                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 DANIEL MIKE CHAVEZ,                                No. 14-35384
               Plaintiff-Appellant,
                                                      D.C. No.
                      v.                           1:11-cv-03025-
                                                         PA
 DAVID R. ROBINSON; LISA MOORE;
 BOARD OF PAROLE AND POST-
 PRISON SUPERVISION,                                  OPINION
              Defendants-Appellees.


       Appeal from the United States District Court
                for the District of Oregon
      Owen M. Panner, Senior District Judge, Presiding

                  Argued and Submitted
           December 8, 2015—Seattle, Washington

                       Filed March 29, 2016

 Before: M. Margaret McKeown and Richard C. Tallman,
  Circuit Judges and Sharon L. Gleason,* District Judge.

                  Opinion by Judge McKeown




 *
   The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
2                      CHAVEZ V. ROBINSON

                           SUMMARY**


                            Civil Rights

    The panel reversed the district court’s sua sponte
dismissal of an in forma pauperis civil rights complaint and
remanded in an action brought against a County probation
officer and a private therapist, who had contracted with the
County to run a sex offender treatment program.

    Analyzing 28 U.S.C. § 1915(e)(2)(B)(iii), which requires
a court to dismiss an action “at any time” if it determines that
the complaint “seeks monetary relief against a defendant who
is immune from such relief,” the panel held that the term
“immune” as used in the statute includes both absolute and
qualified immunity. The panel then held that 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.

    In this case, the panel determined that plaintiff’s
complaint did not clearly show that he would be unable to
overcome qualified immunity. The panel concluded that
further amendment or proceedings would be necessary to
clarify, for example, whether the therapist was acting under
color of state law in operating the sex offender treatment
program and whether the therapist or the probation officer
violated any clearly established law. Accordingly, the panel


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    CHAVEZ V. ROBINSON                        3

held that the district court erred by dismissing plaintiff’s
claims sua sponte.


                         COUNSEL

John T. Drake (argued), Foster Pepper PLLC, Spokane,
Washington; Kendra H. Nickel-Nguy, K&L Gates LLP,
Seattle, Washington, for Plaintiff-Appellant.

Gerald L. Warren (argued), Law Office of Gerald Warren,
Salem, Oregon, for Amicus Curiae Klamath County.

Jeff J. Payne (argued), Senior Assistant Attorney General;
Ellen F. Rosenblum, Attorney General; Anna M. Joyce,
Solicitor General, Salem, Oregon, for Amicus Curiae State of
Oregon.


                          OPINION

McKEOWN, Circuit Judge:

    After serving a prison sentence for attempted sexual
abuse, Daniel Chavez entered probation. As a condition of
probation, Chavez was ordered to enroll in a sex offender
treatment program, which required him to admit his guilt
before treatment began and while his appeal was pending.
Chavez maintained his innocence both during and after trial.
Alarmed at the prospect of admitting guilt, Chavez worried
that such an admission of guilt could affect a potential retrial
and also expose him to perjury charges because his direct
appeal was still pending at the time of his release. When
Chavez invoked the Fifth Amendment privilege against self-
4                   CHAVEZ V. ROBINSON

incrimination and refused to admit that he had committed a
sex crime, his therapist rejected him from the sex offender
treatment program and his probation officer sent him back to
prison for violating the terms of his probation. As it turned
out, Chavez was prescient with respect to his appeal—the
Oregon Attorney General conceded error and the Oregon
Court of Appeals remanded his case for retrial. State v.
Chavez, 272 P.3d 167 (Or. App. 2012).

    Meanwhile, Chavez filed a pro se in forma pauperis
(“IFP”) civil rights complaint in federal district court against
his probation officer and therapist. Before any defendant had
been served, the district court dismissed the complaint with
prejudice, in large part on immunity grounds.

    Although Chavez’s appeal raises serious questions about
the scope of Fifth Amendment protections for probationers
undergoing sex offender treatment under Minnesota v.
Murphy, 465 U.S. 420 (1984), the procedural posture of the
case narrows the scope of this appeal. We thus consider
whether a district court can sua sponte dismiss an IFP
complaint on the basis of qualified immunity under 28 U.S.C.
§ 1915(e)(2)(B)(iii), which requires dismissal if the action
“seeks monetary relief against a defendant who is immune
from such relief.” We hold that the term “immune” as used
in the statute includes both absolute and qualified immunity.
Because Chavez’s complaint did not clearly foreclose the
possibility of qualified immunity, we reverse and remand for
further proceedings.

