 (9th Cir. 2005); Friend v. Kolodzieczak, 72 F.3d 1386, 1389 (9th Cir. 1995) (order); Stewart v. Gates, 987 F.2d 1450, 1452 (9th Cir. 1993).  There is a strong presumption in favor of the lodestar and it should be adjusted only in exceptional cases.  See City of Burlington v. Dague, 505 U.S. 557, 562 (1992); Tutor-Saliba Corp., 452 F.3d at 1064–65; Morales, 96 F.3d at 364 n.8.

The court should consider the following factors when making the lodestar determination:

(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.

Morales, 96 F.3d at 364 n.8 (citing Kerr, 526 F.2d at 70); see also Gonzalez, 729 F.3d at 1209 n.11; Ballen, 466 F.3d at 746; Benton v. Or. Student Assistance Comm’n, 421 F.3d 901, 904–05 (9th Cir. 2005); Friend, 72 F.3d at 1389; McGrath v. Cty. of Nevada, 67 F.3d 248, 252 n.4 (9th Cir. 1994); McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 809 (9th Cir. 1994) (stating no rote recitation of the factors is necessary).  The district court should exclude hours from the fee request that represent work that was “excessive, redundant, or otherwise unnecessary.”  Hensley, 461 U.S. at 434.  The district court may also reduce the lodestar amount in light of the limited success of the plaintiff.  See Farrar v. Hobby, 506 U.S. 103, 114 (1992); Hensley, 461 U.S. at 434–37; Benton, 421 F.3d at 905 (explaining that nominal damages cases are exempted from the general requirements that govern the calculation of attorney’s fees); Dannenberg v. Valadez, 338 F.3d 1070, 1075 (9th Cir. 2003); Friend, 72 F.3d at 1389; Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir. 1995).

“The ‘reasonable hourly rate’ must be determined by reference to the prevailing market rates in the relevant legal community.”  Stewart, 987 F.2d at 1453 (citing Blum, 465 U.S. at 895); see also Carson v. Billings Police Dep’t, 470 F.3d 889, 891–92 (9th Cir. 2006); Bell v. Clackamas Cty., 341 F.3d 858, 868–69 (9th Cir. 2003); Barjon v. Dalton, 132 F.3d 496, 500–02 (9th Cir. 1997).

The party seeking the award bears the burden for documenting the hours spent in preparing the case in a form that will enable the district court to make the relevant determinations.  See Carson, 470 F.3d at 891–92; Stewart, 987 F.2d at 1452–53.  “Where the documentation of the hours is inadequate, the district court may reduce the award accordingly.”  Hensley, 461 U.S. at 433.

The district court must provide some explanation for the amount of attorney’s fees it is awarding.  See Hensley, 461 U.S. at 437; Moreno, 534 F.3d at 1111–16; Tutor-Saliba Corp., 452 F.3d at 1065; Cummings v. Connell, 402 F.3d 936, 947 (9th Cir. 2005); McGrath, 67 F.3d at 253–55.

d.      Awarding Attorney’s Fees to Defendants

“Attorneys’ fees in civil rights cases should only be awarded to a defendant in exceptional circumstances.”  Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990); see also Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1036 (9th Cir. 2005); Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 202 (9th Cir. 1989).  “The mere fact that a defendant prevails does not automatically support an award of fees.  A prevailing civil rights defendant should be awarded attorney’s fees not routinely, not simply because [the defendant] succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless, or vexatious.”  Patton v. Cty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) (citations and internal quotation marks omitted); see also Kentucky v. Graham, 473 U.S. 159, 165 n.9 (1985); Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983); Fabbrini v. City of Dunsmuir, 631 F.3d 1299, 1302 (9th Cir. 2011); Harris v. Maricopa Cty. Superior Court, 631 F.3d 963, 971–72 (9th Cir. 2011); Edgerly v. City & Cty. of San Francisco, 599 F.3d 946, 962 (9th Cir. 2010); Gibson v. Office of Att’y Gen., Cal., 561 F.3d 920, 929 (9th Cir. 2009); Galen v. Cty. of Los Angeles, 477 F.3d 652, 666 (9th Cir. 2007); Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006); Manufactured Home Cmtys. Inc., 420 F.3d at 1036; Thomas v. City of Tacoma, 410 F.3d 644, 647–48 (9th Cir. 2005).  “[A] defendant bears the burden of establishing that the fees for which it is asking are in fact incurred solely by virtue of the need to defend against those frivolous claims.”  Harris, 631 F.3d at 971.

The rule against awarding defendants attorney’s fees applies with special force where the plaintiffs are pro se litigants.  See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (stating rule for pro se prisoners); Miller v. L.A. Cty. Bd. of Educ., 827 F.2d 617, 620 (9th Cir. 1987).

“Where a claim is dismissed for lack of subject matter jurisdiction, the defendant is not a prevailing party within the meaning of § 1988, and the district court accordingly lacks jurisdiction to award attorneys’ fees.”  Elwood v. Drescher, 456 F. 3d 943, 948 (9th Cir. 2006) (concluding that the district court lacked jurisdiction to award attorneys’ fees where dismissal was based on the Rooker-Feldman doctrine and the Younger abstention doctrine); see also Miles v. California, 320 F.3d 986, 988 (9th Cir. 2003).

e.       Awarding Attorney’s Fees to Pro Se Litigants

Pro se litigants are not entitled to an award of attorney’s fees under § 1988.  See Friedman v. Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990), superseded by statute on other groundsGonzalez v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987); cf. Kay v. Ehrler, 499 U.S. 432, 438 (1991) (no award to attorneys representing themselves); Elwood v. Drescher, 456 F.3d 943, 946–48 (9th Cir. 2006) (pro se attorney-defendant).

f.       Immunity and Fee Awards

Attorney’s fees, under § 1988, are not available “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity … unless such action was clearly in excess of such officer’s jurisdiction.”  42 U.S.C. § 1988(b).

g.       Other Work Entitling Attorney to Fees

“Work performed on a motion for fees under § 1988(b) is compensable.”  McGrath v. Cty. of Nevada, 67 F.3d 248, 253 (9th Cir. 1995); see also Harris v. Maricopa Cty. Superior Court, 631 F.3d 963, 979 (9th Cir. 2011).

Work performed after the judgment which is “‘useful’ and of a type ‘ordinarily necessary’ to secure the litigation’s final result” is compensable.  Stewart v. Gates, 987 F.2d 1450, 1452 (9th Cir. 1993) (citation omitted).

A “delay in payment [of fees awarded under § 1988] occasioned by appeal is redressable solely by an award of interest [pursuant to 28 U.S.C. § 1961].”  Corder v. Brown, 25 F.3d 833, 838 (9th Cir. 1994).

3.       Equal Access to Justice Act (28 U.S.C. § 2412)

“28 U.S.C. § 2412(d)(1)(A) provides that a court shall, in a civil proceeding brought against the United States, award fees and other expenses to the prevailing party ‘unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.’”  United States v. Rubin, 97 F.3d 373, 375 (9th Cir. 1996); see also Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008); Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005); United States v. Marolf, 277 F.3d 1156, 1160–61 (9th Cir. 2002); Rueda-Menicucci v. INS, 132 F.3d 493, 494–95 (9th Cir. 1997) (per curiam); Meinhold v. U.S. Dep’t of Def., 123 F.3d 1275, 1277 (9th Cir.), amended by 131 F.3d 842 (9th Cir. 1997) (order); Blaylock Elec. v. NLRB, 121 F.3d 1230, 1233 (9th Cir. 1997).

“The party seeking fees has the burden of establishing its eligibility.”  Love v. Reilly, 924 F.2d 1492, 1494 (9th Cir. 1991).  The government has the burden of proving that its position was substantially justified.  See Scarborough v. Principi, 541 U.S. 401, 414–16 (2004); Meinhold, 123 F.3d at 1277; Rubin, 97 F.3d at 375; Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995); Love, 924 F.2d at 1495.

The government’s position is substantially justified if it has a “reasonable basis both in law and fact.”  Pierce v. Underwood, 487 U.S. 552, 565 (1988); see also Comm’r v. Jean, 496 U.S. 154, 158 n.6 (1990); Le, 529 F.3d at 1201; Free Speech Coal., 408 F.3d at 618; Marolf, 277 F.3d at 1161; Meinhold, 123 F.3d at 1277; Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996); Or. Nat. Res. Council v. Madigan, 980 F.2d 1330, 1331 (9th Cir. 1992).  The government’s position includes both action giving rise to the litigation and the position taken during litigation.  See Marolf, 277 F.3d at 1161; Meinhold, 123 F.3d at 1278 (citing Or. Nat. Res., 980 F.2d at 1331).

The fee should not exceed $125 per hour unless special circumstances exist.  See 28 U.S.C. § 2412(d)(2)(A).  These circumstances include special expertise of counsel, difficulty in obtaining competent counsel, and increases in the cost of living.  See id.; Pierce, 487 U.S. at 571–72; Rueda-Menicucci, 132 F.3d at 496; Love, 924 F.2d at 1496; see also Nat. Res. Def. Council v. Winter, 543 F.3d 1152, 1158–62 (9th Cir. 2008).

