                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 2 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JERRY A. BURTON,                                No.    13-17541

                Plaintiff-Appellant,            D.C. No. 3:12-cv-03158-JST

 v.
                                                MEMORANDUM*
BRIAN LEE, CSR; SUZAN HUBBARD,
Warden,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                     Jon S. Tigar, District Judge, Presiding

                       Argued and Submitted April 10, 2018
                              Pasadena, California

Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.

      California state prisoner Jerry A. Burton appeals the district court’s order

revoking his in forma pauperis (“IFP”) status and dismissing his civil rights action

against employees of the California Department of Corrections, in which Burton



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Irene M. Keeley, United States District Judge for the
Northern District of West Virginia, sitting by designation.
alleges he was placed in the secure housing unit (“SHU”) based on his erroneous

identification as a gang member. The district court dismissed the action as barred

by the “three strikes” rule under the Prison Litigation Reform Act (“PLRA”), 28

U.S.C. § 1915(g). We conclude that we have jurisdiction over the present appeal

under 28 U.S.C. § 1291, and we reverse and remand.

      1. We reject Defendants-Appellees’ argument that we lack jurisdiction

because Burton did not file a notice of appeal within 30 days of the district court’s

dismissal order. Under Rule 4(a) of the Federal Rules of Appellate Procedure, a

notice of appeal must be filed in a civil action within 30 days after the entry of

judgment. Fed. R. App. P. 4(a)(1)(A); see also 28 U.S.C. § 2107. Generally

speaking, judgment is deemed “entered” when the district court files a separate

document setting forth the judgment. See Fed. R. Civ. P. 58(a), (c). Where a

separate judgment is required but never filed by the district court, judgment is

deemed “entered” 150 days after the entry of the final order. Fed. R. Civ. P.

58(c)(2)(B). Here, although the district court entered its order dismissing Burton’s

claim and revoking IFP status on November 1, 2013, it never filed a separate

document setting forth its judgment. Accordingly, judgment was not deemed

entered until 150 days after November 1, 2013. Burton’s notice of appeal, filed1 on


1
 “Under the ‘mailbox rule,’ a pro se prisoner’s filing of a state habeas petition is
deemed filed at the moment the prisoner delivers it to prison authorities for
forwarding to the clerk of the court.” Stillman v. LaMarque, 319 F.3d 1199, 1201

                                           2
December 5, 2013, fell well within the permissible time for filing under Rule 58.

See Bankers Trust Co. v. Mallis, 435 U.S. 381, 382–84 (1978) (per curiam) (the

filing of a notice of appeal before the entry of judgment waives the separate

document requirement, but does not deprive the appellate court of jurisdiction); see

also Fed. R. App. P. 4(a)(7)(B) (“A failure to set forth a judgment or order on a

separate document when required by Federal Rule of Civil Procedure 58(a) does

not affect the validity of an appeal from that judgment or order.”).

      Defendants-Appellees cite Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.

2005), for the proposition that a separate judgment is not required for an order

revoking IFP status. This argument is unavailing. Andrews held that an order

revoking IFP status is a final order for the purposes of 28 U.S.C. § 1291. Id.

However, finality does not affect the separate judgment requirement under Rule

58. See Bankers Trust Co., 435 U.S. at 382–84. We therefore conclude that

Burton’s notice of appeal, filed on December 5, 2013, was timely, and we

accordingly have jurisdiction over the present appeal. See Washington v. Ryan, 833

F.3d 1087, 1089 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 1581 (2017);

United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007).

      2. The district court erred in revoking Burton’s IFP status and dismissing



(9th Cir. 2003). Here, Burton’s sworn proof of service shows the notice of appeal
was delivered to prison officials on December 5, 2013.

                                          3
Burton’s complaint as barred by the PLRA’s three strikes rule. Reviewing de

novo, we conclude that Burton v. Baca, et. al., No. 2:08-cv-04546-UA-CW (C.D.

Cal. July 11, 2008) (“Baca I”), and Burton v. Baca, No. 2:08-cv-05746-UA-CW

(C.D. Cal. Sept. 3, 2008) (“Baca II”), did not constitute strikes under § 1915(g) of

the PLRA.

      First, Baca I is not a strike because Burton’s claims, though brought under

42 U.S.C. § 1983, sounded in habeas. In Baca I, Burton alleged that defendant

prison officials were illegally holding Burton for crimes for which he had not yet

been arrested, booked or charged, in violation of the Eighth and Fourteenth

Amendments. Burton requested damages, as well as declaratory and injunctive

relief. The district court dismissed Burton’s complaint, concluding that Burton’s

allegations necessarily challenged the validity of his 1990 conviction for first-

degree murder under Cal. Penal Code § 187(a), citing this Court’s decision in Heck

v. Humphrey, 512 U.S. 477, 486–87 (1994).2 However, as this Court recently held,

“[w]hen we are presented with multiple claims within a single action, we assess a

PLRA strike only when the ‘case as a whole’ is dismissed for a qualifying reason

under the Act.” Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th



2
  In Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), the Supreme Court held that
a claim for damages that either alleges unconstitutional conviction or
imprisonment or harm that would render a conviction or sentence invalid is not
cognizable under § 1983.

                                          4
Cir. 2016) (quoting Andrews v. Cervantes, 493 F.3d 1047, 1054 (9th Cir. 2007)).

Although Burton styled his complaint as a § 1983 action and sought damages, his

claims sounded in habeas and he requested injunctive relief. See El-Shaddai v.

Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) (“When a prisoner challenges the

fact or duration of his confinement, the sole federal remedy is a writ of habeas

corpus.”). This is the type of “mixed” claim that we have held does not count as a

strike under the PLRA. See Washington, 833 F.3d at 1056–57; see also Naddi v.

Hill, 106 F.3d 275, 277 (9th Cir. 1997). The fact that Baca I may have been

strategically brought under 42 U.S.C. § 1983 to avoid the hurdles of our habeas

jurisprudence is irrelevant. See El-Shaddai, 833 F.3d at 1047.

      Second, the district court erred in concluding Baca II was a separate strike

from Baca I. There is no evidence that Burton initiated Baca II as a separate action

from Baca I, or that the filing was “frivolous” or “malicious,” for the purposes of

the PLRA. Instead, our review of the dockets in Baca I and Baca II reveals that the

district court opened Baca II upon receiving an IFP application that Burton

intended to file in Baca I. Without any further activity from Burton, the district

court dismissed Baca II as barred by Heck v. Humphrey. Attached to the district

court’s dismissal order is a complaint that is identical to that filed in Baca I.

Although Defendants-Appellees suggest that Burton intentionally filed an identical

complaint as a second frivolous action, the face of the complaint in Baca II reveals


                                           5
that the clerk received, lodged, and returned the complaint after the case had

already been dismissed. This suggests administrative error—not a frivolous or

malicious filing by Burton. See Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir.

2013) (“A claim is ‘frivolous’ when it is without ‘basis in law or fact,’ and

‘malicious’ when it is filed with the intention or desire to harm another.” (quoting

Andrews, 398 F.3d at 1121)).

      Accordingly, we conclude that the district court erred when it found that

both Baca I and Baca II were strikes under the PLRA. As the district court did not

identify any other qualifying strikes, we vacate the dismissal of Burton’s civil

rights action and remand for further proceedings.

      REVERSED and REMANDED.




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