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Prior Dismissals Count as Strikes
The court of appeals for the third and ninth circuits joined the fifth, seventh and tenth circuits in holding that 28 U.S.C. § 1915(g) applies to cases dismissed before the PLRA's April 26, 1996, enactment. Section 1915(g) prohibits prisoners from proceeding with in forma pauperis (IFP) status if on three or more occasions they have had a lawsuit dismissed as being frivolous, malicious or for failing to state a claim. The only exception is if the current suit they seek IFP status for alleges they are in imminent danger of physical harm. The third circuit upheld the retroactivity of section 1915(g) and dismissed the appeal without prejudice to the plaintiff being able to refile the suit in the district court if he paid the filing fee. See: Keener v. PA Board of Probation and Parole , 128 F.3d 143 (3rd Cir. 1997).
The ninth circuit, in a case arising from Washington, held: "Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date. Therefore, regardless of the dates of the dismissals, the analysis is the same: three prior dismissals on the stated grounds equals no in forma pauperis status in new filings, unless the prisoner is in imminent danger of serious physical injury." See: Tierney v. Kupers , 128 F.3d 1310 (9th Cir. 1997).
Tenth Cir. Upholds IFP Provisions: The court of appeals for the tenth circuit held that the PLRA's IFP provisions, requiring full payment of all filing fees, were constitutional. All circuit courts to consider the issue have held likewise. The court also upheld the censorship of the magazine Muhammad Speaks on grounds that it advocates racial and religious hatred. See: Shabazz v. Parsons , 127 F.3d 1246 (10th Cir. 1997).
Bad Faith Appeals: The court of appeals for the District of Columbia circuit held that 28 U.S.C. § 1915(a)(3) precludes prisoners from appealing without full prepayment of the filing fees if the district court certifies that the appeal is not taken in good faith. The issue was one of first impression in that circuit and agrees with the fifth and seventh circuit while disagreeing with the sixth circuit. The ruling is in the context that the plaintiff, Bruce Wooten, had a court order barring him from filing civil actions without leave of the court. He violated the order, was denied leave to file a new suit and tried to appeal that ruling. The appeals court stated: "If he is foolish enough to pay $105 to have us say essentially what we have already said about his case, his appeal may proceed. But if he fails to pay this amount within 14 days, the appeal will be dismissed." See: Wooten v. D.C. Metro Police Dept., 129 F.3d 206 (DC Cir. 1997).
Physical Injury Limit Defined, Wrongly: A federal district court in Texas dismissed a lawsuit as being legally frivolous for not alleging sufficient physical injury under 42 U.S.C. § 1997e(e). Thinh Minh Luong is a Hawaii state prisoner transferred to the Dickens County Corrections Center, a private prison operated by the Bobby Ross Group in Texas. Luong is an admitted long time informant who alerted BRG officials that he was in danger because of the many prisoners he had informed on over the course of the years. No action was taken and on at least four occasions Luong was attacked by other prisoners, suffering bruises, abrasions, swelling, cuts, a bloody nose, etc.
The court held these injuries were insufficient to state a claim for relief under § 1997e(e) because none of the injuries caused lasting disablement or severe pain. Readers should note that this ruling is in direct conflict with he supreme court opinion in Hudson v. McMillian , 503 U.S. 1, 112 S.Ct. 995 (1992), as to what constitutes actionable eighth amendment injury. See: Luong v. Hatt , 979 F. Supp. 481 (ND TX 1997).
Fee Required in Voluntary Dismissal: A federal district court in Nebraska held that the IFP fee requirements of the PLRA, 28 U.S.C. § 1915(b)(2) require payment of the full filing fee even if the prisoner plaintiff later decides to voluntarily dismiss the action. See: Conley v. Henderson , 980 F. Supp. 322 (D NE 1997).