                       BACKGROUND

    An Oregon jury convicted Chavez of two counts of
attempted first-degree sexual abuse and two counts of private
                   CHAVEZ V. ROBINSON                       5

indecency. After he was released from jail in June 2010,
Chavez started serving five years of supervised probation. He
was required to complete and pay for an approved sex
offender treatment program as a condition of his release. Or.
Rev. Stat. § 144.102(4)(b)(F).

    Chavez maintained his innocence throughout trial and in
later proceedings. While he was still in prison, Chavez
appealed his conviction to the Oregon Court of Appeals.
Recognizing that the sex offender program would require an
admission of guilt, he asked the Oregon Board of Parole and
Post-Supervision to delay the treatment until after the
decision on his appeal. That request went unanswered. With
his appeal still pending, Chavez reported to his probation
officer, defendant Lisa Moore, who ordered him to participate
in a sex offender treatment program run by defendant David
Robinson, a therapist in private practice. At the time, the
Klamath County Community Corrections and Probation
Department employed Moore and contracted with Robinson
for his services.

    When Chavez first arrived at Robinson’s office, Robinson
asked him to sign forms admitting his guilt for the attempted
sexual abuse and private indecency convictions, along with
“all other crimes.” Robinson also asked Chavez to sign a
release that would have allowed Robinson to send each form
to the Klamath County District Attorney’s Office. Chavez’s
refusal to sign the forms led him to be handcuffed and booked
into jail, where he spent a month as a sanction for failure to
cooperate.

    Chavez then petitioned the state court to postpone the
treatment program while his criminal appeal was pending.
Although the court denied the motion to stay treatment, it
6                       CHAVEZ V. ROBINSON

ordered that “[n]o statements, admissions, or confessions
made by defendant pursuant to the conditions of probation or
post-prison supervision . . . shall be admissible against
defendant in any further proceedings in the above-captioned
case or in any other criminal proceedings” except any
proceedings related to homicide.1 The court also ordered that
any evidence gained as a result of the statements would be
inadmissible.

     Although Chavez was directed to reenter the sex offender
treatment program, Robinson terminated his treatment, both
because Chavez “failed to cooperate with his sexual offender
treatment program requirements” and because he had filed
suit against Robinson the previous day. (The complaint also
listed Moore as a defendant.) Moore revoked Chavez’s
probation and imposed a 45-day jail sanction.

    The twists and turns in Chavez’s federal lawsuit provide
the procedural backdrop for this appeal. Chavez filed a
motion to proceed IFP and a motion for appointment of
counsel. After the district court granted Chavez’s IFP motion
and denied his motion to appoint counsel, the case lay
dormant for nearly two years. Then in March 2013, the
district court ordered Chavez to show cause within thirty days
as to why his case should not be dismissed for failure to
prosecute. Fifteen days later, Chavez filed a document
labeled “Tort Claim with Damages.” This filing listed


    1
     We grant Chavez’s unopposed motions under Federal Rule of
Evidence 201 to take judicial notice of the trial court’s immunity order,
and of his first criminal judgment. See United States v. Wilson, 631 F.2d
118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own
records in other cases, as well as the records of an inferior court in other
cases.”).
                       CHAVEZ V. ROBINSON                               7

Robinson and the Oregon Board of Parole (“Parole Board”)
as defendants, omitting Moore.

   A year later, the district court sua sponte dismissed
Chavez’s case with prejudice for failing to state a claim. The
court construed Chavez’s “Tort Claim with Damages” as an
amended complaint. It concluded that the Eleventh
Amendment barred Chavez’s claims against the Parole Board
and that absolute quasi-judicial immunity barred any claims
against members of the Parole Board in their individual
capacities. The court dismissed Moore from the action
because she was not named in Chavez’s “Tort Claim with
Damages” and in any event, qualified immunity would bar
Chavez’s § 1983 claims. Finally, the court dismissed
Chavez’s tort claims against Robinson because his conduct
was lawful under Oregon law. The court also reasoned that
Robinson was not acting under color of state law and, even if
he were, he was entitled to qualified immunity.2

                              ANALYSIS

   As a threshold matter, we consider whether the district
court properly construed Chavez’s “Tort Claim with
Damages” filing—which was submitted soon after the court




  2
     No defendants were served in this case and none appeared in the
district court. In an early filing, Chavez provided addresses for Robinson
and Moore. Although he initially said that they had been served, we will
not hold this against him because § 1915(d) provides that when a plaintiff
is proceeding IFP, “the officers of the court shall issue and serve all
process.” On appeal, the State of Oregon (in support of all defendants)
and Klamath County (in support of Moore) appeared as amici curiae and
filed briefs.
8                      CHAVEZ V. ROBINSON

issued an order to show cause—as an amended complaint.3
Chavez filed his original complaint against Robinson and
Moore. His supplemental filing listed only Robinson and the
Parole Board as respondents and contained no reference to
Moore in the text.

