                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 DARIO OLIVAS,                                     No. 15-17123
                      Plaintiff-Appellant,
                                                     D.C. No.
                      v.                          2:14-cv-01801-
                                                    JCM-VCF
 STATE OF NEVADA, ex rel.
 Department of Corrections;
 NICHOLAS GALBISO, individually,                      OPINION
               Defendants-Appellees.

        Appeal from the United States District Court
                 for the District of Nevada
         James C. Mahan, District Judge, Presiding

                    Submitted May 10, 2017 *
                      Pasadena, California

                       Filed May 19, 2017




    *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 OLIVAS V. STATE OF NEVADA EX REL. DEP’T OF CORR.

  Before: Richard R. Clifton and Michelle T. Friedland,
Circuit Judges, and Thomas O. Rice,** Chief District Judge.

                       Per Curiam Opinion


                          SUMMARY ***


                      Prisoner Civil Rights

    The panel reversed the district court’s dismissal of a
complaint brought by a former prisoner and remanded for
further proceedings.

    The panel held that the Prison Litigation Reform Act,
28 U.S.C. § 1915A, applies only to claims brought by
individuals incarcerated at the time they file their
complaints. Because plaintiff was not so incarcerated, his
claims should not have been subjected to § 1915A screening.


                            COUNSEL

Cal. J. Potter III and C.J. Potter III, Potter Law Offices, Las
Vegas, Nevada, for Plaintiff-Appellant.




    **
       The Honorable Thomas O. Rice, Chief United States District
Judge for the Eastern District of Washington, sitting by designation.
    ***
        This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
        OLIVAS V. STATE OF NEVADA EX REL. DEP’T OF CORR.                  3

Clark G. Leslie, Chief Deputy Attorney General, Public
Safety/Litigation Division; Adam Paul Laxalt, Attorney
General; United States Attorney’s Office, Carson City,
Nevada; for Defendants-Appellants.


                                 OPINION

PER CURIAM:

    Dario Olivas, a former prisoner, sued correctional
officers and the Nevada Department of Corrections alleging
violations of the Eighth Amendment and various state laws
for injuries he suffered, and the medical treatment he
received, after he was struck by shotgun pellets that officers
fired in an attempt to quell an inmate altercation. The district
court treated the lawsuit as one brought by a prisoner and
thus applied the screening procedures established by
§ 1915A of the Prison Litigation Reform Act (“PLRA”),
28 U.S.C. § 1915A, dismissing the Complaint pursuant to
those procedures. We hold that 28 U.S.C. § 1915A applies
only to claims brought by individuals incarcerated at the
time they file their complaints. Because Olivas was not so
incarcerated, his claims should not have been subjected to
§ 1915A screening. We therefore reverse and remand.

                                       I.

    On July 31, 2012, an altercation broke out in the dining
hall at High Desert State Prison. 1 Dario Olivas, a prisoner at

    1
      “In reviewing an order dismissing a case for failure to state a claim,
we ‘take as true all factual allegations in the complaint.’” Nordstrom v.
Ryan, 762 F.3d 903, 906 (9th Cir. 2014) (quoting Silva v. Di Vittorio,
658 F.3d 1090, 1101 (9th Cir. 2011)).
4 OLIVAS V. STATE OF NEVADA EX REL. DEP’T OF CORR.

the time, was seated several tables away from the altercation
and was not involved in it. “[A]lmost immediately after the
altercation began,” one or more officers fired pellets from a
shotgun into the dining room. The pellets struck Olivas in
the eye, face, and upper body. As a result, he lost sight in
his right eye and suffered permanent disfigurement,
excruciating pain, and extreme shock.

    Olivas was released from prison in June 2014. In July
2014, Olivas filed a pro se complaint in state court. After
retaining counsel, Olivas filed an amended complaint against
Correctional Officer Galbiso, the Nevada Department of
Corrections, and ten John Doe correctional officers alleging
violations of the Eighth Amendment and various state laws.

    Defendants removed the case to federal court in October
2014. The district court issued a screening order pursuant to
28 U.S.C. § 1915A dismissing the federal claims without
prejudice and deferring a decision on the state law claims
until Olivas amended the complaint.

    In April 2015, Olivas filed a Second Amended
Complaint in which he claimed that Defendants used
excessive force by “maliciously and sadistically shooting
Mr. Olivas in the eye with the intent to cause him harm.” He
also alleged that Defendants acted with deliberate
indifference to his serious medical needs by denying him
treatment for the injuries caused by the shotgun pellets.