Grievance Exhaustion Required
The court of appeals for the sixth circuit held that 42 U.S.C. § 1997e(a) requires administrative exhaustion of all claims filed after the April 26, 1996, enactment of the Prison Litigation Reform Act (PLRA). Section 1997e(a) states that "no action shall be brought with respect to prison conditions under section 1983... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."
Earl White, a Michigan state prisoner, filed suit seeking monetary and injunctive relief, claiming prison officials retaliated against him after he sued them. The district court dismissed the suit without prejudice under 28 U.S.C. § 1915A for failure to exhaust his administrative remedies under 42 U.S.C. § 1997e(c)(2). The court of appeals affirmed.
The court rejected White's argument that the Michigan DOC's grievance procedure is inadequate. Because the case was dismissed without prejudice, White is free to refile his complaint after exhausting all steps in the Michigan DOC grievance procedure.
Readers should note that some courts are applying § 1997e(a) as conferring subject matter jurisdiction on federal courts to hear prisoners' section 1983 actions and the failure to exhaust administrative remedies is resulting in the dismissal of the lawsuits, with the PLRA filing fees being assessed. See: White v. McGinnis , 131 F.3d 593 (6th Cir. 1997).
The ninth circuit, in a case arising from Washington, held: "Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date. Therefore, regardless of the dates of the dismissals, the analysis is the same: three prior dismissals on the stated grounds equals no in forma pauperis status in new filings, unless the prisoner is in imminent danger of serious physical injury." See: Tierney v. Kupers , 128 F.3d 1310 (9th Cir. 1997).
Tenth Cir. Upholds IFP Provisions: The court of appeals for the tenth circuit held that the PLRA's IFP provisions, requiring full payment of all filing fees, were constitutional. All circuit courts to consider the issue have held likewise. The court also upheld the censorship of the magazine Muhammad Speaks on grounds that it advocates racial and religious hatred. See: Shabazz v. Parsons , 127 F.3d 1246 (10th Cir. 1997).
Bad Faith Appeals: The court of appeals for the District of Columbia circuit held that 28 U.S.C. § 1915(a)(3) precludes prisoners from appealing without full prepayment of the filing fees if the district court certifies that the appeal is not taken in good faith. The issue was one of first impression in that circuit and agrees with the fifth and seventh circuit while disagreeing with the sixth circuit. The ruling is in the context that the plaintiff, Bruce Wooten, had a court order barring him from filing civil actions without leave of the court. He violated the order, was denied leave to file a new suit and tried to appeal that ruling. The appeals court stated: "If he is foolish enough to pay $105 to have us say essentially what we have already said about his case, his appeal may proceed. But if he fails to pay this amount within 14 days, the appeal will be dismissed." See: Wooten v. D.C. Metro Police Dept., 129 F.3d 206 (DC Cir. 1997).
Physical Injury Limit Defined, Wrongly: A federal district court in Texas dismissed a lawsuit as being legally frivolous for not alleging sufficient physical injury under 42 U.S.C. § 1997e(e). Thinh Minh Luong is a Hawaii state prisoner transferred to the Dickens County Corrections Center, a private prison operated by the Bobby Ross Group in Texas. Luong is an admitted long time informant who alerted BRG officials that he was in danger because of the many prisoners he had informed on over the course of the years. No action was taken and on at least four occasions Luong was attacked by other prisoners, suffering bruises, abrasions, swelling, cuts, a bloody nose, etc.
The court held these injuries were insufficient to state a claim for relief under § 1997e(e) because none of the injuries caused lasting disablement or severe pain. Readers should note that this ruling is in direct conflict with he supreme court opinion in Hudson v. McMillian , 503 U.S. 1, 112 S.Ct. 995 (1992), as to what constitutes actionable eighth amendment injury. See: Luong v. Hatt , 979 F. Supp. 481 (ND TX 1997).