     When a petitioner proceeds pro se, as Chavez did, the
district court must “construe the pleadings liberally and []
afford the petitioner the benefit of any doubt.” Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted).
At no point did Chavez indicate that the filing was intended
to amend his earlier complaint. Nor did the court give
Chavez the opportunity to address any perceived deficiencies,
such as clarifying which parties were the intended defendants.
See, e.g., Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir.
2013) (“A district court abuses its discretion by denying leave
to amend where the complaint’s deficiencies could be cured
by naming the correct defendant.”); Lucas v. Dep’t of Corr.,
66 F.3d 245, 248 (9th Cir. 1995) (“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.”).

    Contrary to the district court’s sua sponte
recharacterization of Chavez’s filing, the better interpretation
of the “Tort Claim with Damages” submission is that Chavez


    3
      Amicus curiae State of Oregon argues that Chavez waived this
argument by failing to raise it before this court. We disagree because “a
fair reading of the opening brief implicitly raises this issue” and any
“failure to properly raise the issue caused no prejudice to the opposing
party.” JG v. Douglas Cty. Sch. Dist., 552 F.3d 786, 796 n.6 (9th Cir.
2008) (relying on Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004)).
                       CHAVEZ V. ROBINSON                                9

was responding to the district court’s order to show cause.
He filed the document fifteen days after the court issued its
order, well within the thirty-day window given by the court.
Chavez characterized the filing as “exhibits of abuse
supporting this cause,” not as an amended complaint. He was
directed to take action to avoid dismissal and he did. Because
the filing did not amend or supersede Chavez’s original
complaint, Moore remains a party to this action.4

    The next question—and the crux of this appeal—is
whether the district court had authority to dismiss sua sponte
Chavez’s claims against Robinson and Moore on qualified
immunity grounds. Chavez’s position is that a court should
not be able to “dismiss a case on qualified immunity grounds
unless and until the defense has been affirmatively raised in
a responsive pleading.”

   The statute governing IFP filings requires a court to
dismiss an action “at any time” if it determines that the
complaint “seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(iii).
Chavez acknowledges that the statute applies to absolute
immunity. He argues, however, that we should not read
§ 1915 to permit a district court to screen sua sponte for
qualified immunity before the defendants have been served
and affirmatively raised the issue in a responsive pleading.




  4
   The Parole Board was not a party in the complaint nor did it become
a party via the subsequent filing. In any event, Chavez does not appeal the
district court’s findings that the Parole Board is entitled to absolute
immunity and that board members are entitled to absolute quasi-judicial
immunity.
10                  CHAVEZ V. ROBINSON

    Chavez’s approach is at odds with the clear text of the
statute, which precludes such distinctions between absolute
and qualified immunity. See In re HP Inkjet Printer Litig.,
716 F.3d 1173, 1180 (9th Cir. 2013) (“[O]ur inquiry begins
with the statutory text, and ends there as well if the text is
unambiguous.” (citation omitted)). Section 1915 requires a
court to dismiss an action “at any time” if the defendant is
entitled to immunity. We divine no express or implied
temporal limit in this phrase. Once a court has sufficient
information to make a determination on immunity, the statute
mandates dismissal—even if dismissal comes before the
defendants are served. Lopez v. Smith, 203 F.3d 1122, 1130
(9th Cir. 2000) (en banc) (stating that 28 U.S.C.
§ 1915(e)(2)(B)(ii) authorizes a court to dismiss a complaint
that fails to state a claim sua sponte before defendants are
served).

     Nor can we see a textual basis for distinguishing between
absolute and qualified immunity—the term “immune”
appears without any qualifier. Absolute immunity provides
a limited category of officials total protection from suit when
they perform certain “special functions,” while qualified
immunity protects officials only if “their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Buckley v.
Fitzsimmons, 509 U.S. 259, 268–71 (1993) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). Chavez argues that
qualified immunity is an affirmative defense that the
defendant, not the court, must raise. But like absolute
immunity, qualified immunity “is an immunity from suit
rather than a mere defense to liability,” and is thus
“effectively lost if a case is erroneously permitted to go to
trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)
(emphasis omitted).
                   CHAVEZ V. ROBINSON                       11

    Our interpretation is consistent with the purpose of the
Prison Litigation Reform Act of 1995 (“PLRA”), which
amended an earlier iteration of the IFP statute in 1996.
Omnibus Consolidated Rescissions and Appropriations Act
of 1996, Pub. L. No. 104-134, §§ 801–810, 110 Stat. 1321-66
(1996) (codified at scattered sections). Before the PLRA
came into force, § 1915 required courts to dismiss only those
cases that were “frivolous or malicious.” Jones v. Bock,
549 U.S. 199, 214 (2007). The PLRA was designed to reduce
the volume of prisoner suits by “filter[ing] out the bad claims
and facilitat[ing] consideration of the good.” Id. at 204.
Accordingly, the current IFP statute provides additional,
detailed grounds for dismissal—including mandatory
dismissal of any claim that “seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(iii).