    In September 2015, the district court issued a screening
order pursuant to 28 U.S.C. § 1915A dismissing Olivas’s
federal claims with prejudice and denying leave to amend.
It concluded that Olivas had failed to state a colorable claim
for excessive force. Despite Olivas’s allegations of malice,
the relatively short distance between the officers and the
altercation, the space between Olivas and the altercation, the
    OLIVAS V. STATE OF NEVADA EX REL. DEP’T OF CORR.       5

rapidity with which the officers allegedly began firing, and
the extent of Olivas’s injuries, the district court held that
Olivas had been inadvertently struck with shotgun pellets
while the officers acted in good faith to restore discipline.
The district court also dismissed Olivas’s deliberate
indifference claim because it concluded that he failed to
allege facts showing Defendants knew of and disregarded an
excessive risk to his health. Finally, the district court
dismissed Olivas’s claims against the state of Nevada and
the Nevada Department of Corrections on Eleventh
Amendment grounds. The district court declined to exercise
supplemental jurisdiction over Olivas’s state law claims and
dismissed them without prejudice. The district court denied
leave to amend, stating that amendment would be futile.
Olivas timely appealed.

                               II.

   This case presents us for the first time with the question
whether a former prisoner who was released from custody
before he filed his complaint is a “prisoner” within the
meaning of 28 U.S.C. § 1915A.

    Section 1915A provides that a federal district court
“shall review . . . 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 . . . dismiss the
complaint, or any portion of the complaint,” if it “(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.” 28 U.S.C.
§ 1915A(b). Section 1915A defines “prisoner” as “any
person incarcerated . . . who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms and conditions of parole,
6 OLIVAS V. STATE OF NEVADA EX REL. DEP’T OF CORR.

probation, pretrial release, or diversionary program.”
28 U.S.C. § 1915A(c).

                                A.

    Although we have not previously interpreted the
definition of “prisoner” in 28 U.S.C. § 1915A, we have
interpreted two other provisions of the PLRA that use the
same definition.

    In Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000), we
considered whether 28 U.S.C. § 1915, which establishes
procedures for prisoner-plaintiffs proceeding in forma
pauperis, and 42 U.S.C. § 1997e, which requires prisoner-
plaintiffs to exhaust administrative remedies before
challenging prison conditions, applied to a plaintiff who was
civilly committed. We held that neither provision applied to
a civilly committed plaintiff. We explained that “the natural
reading” of the definition of “prisoner” in 28 U.S.C.
§ 1915(h) and 42 U.S.C. § 1997e(h) “is that, to fall within
the definition of ‘prisoner,’ the individual in question must
be currently detained as a result of accusation, conviction or
sentence for a criminal offense.” Page, 201 F.3d at 1139.
Thus “only individuals who, at the time they seek to file their
civil actions, are detained as a result of being accused of,
convicted of, or sentenced for criminal offenses are
‘prisoners’ within the definition of 42 U.S.C. § 1997e and
28 U.S.C. § 1915.” Id. at 1140.

    Similarly, in Talamantes v. Leyva, 575 F.3d 1021 (9th
Cir. 2009), we analyzed whether a plaintiff who had been
released from custody prior to filing his action was a
“prisoner” within the meaning of 42 U.S.C. § 1997e(h).
Relying again on the plain language of the statute, we held
that “only those individuals who are prisoners . . . at the time
they file suit must comply with the exhaustion requirements
        OLIVAS V. STATE OF NEVADA EX REL. DEP’T OF CORR.                7

of 42 U.S.C. § 1997e(a).” Talamantes, 575 F.3d at 1024.
Because the plaintiff had been released from custody before
he filed suit, he was not required to comply with 42 U.S.C.
§ 1997e(a). Id.

                                     B.

    The definition of “prisoner” at issue in Page and
Talamantes is the same definition at issue here. See
28 U.S.C. §§ 1915(h), 1915A(c); 42 U.S.C. § 1997e(h).
Accordingly, we hold that a court may screen a complaint
pursuant to 28 U.S.C. § 1915A only if, at the time the
plaintiff files the complaint, he is “incarcerated or detained
in any facility [because he] is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.” This
reading is consistent with Page and Talamantes, as well as
with the plain language of the statute.

    Because it is undisputed that Olivas was released from
custody a month before he filed his complaint, the screening
requirement of 28 U.S.C. § 1915A does not apply to his
claims. The district court therefore erred in subjecting them
to screening. 2

    REVERSED and REMANDED.



    2
      We note that it appears the rigorous screening here did not take all
factual allegations as true and weighed imagined countervailing
evidence. And, even if it had been proper to conclude that the Complaint
failed to state a claim, leave to amend should be freely given. See
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th
Cir. 2003).