Fee Required in Voluntary Dismissal: A federal district court in Nebraska held that the IFP fee requirements of the PLRA, 28 U.S.C. § 1915(b)(2) require payment of the full filing fee even if the prisoner plaintiff later decides to voluntarily dismiss the action. See: Conley v. Henderson , 980 F. Supp. 322 (D NE 1997).
Grievance Exhaustion Required
The court of appeals for the sixth circuit held that 42 U.S.C. § 1997e(a) requires administrative exhaustion of all claims filed after the April 26, 1996, enactment of the Prison Litigation Reform Act (PLRA). Section 1997e(a) states that "no action shall be brought with respect to prison conditions under section 1983... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."
Earl White, a Michigan state prisoner, filed suit seeking monetary and injunctive relief, claiming prison officials retaliated against him after he sued them. The district court dismissed the suit without prejudice under 28 U.S.C. § 1915A for failure to exhaust his administrative remedies under 42 U.S.C. § 1997e(c)(2). The court of appeals affirmed.
The court rejected White's argument that the Michigan DOC's grievance procedure is inadequate. Because the case was dismissed without prejudice, White is free to refile his complaint after exhausting all steps in the Michigan DOC grievance procedure.
Readers should note that some courts are applying § 1997e(a) as conferring subject matter jurisdiction on federal courts to hear prisoners' section 1983 actions and the failure to exhaust administrative remedies is resulting in the dismissal of the lawsuits, with the PLRA filing fees being assessed. See: White v. McGinnis , 131 F.3d 593 (6th Cir. 1997).
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Related legal cases
Tierney v. Kupers
| Year | 1997 |
|---|---|
| Cite | 128 F.3d 1310 (9th Cir. 1997) |
| Level | Court of Appeals |
Tierney v. Kupers, No. 97-35200 (9th Cir. 10/31/1997)
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 97-35200; No. 97-35201
[3] 1997
[4] October 31, 1997
[5] MICHAEL C. TIERNEY, PLAINTIFF-APPELLANT,
v.
HAROLD KUPERS, DEFENDANT-APPELLEE.
MICHAEL C. TIERNEY, PLAINTIFF-APPELLANT,
v.
CRYSTAL CORLISS; LORETTA LOVANO; ANDREA BRYNN, DEFENDANTS-APPELLEES.
[6] D.C. No. CV-96-05958-RJB; D.C. No. CV-96-05959-RJB
[7] Before: William C. Canby, Jr., Thomas G. Nelson, and Andrew J. Kleinfeld, Circuit Judges.
[8] COUNSEL
Michael C. Tierney, Clallam Bay, Washington, Pro se, plaintiff-appellant.
No appearance for the defendants-appellees.
[9] T.G. NELSON, Circuit Judge
[10] OPINION
[11] Appeal from the United States District Court for the Western District of Washington
[12] Robert J. Bryan, District Judge, Presiding
[13] Submitted September 10, 1997 *fn*
[14] Portland, Oregon
[15] Filed October 31, 1997
[16] Opinion by Judge Nelson
[17] OPINION
[18] A 1996 amendment to 28 U.S.C. S 1915 limited the ability of prisoners, if they had filed three previous actions dismissed as frivolous, to proceed in forma pauperis in order to avoid paying filing fees. 28 U.S.C. S 1915(g). Washington state prisoner Michael Tierney appeals pro se the district court's dismissal, pursuant to that section, of his 42 U.S.C. S 1983 actions. We have jurisdiction pursuant to 28 U.S.C.S 1291. Because we conclude that the S 1915(g) calculation includes claims dismissed prior to the effective date of the statute, we affirm.
[19] I.
[20] Effective April 26, 1996, Congress enacted the Prison Litigation Reform Act ("PLRA"). Pub. L. No. 104-134, S 804(g), 110 Stat. 1321 (1996). In part, the PLRA amended the portion of 28 U.S.C. S 1915 which deals with "proceedings in forma pauperis." Specifically, the new law prohibited prisoners from bringing a civil action or appeal in forma pauperis
[21] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. S 1915(g).
