Andrews

Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

ORDER

The opinion filed on February 11, 2005 is amended to include Judge Fernandez’s concurring and dissenting opinion.

OPINION

Appellant Antolin Andrews, an inmate in California State Prison-Solano (“CSP-So-lano”), filed a pro se complaint under 42 U.S.C. § 1983 challenging the way in which the prison officials administered the *1116 process for resolving prisoner grievances. After the district court granted Andrews’ motion to proceed in forma pauperis (“IFP ”), the defendants filed a motion for summary judgment, arguing that Andrews was not entitled to proceed IFP under the “three strikes” provision of 28 U.S.C. § 1915 (g). 1 The district court granted the defendants’ motion and ultimately dismissed Andrews’ complaint without prejudice, ruling that Andrews had failed to demonstrate that he did not have three strikes under § 1915(g).

Whether the burden of establishing the existence or nonexistence of three strikes rests with the defendant or with the prisoner-plaintiff is an issue of first impression in this circuit. We hold that when the defendant challenges a prisoner’s right to proceed IFP,…

concurring and dissenting:

I concur in the majority opinion, with the exception of part III-A and the second sentence of the second paragraph of part III-B. As to those three portions, I dissent.

A. Burdens of Production and Persuasion

Andrews asserts that the district court erred when it allocated to him the burden of proving that his prior dismissals did not constitute strikes. He posits that when the state tells the court that a prisoner should not have IFP status based on 28 U.S.C. § 1915 (g), it should bear the final burden of persuading the court of the existence of three prior strikes. The majority and I agree that is not so.

The district court’s allocation of the burden of persuasion is a question of law that we review de novo. Ferrari, Alvarez, Olsen & Ottoboni v. Home Ins. Co., 940 F.2d 550, 555 (9th Cir.1991); Lew v. Moss, 797 F.2d 747, 750 (9th Cir.1986). Although we have yet to rule on the issue, those circuits that have addressed it have placed the burden on the prisoner who is seeking to file IFP. See Day v. Maynard, 200 F.3d 665, 666-67 (10th Cir.1999) (per curiam) (section 1915(g) barred prisoner’s action where he failed to persuade the court that his prior…

I. Facts and Procedural History

Andrews is a state inmate incarcerated in CSP-Solano. Seeking damages and injunctive relief, Andrews filed a pro se civil rights action under 42 U.S.C. § 1983 against the defen- dants V.R. King, S. Cervantes, T. Dickinson and Lt. McPhereson, prison officials at CSP-Solano, and Ed Alamedia, the Director of the California Department of Cor- rections (collectively “the State defendants”). Andrews alleged that the State defendants administer the prisoner grievance administrative process at CSP-Solano to effectively deny prisoners access to the federal courts by making it “al- most impossible” to exhaust the prison’s administrative reme- dies.2 The district court initially granted Andrews’ request to proceed IFP.

The State defendants did not respond to Andrews’ com- plaint. Instead, they filed a motion for summary judgment under Fed. R. Civ. P. 56(d). In their motion, the State defen- dants argued that Andrews had acquired three strikes and, as proof of the existence of those strikes, they attached records from the federal courts’ Public Access to Court Electronic Records (“PACER”) system showing the docket records for twenty-two actions in which…