Pro se litigants are not entitled to fees under the statute, but they are entitled to expenses.  See Merrell v. J.R. Block, 809 F.2d 639, 642 (9th Cir. 1987).

I.       Costs

Costs may be awarded to the prevailing party under Fed. R. Civ. P. 54(d).  See Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1997).  Costs may also be awarded as a sanction for discovery abuses under Fed. R. Civ. P. 37.  See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1482 (9th Cir. 1992).

The following may be included in an award of costs:

(1) [f]ees of the clerk and marshal; (2) [f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) [f]ees and disbursements for printing and witnesses; (4) [f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) [d]ocket fees under [28 U.S.C. § 1923]; (6) [c]ompensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses and costs of special interpretation services under [28 U.S.C. § 1828].

28 U.S.C. § 1920.

Pro se litigants are entitled “to recover … actual costs reasonably incurred to the extent that an attorney could have received these costs under a [§] 1988 attorney’s fees award.”  Burt v. Hennessey, 929 F.2d 457, 459 (9th Cir. 1991).

In forma pauperis litigants can be ordered to pay the costs of the opposing party.  See Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (per curiam).

For a discussion of disciplinary measures the court may take against pro se, in forma pauperis litigants, see infra II.C.

J.       Relationship to Habeas Corpus Proceedings

“[W]hen a state prisoner is challenging the very fact or duration of [the prisoner’s] physical imprisonment, and the relief [the prisoner] seeks is a determination that [the prisoner] is entitled to immediate release or a speedier release from that imprisonment, [the prisoner’s] sole remedy is a writ of habeas corpus.”  Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that an injunctive relief action to restore the revocation of good-time credits is not cognizable under § 1983); see also Skinner v. Switzer, 562 U.S. 521, 525 (2011); Simpson v. Thomas, 528 F.3d 685, 692–93 (9th Cir. 2008); Ramirez v. Galaza, 334 F.3d 850, 855–56 (9th Cir. 2003); Bogovich v. Sandoval, 189 F.3d 999, 1002–03 (9th Cir. 1999) (applying rule to ADA claim); Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam).  “Where the prisoner’s claim would not ‘necessarily spell speedier release,’ however, suit may be brought under § 1983.”  Skinner, 562 U.S. at 525 (citation omitted) (holding that a postconviction claim for DNA testing is properly pursued in a § 1983 action).

 Moreover, where a § 1983 action seeking damages alleges constitutional violations that would necessarily imply the invalidity of the conviction or sentence, the prisoner must establish that the underlying sentence or conviction has been invalidated on appeal, by a habeas petition, or through some similar proceeding.  See Heck v. Humphrey, 512 U.S. 477, 483–87 (1994).  The Supreme Court later clarified that Heck’s principle (also known as the “favorable termination” rule) applies regardless of the form of remedy sought, if the § 1983 action implicates the validity of an underlying conviction or a prison disciplinary sanction.  See Edwards v. Balisok, 520 U.S. 641, 646–48 (1997) (holding that a claim for monetary and declaratory relief challenging the validity of procedures used to deprive a prisoner of good-time credits is not cognizable under § 1983); see also Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005) (explaining that “a state prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”); Whitaker v. Garcetti, 486 F.3d 572, 583–85 (9th Cir. 2007) (explaining that the “sole dispositive question is whether a plaintiff’s claim, if successful, would imply the invalidity of [the plaintiff’s] conviction.”).

Accordingly, where the § 1983 action would necessarily imply the invalidity of the conviction or sentence, it may not proceed.  See Balisok, 520 U.S. at 646–48 (concluding that § 1983 claim was not cognizable because allegation of procedural defect – a biased hearing officer – would result in an automatic reversal of the prison disciplinary sanction); Heck, 512 U.S. at 483–87 (concluding that § 1983 claim was not cognizable because allegations were akin to malicious prosecution claim which includes as an element that the criminal proceeding was concluded in plaintiff’s favor); Reese v. Cty. of Sacramento, 888 F.3d 1030, 1045–46 (9th Cir. 2018) (explaining that when a plaintiff “who has been convicted of a crime under state law seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence”); Szajer v. City of Los Angeles, 632 F.3d 607, 611–12 (9th Cir. 2011) (concluding that Fourth Amendment unlawful search claim was not cognizable because a finding that there was no probable cause for the search would necessarily imply the invalidity of plaintiffs’ conviction for felony possession of a pistol); McQuillon v. Schwarzenegger, 369 F.3d 1091, 1097–99 (9th Cir. 2004) (concluding that § 1983 claims were not cognizable because they relied on “‘deceit and bias’ on the part of the [parole] decisionmakers, and impl[ied] the invalidity of [the prisoners’] confinement insofar as [the prisoners’] prolonged incarcerations [we]re due to the purported bias of state officials.”); Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (per curiam) (concluding that claims for false arrest and false imprisonment were not cognizable because a finding that there was no probable cause to arrest plaintiff for disturbing the peace would necessarily imply that plaintiff’s conviction for disturbing the peace was invalid); Butterfield v. Bail, 120 F.3d 1023, 1024–25 (9th Cir. 1997) (concluding that § 1983 claim was not cognizable because allegations of procedural defects were clearly an attempt to challenge substantive result in parole hearing); Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997) (affirming dismissal without prejudice of claims relating to disciplinary proceedings where good-time credits were involved); Trimble, 49 F.3d at 585 (concluding that § 1983 claims similar to those in Heck are not cognizable); see also Muhammad v. Close, 540 U.S. 749, 754–55 (2004) (per curiam).

Conversely, where the § 1983 action would not necessarily imply the invalidity of the conviction or sentence, it may proceed.  See Heck, 512 U.S. at 482–83; see also Skinner, 562 U.S. at 533 (determining that success in prisoner’s suit for DNA testing would not necessarily imply the invalidity of his conviction, and thus the § 1983 action could proceed); Wilkinson, 544 U.S. at 82 (concluding that § 1983 claims were cognizable because granting declaratory and injunctive relief that would render invalid state procedures used to deny parole eligibility and suitability would “[not] necessarily spell speedier release[s]”); Wolff v. McDonnell, 418 U.S. 539, 554–55 (1974); Reese, 888 F.3d at 1045–46 (concluding Heck doctrine did not bar § 1983 claim alleging excessive force); Weilburg v. Shapiro, 488 F.3d 1202, 1206–07 (9th Cir. 2007) (concluding that Heck does not bar a § 1983 action for violation of extradition rights because such allegations, if proven, would not invalidate plaintiff’s incarceration); Hooper v. Cty. of San Diego, 629 F.3d 1127, 1132–33 (9th Cir. 2011) (holding that success in § 1983 claim that excessive force was used during arrest would not imply the invalidity of conviction under Cal. Penal Code § 148(a)(1)); Ramirez, 334 F.3d at 858 (holding that “the favorable termination rule does not apply to § 1983 suits challenging a disciplinary hearing or administrative sanction that does not affect the overall length of the prisoner’s confinement.”); Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir. 2001) (concluding that civil rights claim regarding manner of obtaining evidence not barred when evidence not introduced to obtain conviction); Neal, 131 F.3d at 824 (concluding that § 1983 claim was cognizable because challenge was to conditions for parole eligibility, not to any particular parole determination); Woratzeck v. Ariz. Bd. of Exec. Clemency, 117 F.3d 400, 402–03 (9th Cir. 1997) (per curiam) (concluding that § 1983 claim was cognizable because allegations of procedural defects in clemency hearing do not affect the validity of the underlying criminal conviction); see also Hill v. McDonough, 547 U.S. 573, 580 (2006) (concluding that § 1983 claim was cognizable because challenge to particular method of lethal injection would not prevent state from implementing the sentence; consequently, the suit as presented was not a challenge to the fact of the sentence itself); Nelson v. Campbell, 541 U.S. 637, 644–47 (2004) (same).

For example, the prisoner may bring claims for excessive force.  See Reese, 888 F.3d at 1045–46 (concluding § 1983 claim alleging excessive force did not necessarily imply the invalidity of the conviction); Hooper, 629 F.3d at 1132–33 (explaining that § 1983 claim that excessive force was used during arrest would not necessarily imply or demonstrate the invalidity of the conviction); Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (explaining that § 1983 claim was cognizable because allegations of excessive force do not affect validity of the criminal conviction); Smith v. City of Hemet, 394 F.3d 689, 695–99 (9th Cir. 2005) (en banc); Sanford v. Motts, 258 F.3d 1117, 1120 (9th Cir. 2001); compare Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam) (holding that Heck did not bar plaintiff’s excessive force claim because even though plaintiff had been convicted of assaulting his arresting officers, the officers’ alleged excessive force took place after he had been arrested, and thus did not necessarily invalidate his conviction), with Cunningham v. Gates, 312 F.3d 1148, 1154–55 (9th Cir. 2002) (holding that Heck barred plaintiff’s excessive force claim because the jury, in convicting plaintiff of felony-murder, necessarily found that he had intentionally provoked the deadly police response, and therefore a finding of excessive force on the part of the police would have invalidated his conviction).  Heck is not an evidentiary doctrine and may not be used to bar evidence in a § 1983 claim for excessive force.  See Simpson, 528 F.3d at 691–96.