[22] On November 5, 1996, Tierney, a prisoner, filed two actions under 42 U.S.C. S 1983, both of which were accompanied by applications to proceed in forma pauperis. Prior to filing his present S 1983 actions, Tierney filed six other actions, while incarcerated in the State of Washington, which were dismissed as frivolous or for failure to state a claim. Four of his civil rights cases were dismissed as frivolous before the effective date of S 1915(g).
[23] After determining that "the current complaint does not involve allegations that would establish [Tierney] is under imminent danger of serious physical injury," the magistrate judge concluded that S 1915(g) "applied to cases dismissed prior to the effective date of the statute." The district court adopted the magistrate judge's recommendation and dismissed both of Tierney's S 1983 actions pursuant to 28 U.S.C. S 1915(g), without prejudice to Tierney re-filing the complaints upon payment of the filing fees. Tierney timely appeals.
[24] II.
[25] A district court's interpretation of a statute is a question of law subject to de novo review. Parravano v. Babbitt, 70 F.3d 539, 543 (9th Cir. 1995), cert. denied, 116 S. Ct. 2546 (1996).
[26] [1] Tierney's claims were properly dismissed. The statute does not state that it only applies to dismissals made after April 26, 1996, the effective date of the Act. Section 1915(g) prohibits in forma pauperis claims brought by prisoners who have, while incarcerated, on "3 or more prior occasions" had claims dismissed due to their frivolity, maliciousness, or failure to state a claim. 28 U.S.C. S 1915(g) (emphasis added). This language makes clear its application to claims dismissed prior to the current proceedings. We conclude that, in light of the purposes of the amendment, its reference to "prior occasions" also must encompass dismissals that preceded the effective date of the act.
[27] [2] The legislative history of S 1915(g) clearly supports our reading of the statute. In support of the PLRA, proponents cited the costliness and common frivolity of prison inmate lawsuits. See, e.g., 141 Cong. Rec. S19,110-07, S19,113 (daily ed. Dec. 21, 1995) (statement of Senator Kyl). They spoke of the Act's potential to act as a deterrent and achieve a 50% reduction in "bogus" federal inmate claims. Id. at S19,114. To interpret the statute as only applying to actions commenced after April 26, 1996, the effective date of the PLRA, would give every prisoner, regardless of the number of prior frivolous suits, three more opportunities to pursue frivolous actions--without paying any filing fees. Multiplying the number of litigious prisoners across the United States by a factor of three potentially frivolous actions per prisoner demonstrates how such an interpretation would frustrate, rather than advance, the congressional goal of reducing frivolous prisoner litigation in federal court.
[28] [3] This case poses no retroactivity concerns under Landgraf v. USI Film Prods., 511 U.S. 244 (1994). In Marks v. Solcum, 98 F.3d 494 (9th Cir. 1996), we determined that 28 U.S.C. S 1915(e)(2), requiring dismissal of in forma pauperis actions deemed frivolous, malicious, or that fail to state a claim, applied to appeals pending in this court on the date of its enactment. Marks, 98 F.3d at 496. In so doing, we held that "[b]ecause section 1915(e)(2) does not impair any substantive rights of prisoners, but instead merely affects the ability of prisoners to maintain appeals in forma pauperis, we conclude that section 1915(e)(2) is a procedural rule which raises no retroactivity concerns under Landgraf ." Id. Because S 1915(g) likewise does not impair any substantive rights of prisoners, but merely affects their ability to proceed in forma pauperis, it also does not raise any retroactivity concerns under Landgraf. See id.
[29] [4] Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date. Therefore, regardless of the dates of the dismissals, the analysis is the same: three prior dismissals on the stated grounds equals no in forma pauperis status in new filings, unless the prisoner is in imminent danger of serious physical injury.
[30] The district court's orders are AFFIRMED.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[31] *fn* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34 (a) and Ninth Circuit Rule 34-4.
