James Storm Shirley v. University of Idaho

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES STORM SHIRLEY,
Plaintiff-Appellant,
v.
UNIVERSITY OF IDAHO; COLLEGE OF
LAW, at University of Idaho; IDAHO
STATE BOARD OF EDUCATION,
Defendants-Appellees.
No. 14-36108
D.C. No.
3:14-cv-00215-
LAB
ORDER
Appeal from the United States District Court
for the District of Idaho
Larry A. Burns, District Judge, Presiding
Submitted to Motions Panel
July 28, 2015
Filed September 10, 2015
Before: Mary M. Schroeder, William C. Canby, Jr.,
and Alex Kozinski, Circuit Judges.
Order;
Concurrence by Judge Kozinski;
Concurrence by Judge Canby

-- 1 of 6 --

SHIRLEY V. UNIV. OF IDAHO 2
SUMMARY*
Dismissal
A motions panel summarily reversed the district court’s
order denying a motion to file a second amended complaint
on the basis that it contained allegations that were
irreconcilably contradictory to allegations made in the
original complaint and first amended complaint.
The panel held that the allegations in the second amended
complaint were not so patently inconsistent with the previous
allegations made by the plaintiff, who was proceeding in
forma pauperis, as to warrant a screening dismissal under 28
U.S.C. § 1915(e)(2)(B). The panel remanded the case to the
district court with instructions to file the proposed second
amended complaint and order service on defendants.
Concurring in the judgment, Judge Kozinski wrote that
inconsistency, or even direct contradiction, between a current
complaint and an earlier one does not render the current
complaint legally insufficient under Federal Rule of Civil
Procedure 12(b).
Concurring, Judge Canby wrote that the court’s precedent
is inconsistent on the permissibility of inconsistent pleading,
but that there was no need for en banc rehearing in light of
the panel’s conclusion that the proposed amended complaint
was not actually inconsistent with the plaintiff’s prior
pleadings.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

-- 2 of 6 --

SHIRLEY V. UNIV. OF IDAHO 3
COUNSEL
James Storm Shirley, Bozeman, Montana, pro se Plaintiff-
Appellant.
No appearance by Defendants-Appellees.
ORDER
On December 18, 2014, the district court denied
appellant’s motion to amend his complaint a second time and
dismissed appellant’s claims with prejudice. The district
court based the dismissal on its conclusion that the proposed
second amended complaint contained allegations that were
irreconcilably contradictory to allegations made in the
original complaint and first amended complaint.
We summarily reverse, because the allegations in the
proposed second amended complaint cited by the district
court were not so patently inconsistent with appellant’s
previous allegations as to warrant a screening dismissal. See
28 U.S.C. § 1915(e)(2)(B) (district court shall screen and
dismiss an action filed by a plaintiff proceeding in forma
pauperis if the action “is frivolous or malicious,” “fails to
state a claim on which relief may be granted,” or “seeks
monetary relief against a defendant who is immune from such
relief”).
On remand, the district court shall file the proposed
second amended complaint and order service on defendants.
REVERSED and REMANDED.

-- 3 of 6 --

SHIRLEY V. UNIV. OF IDAHO 4
KOZINSKI, Circuit Judge, concurring in the judgment:
I write separately to explain what I consider to be the
correct standard to review whether an amended complaint
may be struck because it is factually inconsistent with a prior
complaint in the same case. Inconsistency—even direct
contradiction—between a current complaint and an earlier
one is not a basis for dismissal. PAE Gov’t Servs., Inc. v.
MPRI, Inc., 514 F.3d 856, 859 (9th Cir. 2007). The fact that
the earlier complaint is inconsistent may have collateral
consequences in the litigation, including possible sanctions
under Rule 11 or undermining the plaintiff’s credibility, id. at
859 n.2, but it does not render the current complaint legally
insufficient under Rule 12(b), id. at 860.
The district court relied in part on Reddy v. Litton
Industries, Inc., 912 F.2d 291 (9th Cir. 1990), to deny
Shirley’s motion to amend due to perceived inconsistencies
between his proposed complaint and his earlier complaints.
Reddy, however, addressed a different question: When may
a district court grant a motion to dismiss without leave to
amend on futility grounds? 912 F.2d at 296. And the
unremarkable rule it adopted is that the district court may do
so only if it can conceive of no amendment consistent with
the prior pleadings that would render the complaint
sufficient. Id. at 296–97. The reason for the underlined
limitation is obvious: Absent the Reddy standard, a district
court would never dismiss with prejudice because it would
always hypothesize some amendment, wholly contradicting
prior allegations, that would render the complaint sufficient.
Most cases will fall either under the PAE rule, where the
district court considers the sufficiency of a complaint under
12(b)(6) and inconsistency with prior complaints doesn’t

-- 4 of 6 --

SHIRLEY V. UNIV. OF IDAHO 5
matter, or under Reddy, where the court has to hypothesize
what a plaintiff might allege in an amendment. When a court
reviews a motion for leave to amend that pleads facts
inconsistent with prior complaints the PAE rule controls,
because the rationale of the Reddy rule—the need to provide
a finite universe of possible complaints to judge futility—is
absent. Shirley provided a proposed complaint, so the district
court had no reason to hypothesize about what a future
amendment might have alleged. The district court should
have judged the motion for leave to amend on its own
terms—as PAE commands—without considering whether the
proposed complaint was inconsistent with the prior
complaints.
For this reason I concur in the judgment.
CANBY, Circuit Judge, concurring:
I concur in the order of reversal. I write separately only
because Judge Kozinski has, and my view of the state of our
circuit precedent differs from his.
Reddy v. Litton Industries, Inc., 912 F.2d 291 (9th Cir.
1990), cited by the district court, upheld the dismissal of an
insufficient complaint without leave to amend because no
amendment consistent with prior pleadings could cure the
insufficiency. Reddy made its reason clear: “Although leave
to amend should be liberally granted, the amended complaint
may only allege ‘other facts consistent with the challenged
pleading.’” Id. at 296–97 (quoting Schreiber Distrib. Co. v.
Serv Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
1986)). We have cited Reddy for this proposition as recently

-- 5 of 6 --

SHIRLEY V. UNIV. OF IDAHO 6
as United States v. Corinthian Colleges, 655 F.3d 984, 985
(9th Cir. 2011).
In my view, PAE Gov’t Servs., Inc. v. MPRI, Inc.,
514 F.3d 856 (9th Cir. 2007), is irreconcilable with Reddy
and its rationale. PAE holds that inconsistency with a prior
complaint is not a basis for dismissing a later amended
complaint. Id. at 859. It explains that “[t]he short of it is that
there is nothing in the Federal Rules of Civil Procedure to
prevent a party from filing successive pleadings that make
inconsistent or even contradictory allegations.” Id. at 860.
If our decision of the present appeal required us to depend
on one or the other view of the permissibility of inconsistent
pleading – that of Reddy or that of PAE – I would feel
compelled to call for en banc rehearing to address the
inconsistency in our precedent. See Atonio v. Wards Cove
Packing Co., 810 F.2d 1477, 1478–79 (9th Cir. 1987) (en
banc). Happily, there is no need for en banc proceedings and
their ensuing delay here, because we have concluded that the
proposed amended complaint offered by Shirley was not
actually inconsistent with his prior pleadings. There is
accordingly no reason to address the proper rule concerning
inconsistent pleadings – a subject that I leave to some future
en banc court and upon which I express no opinion.

-- 6 of 6 --