Where the complaint states a habeas claim instead of a § 1983 claim, the court should dismiss the claim without prejudice, rather than converting it to a habeas petition and addressing it on the merits.  See Balisok, 520 U.S. at 649; Heck, 512 U.S. at 487; Blueford, 108 F.3d at 255; Trimble, 49 F.3d at 586.  Where the complaint alleges claims that sound in habeas and claims that do not, the court should allow the non-habeas claims to proceed.  See Ybarra v. Reno Thunderbird Mobile Home Vill., 723 F.2d 675, 681–82 (9th Cir. 1984).

Heck is only triggered once a person has been convicted.  See Wallace v. Kato, 549 U.S. 384, 393 (2007).

Heck applies to civil detainees under California’s Sexually Violent Predators Act.  See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139–40 (9th Cir. 2005) (explaining that, unlike the exhaustion requirement of the PLRA which does not apply to civil detainees, the habeas statute is not textually limited to prisoners).

The fact that a prisoner’s sentence has run is irrelevant to the application of this doctrine.  See Heck, 512 U.S. at 490 n.10; see also Guerrero, 442 F.3d at 704–05; Cunningham, 312 F.3d at 1153 n.3.  But see Spencer v. Kemna, 523 U.S. 1 (1998) (five votes – four concurring and one in dissent – for the opposite proposition); Nonnette v. Small, 316 F.3d 872, 876–77 (9th Cir. 2002) (concluding that a § 1983 action for damages can be maintained, even though success in that action would imply the invalidity of the disciplinary proceedings that caused revocation of a prisoner’s good-time credits, where, after the district court had dismissed the action under Heck, the prisoner was released from incarceration and on parole).

K.      Bivens Actions

Bivens [v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)] established that compensable injury to a constitutionally protected interest [by federal officials] could be vindicated by a suit for damages invoking the general federal-question jurisdiction of the federal courts[.]”  Butz v. Economou, 438 U.S. 478, 486 (1978); see also Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (per curiam) (“In Bivens, this Court recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” (internal quotation marks and citation omitted)); Wilkie v. Robbins, 551 U.S. 537, 549–50 (2007); Carlson v. Green, 446 U.S. 14, 18 (1980); Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018); W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1119 (9th Cir. 2009) (discussing Bivens); cf. Hui v. Castaneda, 559 U.S. 799, 807–11 (2010) (even where a Bivens remedy is generally available, an action under Bivens will be defeated if defendant is immune from suit).  “A Bivens remedy is not available, however, where there are special factors counselling hesitation in the absence of affirmative action by Congress.”  Hernandez, 137 S. Ct. at 2006 (internal quotation marks and citation omitted); see also Rodriguez v. Swartz, 899 F.3d 719, 737 (9th Cir. 2018) (explaining that a Bivens cause of action is not available for every constitutional violation, and discussing cases where Bivens was extended, and cases where Bivens was found not to apply).

“[A] Bivens action will not lie when Congress has created ‘comprehensive procedural and substantive provisions giving meaningful remedies against the United States.’”  Janicki Logging Co. v. Mateer, 42 F.3d 561, 564 (9th Cir. 1994) (quoting Bush v. Lucas, 362 U.S. 367, 368 (1983)); see also Wilkie, 551 U.S. at 550–54; Schweiker v. Chilicky, 487 U.S. 412, 423 (1988); Carlson, 446 U.S. at 18–19; W. Radio Servs. Co., 578 F.3d at 1120; Adams v. Johnson, 355 F.3d 1179, 1183–84 (9th Cir. 2004); Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003); Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1583 (9th Cir. 1996).

Moreover, a Bivens action will not lie against the United States, agencies of the United States, or federal agents in their official capacity.  See FDIC v. Meyer, 510 U.S. 471, 486 (1994); Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007); Morgan v. United States, 323 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996); Cato v. United States, 70 F.3d 1103, 1110 (9th Cir. 1995); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (declining to extend Bivens to confer a right of action for damages against a private corporation operating prison facilities under contract with the federal Bureau of Prisons).

“Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.”  Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (borrowing state personal-injury statute of limitations for Bivens action); see also Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006); cf. Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (order) (applying rule of Heck v. Humphrey, 512 U.S. 477 (1994) to Bivens action); Alexander v. Perrill, 916 F.2d 1392, 1396 (9th Cir. 1990) (stating that failure to perform a duty creates liability under both § 1983 and Bivens); F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1318 (9th Cir. 1989) (stating that immunities are analyzed the same under § 1983 and Bivens).

In Minneci v. Pollard, 565 U.S. 118, 131 (2012), the Court held that a prisoner at a private federal facility could not assert an Eighth Amendment Bivens claim for damages against private prison employees where state law authorized adequate alternative damages actions, reversing the Ninth Circuit’s decision in Pollard v. The Geo Grp., Inc., 607 F.3d 584 (concluding that a federal prisoner could recover for violations of his constitutional rights by employees of private corporations operating federal prisons), amended by 629 F.3d 843, 852–68 (9th Cir. 2010).

 

II.      PROCEDURAL ISSUES CONCERNING PRO SE COMPLAINTS

This section summarizes the rules for processing prisoner pro se complaints.  This section also discusses how the Prison Litigation Reform Act (the “PLRA”) has changed those rules.  For further discussion of the PLRA, see infra IV.

A.      General Considerations

1.       Pleadings

a.       Liberal Construction

“The Supreme Court has instructed the federal courts to liberally construe the inartful pleading of pro se litigants.  It is settled that the allegations of [a pro se litigant’s complaint] however inartfully pleaded are held to less stringent standards than formal pleadings drafted by lawyers.”  Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citation and internal quotation marks omitted; brackets in original); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Woods v. Carey, 525 F.3d 886, 889–90 (9th Cir. 2008); Johnson v. California, 207 F.3d 650, 653 (9th Cir. 2000) (per curiam); Frost v. Symington, 197 F.3d 348, 352 (9th Cir. 1999).

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleading is entitled to relief.”  Before 2007, in determining the sufficiency of a pleading, courts applied a liberal rule annunciated in Conley v. Gibson, 355 U.S. 41, 45–46 (1957) that a complaint should not be dismissed unless it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  See Haines v. Kerner, 404 U.S. 519, 521 (1972) (citing Conley v. Gibson, 355 U.S. 41, 45–46 (1957)).

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the  Supreme Court established a more demanding pleading standard.  In Twombly, the Supreme Court held that a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.”   Twombly, 550 U.S. at 570.  In Iqbal, the Supreme Court held that “bare assertions” that “amount to nothing more than a formulaic recitation of the elements of a [ ] claim” are not entitled to “presumption of truth,” and that the district court, after disregarding “bare assertions” and conclusions, must “consider the factual allegations in [a] complaint to determine if they plausibly suggest an entitlement to relief” as opposed to a claim that is merely “conceivable.”  Iqbal, 556 U.S. 679–80.

Although the standard for stating a claim became stricter after Twombly and Iqbal, the filings and motions of pro se inmates continue to be construed liberally.  See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (as amended) (explaining that Twombly and Iqbal “did not alter the courts’ treatment of pro se filings,” and stating, “[w]hile the standard is higher [under Iqbal], our obligation remains, where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” (internal citation omitted)); Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (differentiating between the procedural burden place on ordinary pro se litigants and the procedural burden placed on pro se inmates, and explaining that courts should construe liberally the filings and motions of a pro se inmate in a civil suit, and avoid applying summary judgment rules strictly); cf. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (stating pro se complaints are construed liberally and “may only be dismissed 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,” which is a pre-Twombly pleading standard); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (stating that pro se complaints could be dismissed for failure to state a claim only “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,” which is a pre-Twombly notice pleading standard).

The rule of liberal construction is “particularly important in civil rights cases.”  Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); see also Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (“Courts in this circuit have an obligation to give a liberal construction to the filings of pro se litigants, especially when they are civil rights claims by inmates.”); Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012) (pro se state prisoner); Johnson, 207 F.3d at 653 (pro se state inmate).

Liberal construction means that pro se litigants are “relieved from the strict application of procedural rules and demands that courts not hold missing or inaccurate legal terminology or muddled draftsmanship against them.”  Blaisdell, 729 F.3d at 1241.  However, liberal construction does not mean that the court is required to supply essential elements of the claim that were not initially pled.  See Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011) (citing Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (per curiam)) (pretrial detainee).

b.      Exceptions

(1)     Pleading Requirements

“Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”  Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982); see also Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (Bivens action); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (per curiam).