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 97-35200; No. 97-35201
[3] 1997
[4] October 31, 1997
[5] MICHAEL C. TIERNEY, PLAINTIFF-APPELLANT,
v.
HAROLD KUPERS, DEFENDANT-APPELLEE.
MICHAEL C. TIERNEY, PLAINTIFF-APPELLANT,
v.
CRYSTAL CORLISS; LORETTA LOVANO; ANDREA BRYNN, DEFENDANTS-APPELLEES.
[6] D.C. No. CV-96-05958-RJB; D.C. No. CV-96-05959-RJB
[7] Before: William C. Canby, Jr., Thomas G. Nelson, and Andrew J. Kleinfeld, Circuit Judges.
[8] COUNSEL
Michael C. Tierney, Clallam Bay, Washington, Pro se, plaintiff-appellant.
No appearance for the defendants-appellees.
[9] T.G. NELSON, Circuit Judge
[10] OPINION
[11] Appeal from the United States District Court for the Western District of Washington
[12] Robert J. Bryan, District Judge, Presiding
[13] Submitted September 10, 1997 *fn*
[14] Portland, Oregon
[15] Filed October 31, 1997
[16] Opinion by Judge Nelson
[17] OPINION
[18] A 1996 amendment to 28 U.S.C. S 1915 limited the ability of prisoners, if they had filed three previous actions dismissed as frivolous, to proceed in forma pauperis in order to avoid paying filing fees. 28 U.S.C. S 1915(g). Washington state prisoner Michael Tierney appeals pro se the district court's dismissal, pursuant to that section, of his 42 U.S.C. S 1983 actions. We have jurisdiction pursuant to 28 U.S.C.S 1291. Because we conclude that the S 1915(g) calculation includes claims dismissed prior to the effective date of the statute, we affirm.
[19] I.
[20] Effective April 26, 1996, Congress enacted the Prison Litigation Reform Act ("PLRA"). Pub. L. No. 104-134, S 804(g), 110 Stat. 1321 (1996). In part, the PLRA amended the portion of 28 U.S.C. S 1915 which deals with "proceedings in forma pauperis." Specifically, the new law prohibited prisoners from bringing a civil action or appeal in forma pauperis
[21] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. S 1915(g).
[22] On November 5, 1996, Tierney, a prisoner, filed two actions under 42 U.S.C. S 1983, both of which were accompanied by applications to proceed in forma pauperis. Prior to filing his present S 1983 actions, Tierney filed six other actions, while incarcerated in the State of Washington, which were dismissed as frivolous or for failure to state a claim. Four of his civil rights cases were dismissed as frivolous before the effective date of S 1915(g).
[23] After determining that "the current complaint does not involve allegations that would establish [Tierney] is under imminent danger of serious physical injury," the magistrate judge concluded that S 1915(g) "applied to cases dismissed prior to the effective date of the statute." The district court adopted the magistrate judge's recommendation and dismissed both of Tierney's S 1983 actions pursuant to 28 U.S.C. S 1915(g), without prejudice to Tierney re-filing the complaints upon payment of the filing fees. Tierney timely appeals.
[24] II.
[25] A district court's interpretation of a statute is a question of law subject to de novo review. Parravano v. Babbitt, 70 F.3d 539, 543 (9th Cir. 1995), cert. denied, 116 S. Ct. 2546 (1996).
[26] [1] Tierney's claims were properly dismissed. The statute does not state that it only applies to dismissals made after April 26, 1996, the effective date of the Act. Section 1915(g) prohibits in forma pauperis claims brought by prisoners who have, while incarcerated, on "3 or more prior occasions" had claims dismissed due to their frivolity, maliciousness, or failure to state a claim. 28 U.S.C. S 1915(g) (emphasis added). This language makes clear its application to claims dismissed prior to the current proceedings. We conclude that, in light of the purposes of the amendment, its reference to "prior occasions" also must encompass dismissals that preceded the effective date of the act.