    At the time Congress adopted this revision, the distinction
between absolute and qualified immunity was well developed
in the case law, see, e.g., Mitchell, 472 U.S. at 525–26, and
“[w]e generally presume that Congress is knowledgeable
about existing law pertinent to the legislation it enacts.”
Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85
(1988). Although Congress could have limited dismissal
under 28 U.S.C. § 1915(e)(2)(B)(iii) to absolute immunity, it
did not do so. We conclude that Congress intended § 1915(e)
to apply to both types of immunity.

    We also glean an unrestricted definition of immunity
from Congress’s use of “immune” in a separate provision of
the PLRA. At the same time it amended § 1915, Congress
added § 1915A, a new provision that governs screening of
civil actions filed by prisoners. Section 1915A mandates
early review—“before docketing [] or [] as soon as
12                   CHAVEZ V. ROBINSON

practicable after docketing”—for all complaints “in which a
prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity.” 28 U.S.C.
§ 1915A(a). This section also requires a court to dismiss a
prisoner’s complaint if it “seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b)(2). Read together, §§ 1915A(a) and (b) allow a
court to dismiss sua sponte a prisoner complaint that “seeks
redress from [an] . . . employee of a governmental entity” on
the grounds of immunity. In this context, immunity must
include qualified immunity; if it did not, the immunity
provision would not apply to the broad category of
“employee[s] of a governmental entity” under 28 U.S.C.
§ 1915A(a). See Harlow, 457 U.S. at 809–11 (discussing
limited scope of absolute immunity); see also Story v. Foote,
782 F.3d 968, 969–70 (8th Cir. 2015) (holding sua sponte
pre-service dismissal appropriate under section 1915A “if the
defense of qualified immunity is established on the face of
the complaint”).

    The only textual difference is that § 1915 says “against a
defendant” whereas § 1910A says “from a defendant.” This
minor variation is the ultimate in a distinction without a
difference. It is no coincidence that both § 1915 and § 1915A
employ the virtually identical phrasing:

     •   “[T]he 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).

     •   “[T]he court shall . . . dismiss the complaint . . . if the
         complaint . . . seeks monetary relief from a defendant
                    CHAVEZ V. ROBINSON                       13

       who is immune from such relief.”             28 U.S.C.
       § 1915A(b)(2).

   The best reading of § 1915 is that “immunity” means the
same thing as it does in § 1915A. “Presumptively, identical
words used in different parts of the same act are intended to
have the same meaning.” U.S. Nat’l Bank v. Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 460 (1993) (citation
omitted).

    We hold that 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. 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)).
Our resolution does not impose a heightened pleading
standard for plaintiffs proceeding IFP, nor does it require
plaintiffs to anticipate or plead around qualified immunity
defenses in their complaints. Cf. Gomez v. Toledo, 446 U.S.
635, 640 (1980) (“Since qualified immunity is a defense, the
burden of pleading it rests with the defendant.”); Crawford-El
v. Britton, 523 U.S. 574, 595 (1998) (“We [have] refused to
change the Federal Rules governing pleading by requiring the
plaintiff to anticipate the immunity defense[.]”). Pro se
complaints frequently lack sufficient information for a judge
to make a qualified immunity determination without the
benefit of a responsive pleading or discovery. We caution
that pre-service dismissal on the basis of qualified immunity
is appropriate only in limited circumstances.
14                    CHAVEZ V. ROBINSON

    Chavez’s pro se complaint did not clearly show that he
would be unable to overcome qualified immunity. Further
amendment or proceedings would be necessary to clarify, for
example, whether Robinson was acting under color of state
law in operating the sex offender treatment program and
whether Robinson or Moore violated any clearly established
law.5 Accordingly, the district court erred by dismissing
Chavez’s § 1983 claims sua sponte. Despite Chavez’s
request, no “unusual circumstances” merit reassignment to a
different district court judge on remand. Krechman v. County
of Riverside, 723 F.3d 1104, 1111 (9th Cir. 2013).

    Given the nature of Chavez’s claims and the limited
record on appeal, we decline to reach the remaining issues
raised by the parties, including the merits of the qualified
immunity defense.

      REVERSED AND REMANDED.




  5
    Chavez also argues that he raised First Amendment retaliation and
compelled speech claims in the complaint. We disagree; these arguments
are not present in the complaint and have been waived.