Where a plaintiff alleges a private party conspired with state officers, the complaint must contain more than conclusory allegations.  See Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (conclusory allegations insufficient to consider a private party a state actor for purposes of § 1983); Price v. Hawaii, 939 F.2d 702, 707–09 (9th Cir. 1991) (same); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1979) (per curiam).  For further discussion, see supra I.A.2.b.(5)).

However, “[t]he Twombly plausibility standard … does not prevent a plaintiff from pleading facts alleged upon information and belief where the facts are peculiarly within the possession and control of the defendant or where the belief is based on factual information that makes the inference of culpability plausible.”  See Soo Park v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017) (citation omitted) (discussing sufficiency of pleading civil conspiracy under § 1983, in § 1983 action brought by a defendant in a murder trial).

In Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167 (1993), the Supreme Court left open the question whether the Court’s “qualified immunity jurisprudence would require a heightened pleading standard in cases involving individual government officials.”  After Leatherman, the Supreme Court concluded that a heightened pleading standard does not apply to constitutional claims brought against individual defendants in which improper motive is a necessary element.  See Crawford-El v. Britton, 523 U.S. 574, 594–97 (1998); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512–15 (2002) (declining to impose a heightened pleading standard in employment discrimination case, explaining that “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions [such as actions brought under Rule 9(b)].”).

The Ninth Circuit has also held that a heightened pleading standard does not apply to constitutional claims brought against individual defendants in which improper motive is a necessary element.  See Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1123–26 (9th Cir. 2002) (overruling Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) (“Branch II”), Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991) (“Branch I”), and their progeny because they imposed a heightened pleading standard); see also Empress LLC v. City of San Francisco, 419 F.3d 1052, 1055–56 (9th Cir. 2005) (explaining that “the logical conclusion of LeathermanCrawford-El, and Swierkiewicz dictates that a heightened pleading standard should only be applied when the Federal Rules of Civil Procedure so require.”); Miranda v. Clark Cty., Nev., 319 F.3d 465, 470 (9th Cir. 2003) (en banc) (same).  However, after Twombly and Iqbal, a “bald allegation of impermissible motive,” would not be sufficient.  Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) (discussing Twombly and Iqbal).  The factual content contained within the complaint must allow a reasonable inference of an improper motive to satisfy Twombly and Iqbal.  See Moss, 572 F.3d at 972.

There is also no heightened pleading standard with respect to the “policy or custom” requirement of demonstrating municipal liability.  See Leatherman, 507 U.S. at 167–68; see also Empress LLC, 419 F.3d at 1055; Galbraith, 307 F.3d at 1124; Lee v. City of Los Angeles, 250 F.3d 668, 679–80 (9th Cir. 2001); Evans v. McKay, 869 F.2d 1341, 1349 (9th Cir. 1989).

Prior to Twombly and Iqbal, this court held that “a claim of municipal liability under [§] 1983 is sufficient to withstand a motion to dismiss ‘even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice.’”  Karim-Panahi v. L.A. Police Dep’t., 839 F.2d 621, 624 (9th Cir. 1988) (quoting Shah v. Cty. of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)); see also Evans, 869 F.2d at 1349; Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 610 (9th Cir. 1986) (“[I]t is enough if the custom or policy can be inferred from the allegations of the complaint.”).  After Twombly and Iqbal, the court in Starr v. Baca, 652 F.3d 1202, 1212–16 (9th Cir. 2011), identified and addressed conflicts in the Supreme Court’s jurisprudence on the pleading requirements applicable to civil actions.  The court held that whatever the differences between the Supreme Court cases, there were two principles common to all:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).  In AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012), this court held that the Starr standard applied to pleading policy or custom for claims against municipal entities.

For a discussion of the pleading requirement with respect to the “policy or custom” requirement for establishing municipal liability, see supra I.A.1.c.(2)(d); for a discussion of the pleading requirement with respect to qualified immunity defenses, see supra I.D.2.b.

(2)     Procedural Rules

Although the court must construe pleadings liberally, “[p]ro se litigants must follow the same rules of procedure that govern other litigants.”  King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012); see also Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (per curiam); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per curiam); see also Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (“[The liberal construction of pro se pleadings] rule relieves pro se litigants from the strict application of procedural rules and demands that courts not hold missing or inaccurate legal terminology or muddled draftsmanship against them.” (emphasis added)).

The courts, however, have “a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements.”  Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (rules on appeal); see also Solis v. Cty. of Los Angeles, 514 F.3d 946, 957 n.12 (9th Cir. 2008) (construing demand for jury trial in motion for counsel as a continuing demand even though not in a separate filing because plaintiff was pro se); Waters v. Young, 100 F.3d 1437, 1441 (9th Cir. 1996) (“[T]his court has long sought to ensure that pro se litigants do not unwittingly fall victim to procedural requirements that they may, with some assistance from the court, be able to satisfy.”); Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984).

2.       Time Limits

“‘[S]trict time limits … ought not to be insisted upon’ where restraints resulting from a pro se prisoner plaintiff’s incarceration prevent timely compliance with court deadlines.”  Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (quoting Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967)); see also McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).

With respect to the timeliness of a notice of appeal filed by a prisoner pro se litigant, the notice is deemed filed on the date the prisoner “delivered the notice to prison authorities for forwarding to the [d]istrict [c]ourt.”  Houston v. Lack, 487 U.S. 266, 270 (1988); see also Douglas v. Noelle, 567 F.3d 1103, 1106 (9th Cir. 2009); Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 (2005); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Koch v. Ricketts, 68 F.3d 1191, 1192 (9th Cir. 1995).  This is also known as the “prison mailbox rule.”

Fed. R. App. P. 4(c) codifies the Houston v. Lack rule as it applies to notices of appeal.  See Koch, 68 F.3d at 1193.

The Houston v. Lack rule has been applied to pleadings in addition to notices of appeal.  See Douglas, 567 F.3d at 1106–07; James v. Madison St. Jail, 122 F.3d 27, 28 (9th Cir. 1997) (per curiam) (applying rule to filing of trust account statements as required by 28 U.S.C. § 1915(a)(2)); Schroeder v. McDonald, 55 F.3d 454, 459 (9th Cir. 1995) (applying rule to filing of motion for reconsideration); Caldwell v. Amend, 30 F.3d 1199, 1201 (9th Cir. 1994) (applying rule to deadline for filing a motion under Fed. R. Civ. P. 50(b)); Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir. 1993) (applying rule to timely completion of service), disapproved on other grounds by McDowell v. Calderon, 197 F.3d 1253 (9th Cir. 1999).  But see Nigro v. Sullivan, 40 F.3d 990, 994–95 (9th Cir. 1994) (refusing to apply rule to deadlines for administrative remedies applicable to federal prisons); see also Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014) (discussing circumstances in which courts refused to apply the prison mailbox rule).

The Ninth Circuit has held that the Houston v. Lack rule applies whenever the prisoner has utilized an internal prison mail system and the record allows the court to determine the date on which the filing was turned over to prison authorities.  See Caldwell, 30 F.3d at 1202; see also Douglas, 567 F.3d at 1108–09.  “When a pro se prisoner alleges that he [or she] timely complied with a procedural deadline by submitting a document to prison authorities, the district court must either accept that allegation as correct or make a factual finding to the contrary upon a sufficient evidentiary showing by the opposing party.”  See Faile, 988 F.2d at 989.  Where the prisoner submits an affidavit as to the date the documents were submitted to prison authorities, the burden “shifts to the opposing party … [to] produc[e] evidence in support of a contrary factual finding.”  Caldwell, 30 F.3d at 1203; see Koch, 68 F.3d at 1194; see also Fed. R. App. P. 4(c) (stating that a “[t]imely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.”).

3.       Representing Others

Pro se litigants have no authority to represent anyone other than themselves.  See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (non-attorney plaintiff may not attempt to pursue claim on behalf of others in a representative capacity); Johns v. Cty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (parent or guardian cannot bring suit on behalf of minor child); Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995) (non-attorney party may not represent other plaintiffs); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697–98 (9th Cir. 1987) (trustee cannot represent trust); McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (non-attorney party may not represent other plaintiffs).

4.       Competency Hearings

Fed. R. Civ. P. 17(c) states that “[t]he 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.” “The purpose of Rule 17(c) is to protect an incompetent person’s interests in prosecuting or defending a lawsuit.” Davis v. Walker, 745 F.3d 1303, 1310 (9th Cir. 2014).

Where there is a substantial question regarding the mental competence of a party proceeding pro se, the court should conduct a hearing to determine whether a guardian or attorney should be appointed under Rule 17(c).  See Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989); see also Allen v. Calderon, 408 F.3d 1150, 1153–54 (9th Cir. 2005) (holding that dismissal of inmate’s habeas petition for failure to prosecute without first conducting a competency hearing was an abuse of discretion, and explaining that counsel could be appointed for limited purpose of representing petitioner at competency hearing).  If the litigant refuses to participate in the hearing, the district court may dismiss the case or may appoint an attorney to assist the litigant.  See Krain, 880 F.2d at 1121.