[27] [2] The legislative history of S 1915(g) clearly supports our reading of the statute. In support of the PLRA, proponents cited the costliness and common frivolity of prison inmate lawsuits. See, e.g., 141 Cong. Rec. S19,110-07, S19,113 (daily ed. Dec. 21, 1995) (statement of Senator Kyl). They spoke of the Act's potential to act as a deterrent and achieve a 50% reduction in "bogus" federal inmate claims. Id. at S19,114. To interpret the statute as only applying to actions commenced after April 26, 1996, the effective date of the PLRA, would give every prisoner, regardless of the number of prior frivolous suits, three more opportunities to pursue frivolous actions--without paying any filing fees. Multiplying the number of litigious prisoners across the United States by a factor of three potentially frivolous actions per prisoner demonstrates how such an interpretation would frustrate, rather than advance, the congressional goal of reducing frivolous prisoner litigation in federal court.
[28] [3] This case poses no retroactivity concerns under Landgraf v. USI Film Prods., 511 U.S. 244 (1994). In Marks v. Solcum, 98 F.3d 494 (9th Cir. 1996), we determined that 28 U.S.C. S 1915(e)(2), requiring dismissal of in forma pauperis actions deemed frivolous, malicious, or that fail to state a claim, applied to appeals pending in this court on the date of its enactment. Marks, 98 F.3d at 496. In so doing, we held that "[b]ecause section 1915(e)(2) does not impair any substantive rights of prisoners, but instead merely affects the ability of prisoners to maintain appeals in forma pauperis, we conclude that section 1915(e)(2) is a procedural rule which raises no retroactivity concerns under Landgraf ." Id. Because S 1915(g) likewise does not impair any substantive rights of prisoners, but merely affects their ability to proceed in forma pauperis, it also does not raise any retroactivity concerns under Landgraf. See id.
[29] [4] Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date. Therefore, regardless of the dates of the dismissals, the analysis is the same: three prior dismissals on the stated grounds equals no in forma pauperis status in new filings, unless the prisoner is in imminent danger of serious physical injury.
[30] The district court's orders are AFFIRMED.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[31] *fn* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34 (a) and Ninth Circuit Rule 34-4.
Keener v. PA Board of Probation & Parole
| Year | 1997 |
|---|---|
| Cite | 128 F.3d 143 (3rd cir. 1997) |
| Level | Court of Appeals |
--------------------------------------------------------------------------------
Keener v. Pennsylvania Board of Probation & Parole, 128 F.3d 143 (3d Cir. 10/17/1997)
[Editor's note: footnotes (if any) trail the opinion]
[1] Filed October 17, 1997
[2] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[3] No. 96-1726
[4] GEORGE K. KEENER
v.
[5] PENNSYLVANIA BOARD OF PROBATION & PAROLE; ROBERT WIENCKOSKI
[6] George K. Keener, Appellant
[7] On Appeal from the United States District Court for the Eastern District of Pennsylvania
[8] (D.C. No. 96-cv-05075)
[9] Submitted Pursuant to Third Circuit LAR 34.1(a) October 2, 1997
[10] Before: SLOVITER, Chief Judge STAPLETON and COWEN Circuit Judges
[11] (Opinion Filed October 17, 1997)
[12] George K. Keener, Dallas, PA
[13] Appellant Pro Se
[14] OPINION OF THE COURT
[15] PER CURIAM.
[16] Appellant George Keener seeks to appeal the order of the district court denying his motion for leave to proceed in that court in forma pauperis pursuant to 28 U.S.C. Section(s) 1915(g). Following the filing of his notice of appeal Keener sought to proceed in this court in forma pauperis and requested appointment of counsel. We have determined that the issue is a straightforward one which can be decided without further briefing, and deny the motion for counsel.