5.       Presence at Hearings

A pro se prisoner who is currently incarcerated has no right to appear at hearings.  See Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir 1989); Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1986); see also 42 U.S.C. § 1997e(f)(1) (requiring, to the extent practicable, that a prisoner’s participation be secured through telecommunications technology instead of through extraction from the prison).

B.      Processing and Resolving Cases

1.       Applications for In Forma Pauperis Status

“[C]ourt permission to proceed in forma pauperis is itself a matter of privilege and not right.”  Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); see also Andrews v. King, 398 F.3d 1113, 1123 (9th Cir. 2005); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).  The Ninth Circuit reviews for abuse of discretion a district court’s denial of in forma pauperis status.  See O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990).  See also Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015) (abuse of discretion to consider spouse’s income without making specific findings about litigant’s access to income).

a.       Application Requirements (28 U.S.C. § 1915(a))

A person may be granted permission to proceed in forma pauperis if the person “submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees or give security therefor.  Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.”  28 U.S.C. § 1915(a)(1).

Prisoners seeking in forma pauperis status must also “submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.”  28 U.S.C. § 1915(a)(2).

b.      Evaluation of Application

“‘[T]he supporting affidavits [must] state the facts as to affiant’s poverty with some particularity, definiteness, and certainty.’”  United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (per curiam) (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)).  “An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life.”  Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015).  The litigant need not “be absolutely destitute to enjoy the benefit of the statute.”  Adkins v. E.I. du Pont De Nemours & Co., 335 U.S. 331, 339 (1948).  “[W]here the affidavits are written in the language of the statute it would seem that they should ordinarily be accepted, for trial purposes, particularly where unquestioned and where the judge does not perceive a flagrant misrepresentation.”  Id.  If, however, the district court determines that the allegation of poverty is false, the case should be dismissed.  See 28 U.S.C. § 1915(e)(2)(A).

Although the Ninth Circuit has stated that the decision to grant or deny in forma pauperis status should be “based on the plaintiff’s financial resources alone” with a later independent determination as to whether the complaint should be dismissed as frivolous, see Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984); Brown v. Schneckloth, 421 F.2d 1402, 1403 (9th Cir. 1970) (per curiam); Stiltner v. Rhay, 322 F.2d 314, 317 (9th Cir. 1963), the Prison Litigation Reform Act permits the district court to make the frivolousness determination before granting in forma pauperis status, see 28 U.S.C. § 1915A; see also O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965); Reece v. Washington, 310 F.2d 139, 140 (9th Cir. 1962) (per curiam).  For a discussion of this provision, see infra II.B.2, and IV.C.

c.       Payment of Fee (28 U.S.C. § 1915(b)–(c))

A prisoner proceeding in forma pauperis is “required to pay the full amount of a filing fee.”  28 U.S.C. § 1915(b)(1).

The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of – (A) the average monthly deposits to the prisoner’s account; or (B) the average monthly balance in the prisoner’s account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

Id.  After paying the initial partial filing fee, the prisoner is required to make “monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account.  The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.”  28 U.S.C. § 1915(b)(2); see also Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (“[P]risoners proceeding [in forma pauperis] must pay the filing fee as funds become available in their prison accounts.”).  See also Bruce v. Samuels, 136 S. Ct. 627, 629 (2016).  “[T]he initial partial filing fee is to be assessed on a per-case basis, i.e., each time the prisoner files a lawsuit.”  Bruce, 136 S. Ct. at 629.  Additionally, “monthly installment payments, like the initial partial payment, are to be assessed on a per-case basis.” Id.

“In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”  28 U.S.C. § 1915(b)(4); Bruce, 136 S. Ct. at 629; Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002).

These provisions have been upheld in light of constitutional challenge.  See Taylor, 281 F.3d at 849–50.

For further discussion of these provisions, see infra IV.B.

d.      Prior Litigation History (28 U.S.C. § 1915(g))

The PLRA provides:

[No prisoner shall] bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] 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.

28 U.S.C. § 1915(g).

When counting strikes, the Ninth Circuit includes qualifying dismissals entered prior to the enactment of the PLRA.  See Tierney v. Kupers, 128 F.3d 1310, 1311–12 (9th Cir. 1997).  Both qualifying actions and appeals should be counted as strikes.  See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999).  Prior dismissals “qualify as strikes only if, after reviewing the orders dismissing those actions and other relevant information, the district court determine[s] that they had been dismissed because they were frivolous, malicious or failed to state a claim.”  Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (remanding to the district court to determine on what basis the prior cases were dismissed).

The Ninth Circuit has upheld this provision against a number of  constitutional challenges.  See Andrews, 398 F.3d at 1123; Rodriguez, 169 F.3d at 1178–82; Tierney, 128 F.3d at 1311–12.

For further discussion of this provision, see infra IV.D.

e.       Accompanying Rights

(1)     Service of Process (28 U.S.C. § 1915(d))

          [A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, and, having provided the necessary information to help effectuate service, plaintiff should not be penalized by having his or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the duties required of each of them under 28 U.S.C. § 1915[(d)] and [Fed. R. Civ. P. 4(c)(3)].

Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990); see also 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); Terrell v. Brewer, 935 F.2d 1015, 1018 n.4 (9th Cir. 1991).

For this rule to apply, the prisoner must (1) “request that the marshal serve [the] complaint,” Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991), and (2) “furnish[ ] the information necessary to identify the defendant,” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).  Where the prisoner has met these conditions, the reliance on the marshals to effect service is “good cause” within the meaning of Fed. R. Civ. P. 4(m).  See Walker, 14 F.3d at 1422.

(2)     Appointment of Counsel (28 U.S.C. § 1915(e)(1))

“The court may request an attorney to represent any person unable to afford counsel.”  28 U.S.C. § 1915(e)(1).  Federal courts do not, however, have the authority “to make coercive appointments of counsel.”  Mallard v. U.S. Dist. Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (forfeiture proceedings).

“The court may appoint counsel … only under ‘exceptional circumstances.’”  Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (Bivens action); see also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action); Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (Bivens action); Burns v. Cty. of King, 883 F.2d 819, 824 (9th Cir. 1989) (per curiam) (§ 1983 action); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984) (§ 1983 action).  “A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the issues involved.  Neither of these factors is dispositive and both must be viewed together before reaching a decision.”  Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (§ 1983 action)); see also Palmer, 560 F.3d at 970; $292,888.04 in U.S. Currency, 54 F.3d at 569; Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 1990) (§ 1983 claims).  Appointment of counsel may be justified when proceedings will go forward “more efficiently and effectively.”  Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) (per curiam).

The Ninth Circuit reviews for abuse of discretion a district court’s decision whether to appoint counsel under § 1915.  See Palmer, 560 F.3d at 970 (concluding no abuse of discretion in denying request for appointment of counsel); Terrell, 935 F.2d at 1017.  It is an abuse of discretion to grant defendant’s motion to dismiss or motion for summary judgment prior to ruling on plaintiff’s motion for appointment of counsel.  See Miles v. Dep’t of Army, 881 F.2d 777, 784 (9th Cir. 1989) (dismissal); McElyea v. Babbitt, 833 F.2d 196, 199 (9th Cir. 1987) (summary judgment).  Where, however, the motion to dismiss is based on failure to prosecute the action, it may be decided prior to ruling on the motion to appoint counsel because counsel cannot correct the error.  See Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824–25 (9th Cir. 1991).

2.       Screening of Complaints (28 U.S.C. § 1915A)

“The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”  28 U.S.C. § 1915A(a).  “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint – (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.”  Id. § 1915A(b).  For further discussion of this provision, see infra IV.C.

3.       Frivolousness (28 U.S.C. § 1915(e)(2)(B)(i))

a.       Sua Sponte Dismissal

The Prison Litigation Reform Act (the “PLRA”) states that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal is frivolous or malicious.”  28 U.S.C. § 1915(e)(2)(B)(i); see also 28 U.S.C. § 1915A(b)(1); 42 U.S.C. § 1997e(c)(1).

The Ninth Circuit has concluded that this provision applies to all appeals pending on or after the enactment of the PLRA.  See Anderson v. Angelone, 123 F.3d 1197, 1199 (9th Cir. 1997); Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996) (per curiam).  This provision is “not limited to prisoners.”  See Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam).  For further discussion of this provision, see infra IV.C.

b.      Standard

“[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact. … [The] term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.”  Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (order) (prisoner Bivens action); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (non-prisoner § 1983 action); Lopez v. Dep’t of Health Servs., 939 F.2d 881, 882 (9th Cir. 1991) (per curiam) (prisoner § 1983 action).

Where “there is no controlling authority requiring a holding that the facts as alleged fail to establish even an arguable claim as a matter of law,” the complaint cannot be dismissed as legally frivolous.  Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1990) (per curiam) (citing Pratt v. Sumner, 807 F.2d 817, 820 (9th Cir. 1987)); see also Iasu v. Smith, 511 F.3d 881, 892 (9th Cir. 2007).

When determining whether a complaint is frivolous, the court need not accept the allegations as true, but must “pierce the veil of the complaint’s factual allegations,” Neitzke, 490 U.S. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or] ‘delusional,’” Denton v. Hernandez, 504 U.S. 25, 33 (1992) (quoting Neitzke, 490 U.S. at 328).  A complaint may not, however, be dismissed as frivolous merely because the allegations are unlikely.  See Denton, 504 U.S. at 33.

A complaint may be dismissed as frivolous where a defense is obvious on the face of the complaint, but the court may not anticipate defenses.  See Franklin v. Murphy, 745 F.2d 1221, 1228–29 (9th Cir. 1984).

A complaint may be dismissed as frivolous if it “merely repeats pending or previously litigated claims.” Cato, 70 F.3d at 1105 n.2 (citations and internal quotation marks omitted).

There is “an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”  Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018) (section 1915A dismissal).

c.       Leave to Amend

In the Ninth Circuit, “[p]ro se plaintiffs proceeding [in forma pauperis] must … be given an opportunity to amend their complaint [prior to dismissal] unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”  Franklin v. Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984) (citation and internal quotation marks omitted); see also Rodriguez v. Steck, 795 F.3d 1187, 1188 (9th Cir. 2015) (order); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” (internal quotation marks and citation omitted)); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); Rizzo v. Dawson, 778 F.2d 527, 529–30 (9th Cir. 1985); cf. Denton v. Hernandez, 504 U.S. 25, 34 (1992) (suggesting that if the complaint’s deficiencies could be remedied by amendment, then it may be abuse of discretion to dismiss complaint without granting leave to amend).  The plaintiff must also be given some notice of the complaint’s deficiencies prior to dismissal.  See Cato, 70 F.3d at 1106; cf. Denton, 504 U.S. at 34 (declining to address the Ninth Circuit’s notice and leave-to-amend rule for frivolous complaints).

For further discussion of the leave-to-amend doctrine with respect to dismissals for failure to state a claim, see infra II.B.4.d.

d.      Review on Appeal

The appellate court reviews for abuse of discretion a lower court’s dismissal of a complaint as frivolous.  See Denton v. Hernandez, 504 U.S. 25, 33 (1992) (prisoner § 1983 action); Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (order) (prisoner Bivens action); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (non-prisoner § 1983 action); Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir. 1995) (per curiam) (prisoner § 1983 action).

4.       Failure to State a Claim (28 U.S.C. § 1915(e)(2)(B)(ii))

a.       Sua Sponte Dismissal

The PLRA states that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim on which relief may be granted.”  28 U.S.C. § 1915(e)(2)(B)(ii); see also 28 U.S.C. § 1915A(b)(1); 42 U.S.C. § 1997e(c)(1); cf. Fed. R. Civ. P. 12(b)(6) (defendant may raise as a defense plaintiff’s “failure to state a claim”).  The Ninth Circuit has concluded that this provision applies to all appeals pending on or after the enactment of the PLRA.  See Anderson v. Angelone, 123 F.3d 1197, 1199 (9th Cir. 1997); Marks v. Solcum, 98 F.3d 494, 495–96 (9th Cir. 1996) (per curiam); see also Franklin v. Oregon, 662 F.2d 1337, 1340–41 (9th Cir. 1981) (discussing procedural requirements for sua sponte dismissal for failure to state a claim).  This provision is “not limited to prisoners.”  Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam).  For further discussion of the meaning of the provision, see infra IV.C.

b.      Standard

“The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”  Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).  “In determining whether a complaint states a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff.”  Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam); see also Estelle v. Gamble, 429 U.S. 97, 99 (1976).  “Dismissal is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief.” Watison, 668 F.3d at 1112. There is “an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”  Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018) (section 1915A dismissal); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (motion to dismiss).

c.       Materials to be Considered

When resolving a motion to dismiss for failure to state a claim, a district court may not consider materials outside the complaint and the pleadings.  See Gumataotao v. Dir. of Dep’t of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001); Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998).

The court may, however, consider materials properly submitted as part of the complaint, see Gumataotao, 236 F.3d at 1083; Cooper, 137 F.3d at 622–23, as well as “document[s] the authenticity of which [are] not contested, and upon which the plaintiff’s complaint necessarily relies,” even if they are not attached to the complaint, Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006); see also Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); Dunn v. Castro, 621 F.3d 1196, 1204 n.6 (9th Cir. 2010); Dent v. Cox Commc’ns Las Vegas, Inc., 502 F.3d 1141, 1143 (9th Cir. 2007); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).

The court may also review “materials of which the court may take judicial notice.”  Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); see also Akhtar, 698 F.3d at 1212; United States v. 14.02 Acres of Land More or Less in Fresno Cty., 547 F.3d 943, 955 (9th Cir. 2008); Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007); Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995); Gemtel Corp. v. Cmty. Redevelopment Agency, 23 F.3d 1542, 1544 n.1 (9th Cir. 1994).  This includes “[r]ecords and reports of administrative bodies,” Barron, 13 F.3d at 1377, but appears not to include prison regulations, see Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).

For discussion of how consideration of matters outside the pleadings converts a motion to dismiss into a motion for summary judgment, see infra II.B.5.e.

d.      Leave to Amend

“Unless it is absolutely clear that no amendment can cure the defect … , a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.”  Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also  Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc); Walker v. Beard, 789 F.3d 1125, 1139 (9th Cir. 2015); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“[B]efore dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively.” (citation and internal quotation marks omitted)); Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1196 (9th Cir. 1998); Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623–24 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1135–36 (9th Cir. 1987).

“While [the] statement of deficiencies need not provide great detail or require district courts to act as legal advisors to pro se plaintiffs, district courts must at least draft a few sentences explaining the [complaint’s] deficiencies.”  Eldridge, 832 F.2d at 1136; see also Karim-Panahi, 839 F.2d at 625.

e.       Effect of Amendment

The court held in Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012), that “[f]or claims dismissed with prejudice and without leave to amend, [it is] not require[d] that they be repled in a subsequent amended complaint to preserve them for appeal.  But for any claims voluntarily dismissed, … those claims [will be considered] to be waived if not repled.”  Id. (overruling prior cases that held a plaintiff waives all claims alleged in a dismissed complaint which are not repled in an amended complaint).

f.       Review on Appeal

The Ninth Circuit reviews de novo the district court’s dismissal of a complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).  See Fayer v. Vaughn, 649 F.3d 1061 (9th Cir. 2011) (per curiam) (arrestee § 1983 claim); Starr v. Baca,  652 F.3d 1202, 1205 (9th Cir. 2011) (prisoner §1983 claim); Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001) (prisoner § 1983 claim); Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001) (non-prisoner § 1983 claim); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (prisoner § 1983 claim).  The Ninth Circuit also reviews de novo the district court’s dismissal of a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).  See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order).  The same standard is applied to dismissals for failure to state a claim under 28 U.S.C. § 1915A.  See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 640 (9th Cir. 2018) (per curiam); Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014); Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).  Note, there is “an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” Byrd, 885 F.3d at 642.

5.       Summary Judgment (Fed. R. Civ. P. 56)

a.       Sua Sponte Entry of Summary Judgment

The district court may sua sponte enter summary judgment if the parties are given notice of the district court’s intention to do so and are given an opportunity to develop a factual record.  See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Oluwa v. Gomez, 133 F.3d 1237, 1238–39 (9th Cir. 1998); O’Keefe v. Van Boening, 82 F.3d 322, 324 (9th Cir. 1996); see also Norse v. City of Santa Cruz, 629 F.3d 966, 971–73 (9th Cir. 2010) (en banc) (recognizing that district court has authority to enter summary judgment sua sponte, but concluding that district court erred by granting summary judgment sua sponte without providing adequate notice and opportunity to be heard, and without ruling on evidentiary objections).  “Before sua sponte summary judgment against a party is proper, that party must be given reasonable notice that the sufficiency of his or her claim will be in issue: Reasonable notice implies adequate time to develop the facts on which the litigant will depend to oppose summary judgment.” Albino v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014) (en banc) (directing sua sponte that summary judgment be granted to Albino on the issue of exhaustion).

For the general rule concerning notice that must be provided to pro se prisoner litigants prior to entry of summary judgment, see infra II.B.5.c.

b.      Standard

When considering a motion for summary judgment, the district court’s role is not to weigh the evidence, but merely to determine whether there is a genuine issue for trial.  See Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017); May v. Baldwin, 109 F.3d 557, 560 (9th Cir. 1997).  Summary judgment is appropriate if, after viewing the evidence in the light most favorable to the party opposing the motion, the court determines that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.  See Fed. R. Civ. P. 56; Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (in reviewing district court’s grant of summary judgment the court determines “whether, viewing the evidence in the light most favorable to the non-moving party, there are genuine issues of material fact and whether the district court correctly applied the relevant substantive law”); Vander v. U.S. Dep’t of Justice, 268 F.3d 661, 663 (9th Cir. 2001); Morrison v. Hall, 261 F.3d 896, 900 (9th Cir. 2001); May, 109 F.3d at 560; Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993).

“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.”  Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Anderson, 477 U.S. at 256; Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010); Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989).

“A party opposing a properly supported motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial.”  Harper, 877 F.2d at 731.  To establish the existence of a genuine issue of material fact, the non-moving party must make an adequate showing as to each element of the claim on which the non-moving party will bear the burden of proof at trial.  See Celotex Corp., 477 U.S. at 322–23; see also Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Harper, 877 F.2d at 731.  The opposing party may not rest on conclusory allegations or mere assertions, see Taylor, 880 F.2d at 1045; Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988); Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986), but must come forward with significant probative evidence, see Anderson, 477 U.S. at 249–50; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984).  The evidence set forth by the non-moving party must be sufficient, taking the record as a whole, to allow a rational jury to find for the non-moving party.  See Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Zetwick, 850 F.3d at 441; Taylor, 880 F.2d at 1045Taylor, 880 F.2d at 1045.  Where “the factual context renders [the nonmoving party’s] claim implausible … , [that party] must come forward with more persuasive evidence to support [its] claim than would otherwise be necessary” to show that there is a genuine issue for trial.  Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Tanner v. Heise, 879 F.2d 572, 577 (9th Cir. 1989); Harper, 877 F.2d at 731.

The materiality of facts is determined by looking to the substantive law that defines the elements of the claim.  See Anderson, 477 U.S. at 248; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996) (as amended); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987).

c.       Informing Pro Se Litigants about Summary Judgment Requirements

Prisoner litigants proceeding pro se must be informed of the requirements of Fed. R. Civ. P. 56 and the consequences for failing to meet those requirements prior to granting summary judgment.  See Rand v. Rowland, 154 F.3d 952, 955–56 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988).  The notice requirement “effectuates the purpose of the Federal Rules to eliminate procedural booby traps which could prevent unsophisticated litigants from ever having their day in court.” Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013).  Either the district court or the summary judgment movant can provide the notice.  See Rand, 154 F.3d at 959–60.  In addition to providing this warning when there is a pending summary judgment motion, pro se litigants must be provided with additional notice of their obligations when any procedural event “undermine[s] th[e] earlier notice.”  Wyatt v. Terhune, 315 F.3d 1108, 1115 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014); see also Marella v. Terhune, 568 F.3d 1024, 1028 (9th Cir. 2009) (per curiam) (concluding second Rand notice was required following order requesting supplemental briefing).  In Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012), the court held “that Rand and Wyatt notices must be served concurrently with motions to dismiss and motions for summary judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of what is required of them in order to oppose those motions.”  See also Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1159 (9th Cir. 2013) (per curiam) (explaining “[t]he Rand notice must issue so that the litigant will receive the motion and the notice reasonably contemporaneously” and holding that although there was a delay in sending the Rand notice, it was harmless error).

If the district court will consider material beyond the pleadings when ruling on a defendant’s motion to dismiss for failure to exhaust administrative remedies, the pro se prisoner must receive notice similar to the notice describe in Rand.  See Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012).  The court has explained:

The notice must explain that: the motion to dismiss for failure to exhaust administrative remedies is similar to a motion for a summary judgment in that the district court will consider materials beyond the pleadings; the plaintiff has a “right to file counter-affidavits or other responsive evidentiary materials”; and the effect of losing the motion. See Rand, 154 F.3d at 960. The notice “must be phrased in ordinary, understandable language calculated to apprise an unsophisticated prisoner of his or her rights and obligations” under Rule 12. See id.

Stratton, 697 F.3d at 1008.  See also Akhtar v. Mesa, 698 F.3d 1202, 1214 (9th Cir. 2012) (recognizing that Rand notice requirements have been extended to motions to dismiss for failure to exhaust administrative remedies and holding district court erred in failing to provide Akhtar with the notice pursuant to Rand at the time Appellees filed their motion to dismiss).

The Ninth Circuit has published a model notice which will meet this requirement.  See Rand, 154 F.3d at 962–63.[1]  The notice must, however, be tailored to the precise procedural circumstances of the at-issue litigation.  See Wyatt, 315 F.3d at 1114–15, overruled on other grounds by Albino, 747 F.3d 1162.  This notice must (1) “be phrased in ordinary, understandable language calculated to apprise an unsophisticated prisoner of his or her rights and obligations under Rule 56,” Rand, 154 F.3d at 960; (2) inform the prisoner “of his or her right to file counter-affidavits or other responsive evidentiary materials,” id.; (3) alert the prisoner that failure to provide affidavits or evidence may result in the entry of summary judgment, see id. at 960–61; (4) explain that entry of summary judgment will result in the termination of the case, see id. at 960; and (5) include a statement of any special requirements imposed by local rules, see id. at 961.  In addition, when the notice is provided by the summary judgment movant instead of the district court, the notice must (1) be in a document filed separately from “the summary judgment motion or … the papers ordinarily filed in support of the motion,” id. at 960; and (2) “indicate that [the notice] is required to be given by the court,” id. at 961.  See also Solis v. Cty. of Los Angeles, 514 F.3d 946, 952 (9th Cir. 2008).

Although recognizing that such circumstances would only be present in “unusual” cases, the Ninth Circuit has stated that it would not reverse a grant of summary judgment due to failure to provide this notice where failure to do so was harmless error.  See Rand, 154 F.3d at 961–62; see also Labatad, 714 F.3d at 1159; Solis, 514 F.3d at 953.  For example, “judicial notice by the district court of its own records … may disclose that the plaintiff had recently been served with [the required] notice in prior litigation” or “an objective examination of the record [by the appellate court] may disclose that the pro se prisoner litigant has a complete understanding of Rule 56’s requirements gained from some other source.”  Rand, 154 F.3d at 961–62.  Labatad v. Corrections Corporation of America, is an example of the unusual case in which the record demonstrated the harmlessness of the failure to give the required notice.  714 F.3d at 1159.  In Labatad, the court held that where the Rand notice was not sent until approximately a month after the defendants filed their motion and a day after Labatad filed his response, the error was harmless.  See id. at 1159–60.  Labatad did not suffer deprivation of substantial rights, and his response demonstrated that he understood the nature of summary judgment and complied with the requirements of Rule 56.  See id. at 1160.

The obligation to provide this notice does not extend to non-prisoner pro se litigants.  See Jacobsen v. Filler, 790 F.2d 1362, 1364–67 (9th Cir. 1986).

d.      Materials Submitted in Opposition to Summary Judgment Motion

The court should “treat the opposing party’s papers more indulgently than the moving party’s papers.”  Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (citing Doff v. Brunswick Corp., 372 F.2d 801, 804 (9th Cir. 1966)).

“A verified complaint may be treated as an affidavit to oppose summary judgment to the extent it is ‘based on personal knowledge’ and ‘sets forth specific facts admissible in evidence.’”  Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996) (quoting McElyea v. Babbitt, 833 F.2d 196, 197–98 & n.1 (9th Cir. 1987) (per curiam)), amended by 135 F.3d 1318 (9th Cir. 1998) (order); see also Jones v. Blanas, 393 F.3d 918, 922–23 (9th Cir. 2004); Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc); Johnson v. Meltzer, 134 F.3d 1393, 1399–1400 (9th Cir. 1998) (applying rule to a verified motion); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995); Lew, 754 F.2d at 1423.  Where the plaintiff states that the facts in the complaint are true under the pains and penalties of perjury, see Schroeder, 55 F.3d at 460 n.10, or avers that they are “true and correct,” Johnson, 134 F.3d at 1399, the pleading is “verified.” See also Shepard v. Quillen, 840 F.3d 686, 687 n.1 (9th Cir. 2016).

Relying on a prior version of Rule 56, this court held that “unauthenticated documents cannot be considered on a motion for summary judgment.  In order to be considered by the court, documents must be authenticated by and attached to an affidavit that meets the requirements of [Fed. R. Civ. P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.”  Canada v. Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987) (citation and internal quotation marks omitted); see also Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550–51 (9th Cir. 1990).  But see Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003) (court may consider hearsay statements in support of summary judgment if contents could be presented in admissible form at trial).

Note that in 2010 Rule 56 was amended. The amended subdivision (c)(4) carries forward some of the provisions of former subdivision (e), however, other provisions were omitted. “The requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be attached to the affidavit or declaration [was] omitted as unnecessary given the requirement in subdivision (c)(1)(A) that a statement or dispute of fact be supported by materials in the record.”  Fed. R. Civ. P. 56 advisory committee’s note (2010).  Additionally, “A formal affidavit is no longer required.  28 U.S.C. § 1746 allows a written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit.”  Fed. R. Civ. P. 56 advisory committee’s note (2010).

e.       Conversion of Motion to Dismiss

If, when reviewing a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), the district court considers matters outside the pleadings, then the motion is converted to a motion for summary judgment.  See Friedman v. Boucher, 580 F.3d 847, 852 n.3 (9th Cir. 2009); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996); Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir. 1985); Garaux v. Pulley, 739 F.2d 437, 438 (9th Cir. 1984).  For discussion of materials that can be considered part of the pleadings, see supra II.B.4.c.

Upon such conversion, the parties must be notified and given a reasonable opportunity to present evidence.  See Anderson, 86 F.3d at 934–35; see also Lucas, 66 F.3d at 248; Grove, 753 F.2d at 1532–33; Garaux, 739 F.2d at 438.  Where the non-moving party is a pro se prisoner, the party must receive the same information about summary judgment the party would receive upon the filing of a formal summary judgment motion.  See Anderson, 86 F.3d at 935; see also Lucas, 66 F.3d at 248; Garaux, 739 F.2d at 439–40.  For a discussion of this notice, see supra II.B.5.c.  Where the non-moving party is represented by counsel, notice of conversion need not be formal if the record demonstrates the party was “fairly apprised” of the conversion.  Grove, 753 F.2d at 1532–33 (citation and internal quotation marks omitted); see Garaux, 739 F.2d at 439 (citation omitted).

f.       Requests for Additional Discovery Prior to Summary Judgment (Fed. R. Civ. P. 56(d))[2]

Generally, summary judgment should not be granted before the completion of discovery.  See Harris v. Duty Free Shoppers Ltd. P’ship, 940 F.2d 1272, 1276 (9th Cir. 1991); Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988).

Note that due to amendments to Rule 56 in 2010, the provisions of former subdivision (f) are now provided for in subdivision (d).

The non-moving party may seek a continuance of decision on the summary judgment motion in order to conduct additional discovery.  See Fed. R. Civ. P. 56(d).  “Rule 56(d) provides a device for litigants to avoid summary judgment when they have not had sufficient time to develop affirmative evidence.”  Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (internal quotation marks and citation omitted).

To obtain additional discovery, the non-moving party must submit “affidavits setting forth the particular facts expected from the movant’s discovery.  … Under Rule 56(f), an opposing party must make clear what information is sought and how it would preclude summary judgment.”  Barona Grp. of the Capitan Grande Band of Mission Indians v. Am. Mgmt. & Amusement, Inc., 840 F.2d 1394, 1400 (9th Cir. 1987) (citation and internal quotation marks omitted) (relying on former subdivision (f)); see also California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (former subdivision (f)); Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991).  “In particular, ‘[t]he requesting party must show [that]: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment.” Stevens, 899 F.3d at 678 (quoting Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008) (emphasis added)).

The party seeking additional discovery must make a Rule 56(d) motion; “‘[r]eferences in memoranda and declarations to a need for discovery do not qualify.’”  Barona Grp., 840 F.2d at 1400 (quoting Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986)); see also Campbell, 138 F.3d at 779; Fuller v. Frank, 916 F.2d 558, 563 (9th Cir. 1990) (former subdivision (f)); Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 277 (9th Cir. 1988).

The district court may deny the request for additional discovery where the party has not pursued prior discovery opportunities diligently, see Byrd v. Guess, 137 F.3d 1126, 1135 (9th Cir. 1998), superseded by statute on other grounds as recognized in Moreland v. Las Vegas Metropolitan Police Dep’t, 159 F.3d 365 (9th Cir. 1998); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 920 (9th Cir. 1997) (as amended), or where the request is not relevant to the issues presented on the motion for summary judgment, see Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 465 (9th Cir. 1990); City of Springfield v. Wash. Pub. Power Supply Sys., 752 F.2d 1423, 1427 (9th Cir. 1985).

g.       Local Rules Concerning Summary Judgment

“A district court may not grant a motion for summary judgment simply because the nonmoving party does not file opposing material, even if the failure to oppose violates a local rule.  However, when the local rule does not require, but merely permits the court to grant a motion for summary judgment, the district court has discretion to determine whether noncompliance should be deemed consent to the motion.”  Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994) (per curiam) (citation omitted); see also Henry v. Gill Indus., 983 F.2d 943, 949–50 (9th Cir. 1993); cf. Cristobal v. Siegel, 26 F.3d 1488, 1493 (9th Cir. 1994) (concluding that district court abused its discretion by following mandatory local rule).  Even in this situation, however, the district court must review the moving party’s submission to determine whether it establishes the absence of a genuine issue; failure to do so is an abuse of discretion.  See Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003); Evans v. Indep. Order of Foresters, 141 F.3d 931, 932 (9th Cir. 1998) (order); Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995); Henry, 983 F.2d at 950.

h.      Review on Appeal

The Ninth Circuit reviews de novo a district court’s grant of summary judgment.  See Fuqua v. Ryan, 890 F.3d 838, 844 (9th Cir. 2018); Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc); Ward v. Ryan, 623 F.3d 807, 810 (9th Cir. 2010) (prisoner § 1983 action); Morrison v. Hall, 261 F.3d 896, 900 (9th Cir. 2001) (prisoner § 1983 action); Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998) (non-prisoner § 1983 action); Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994) (per curiam) (prisoner § 1983 action).

6.       Other Kinds of Dismissal

a.       Subject-matter Jurisdiction

Generally, a dismissal for lack of subject-matter jurisdiction should be without prejudice.  See Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (per curiam); Lou v. Belzberg, 834 F.2d 730, 734–35 (9th Cir. 1987).  Where there is no way to cure the jurisdictional defect, however, dismissal with prejudice is proper.  See Frigard, 862 F.2d at 204 (lack of subject-matter jurisdiction based on defendant’s sovereign immunity).

b.      Personal Jurisdiction

Dismissal for lack of personal jurisdiction should be without prejudice.  See Grigsby v. CMI Corp., 765 F.2d 1369, 1372 n.5 (9th Cir. 1985).

c.       Service of Process (Fed. R. Civ. P. 4(m))[3]

If a defendant is not served within 90 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m).  See also Whidbee v. Pierce Cty., 857 F.3d 1019, 1023 (9th Cir. 2017); Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 2013); De Tie v. Orange Cty., 152 F.3d 1109, 1111 (9th Cir. 1998); Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992) (prior Fed. R. Civ. P. 4(j), overruled on other grounds by Saucier v. Katz, 533 U.S. 194 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009); Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987) (prior Fed. R. Civ. P. 4(j)); Townsel v. Cty. of Contra Costa, Cal., 820 F.2d 319, 320 (9th Cir. 1987) (prior Fed. R. Civ. P. 4(j)).

Good cause “applies only in limited circumstances.”  Hamilton, 981 F.2d at 1065.  Neither ignorance of the rule, nor negligence by the party is good cause.  See id.; McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir. 1992) (finding good cause), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); Townsel, 820 F.2d at 320; Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (per curiam).  Good cause “must apply [with] considerable leeway” to pro se litigants, especially if incarcerated.  McGuckin, 974 F.2d at 1058.

It is irrelevant to the good cause determination that dismissal of the claim for failure to serve in a timely fashion may result in the loss of the cause of action because a statute of limitations has run.  See Townsel, 820 F.2d at 320–21.

The district court may grant an extension of time for service of process in absence of showing good cause for delay.  See Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007).  “District courts have broad discretion to extend time for service under Rule 4(m).”  Id. at 1041.  In determining whether to extend the time for service, the district court may consider factors such as “a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.”  Id. (citation and internal quotation marks omitted).

It is an abuse of discretion for a district court to dismiss “a complaint sua sponte for lack of service without first giving notice to the plaintiff and providing an opportunity for [the plaintiff] to show good cause for the failure to effect timely service.” Crowley, 734 F.3d at 975.

d.      Short and Plain Statement (Fed. R. Civ. P. 8(a))

“The Federal Rules require that averments be simple, concise and direct.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (internal quotation marks omitted).

A complaint that fails to comply with Rule 8 may be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b).  Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981); cf. Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1130–33 (9th Cir. 2008) (concluding complaint did not violate Rule 8(a) even though it was lengthy).

“All that is required [by Fed. R. Civ. P. 8(a)] is that the complaint gives ‘the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.’”  Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996) (quoting Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 870 (9th Cir. 1991)); see also Alvarez v. Hill, 518 F.3d 1152, 1157–59 (9th Cir. 2008) (concluding pro se inmate’s complaint was sufficient to state a claim under RLUIPA even though he did not cite the statute); Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th Cir. 1990); Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 924 (9th Cir. 1980).

See also Skinner v. Switzer, 532 U.S. 521, 529–30 (2011); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (discussing the requirements of Rule 8(a)); Cook v. Brewer, 649 F.3d 915, 916–18 (9th Cir. 2011) (per curiam) (concluding that Cook’s allegations failed to state a facially plausible claim upon reviewing the sufficiency of Cook’s claims under Rule 8(a)); Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys. Inc., 637 F.3d 1047, 1058–59 (9th Cir. 2011) (no abuse of discretion in denying leave to amend qui tam complaint that failed to comply with Rule 8(a)).  For additional discussion, see supra II.A.1.

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