[17] The Prisoner Litigation Reform Act (PLRA), which was enacted on April 26, 1996, precludes a prisoner from proceeding in forma pauperis if that prisoner:
[18] has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
[19] 28 U.S.C. Section(s) 1915(g).
[20] The district court denied Keener's motion to proceed in forma pauperis because he had previously filed numerous civil rights actions which had been dismissed as frivolous by that court. The most recent three were dismissed on July 12, 1995, March 1, 1995, and February 4, 1994, all before the enactment of the PLRA. Thus this appeal requires us to decide whether lawsuits dismissed as frivolous before the enactment of the PLRA can be counted toward the Act's "three strikes" provisions. *fn1
[21] In Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), the Supreme Court directed courts to determine the retroactive application of a new statute which does not expressly prescribe its reach by ascertaining whether its application to pending cases would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed."
[22] Three courts of appeals have already applied those criteria to this provision of the PLRA and ruled that lawsuits dismissed as frivolous prior to the enactment of the PLRA count as "strikes" under Section(s) 1915(g). See Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996); Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996). We see no basis to differ with that result.
[23] We thus now join those circuits in holding that dismissals for frivolousness prior to the passage of the PLRA are included among the three that establish the threshold for requiring a prisoner to pay the full docket fees unless the prisoner can show s/he is "under imminent danger of serious physical injury." The district court noted that nothing in Keener's complaint, in which he appeared to be alleging that he has been hindered in obtaining release on parole after completion of his minimum sentence, suggests that Keener is in any imminent danger of serious physical injury.*fn2
[24] We will therefore deny Keener's motion to proceed in forma pauperis, and dismiss the appeal without prejudice to Keener's right to reinstitute his action in the district court upon payment of full docketing fees. A True Copy: Teste:
[25] Clerk of the United States Court of Appeals for the Third Circuit
***** BEGIN FOOTNOTE(S) HERE *****
[26] *fn1. The district court had subject matter jurisdiction over Keener's 1983 action pursuant to 28 U.S.C. Section(s) 1331. We have appellate jurisdiction pursuant to 28 U.S.C. Section(s) 1291.
[27] *fn2. We have no occasion to consider the statutory provision that counts among the dismissals that are disqualifying those that were dismissed for failure to state a claim upon which relief may be granted, as distinguished from frivolousness. Cf. Mitchell v. Farcass, 112 F.3d 1483, 1491-92 (11th Cir. 1997)(Lay, J. concurring)(discussing constitutional significance of difference between dismissals for frivolousness and failure to state a claim in context of 28 U.S.C. 1915(e)(2)(B), the PLRA provision mandating sua sponte dismissal of in forma pauperis actions that are frivolous or fail to state a claim).
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
19971017
Keener v. Pennsylvania Board of Probation & Parole, 128 F.3d 143 (3d Cir. 10/17/1997)
[Editor's note: footnotes (if any) trail the opinion]
[1] Filed October 17, 1997
[2] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[3] No. 96-1726
[4] GEORGE K. KEENER
v.
[5] PENNSYLVANIA BOARD OF PROBATION & PAROLE; ROBERT WIENCKOSKI
[6] George K. Keener, Appellant
[7] On Appeal from the United States District Court for the Eastern District of Pennsylvania
[8] (D.C. No. 96-cv-05075)
[9] Submitted Pursuant to Third Circuit LAR 34.1(a) October 2, 1997
[10] Before: SLOVITER, Chief Judge STAPLETON and COWEN Circuit Judges
[11] (Opinion Filed October 17, 1997)
[12] George K. Keener, Dallas, PA
[13] Appellant Pro Se
[14] OPINION OF THE COURT
[15] PER CURIAM.
[16] Appellant George Keener seeks to appeal the order of the district court denying his motion for leave to proceed in that court in forma pauperis pursuant to 28 U.S.C. Section(s) 1915(g). Following the filing of his notice of appeal Keener sought to proceed in this court in forma pauperis and requested appointment of counsel. We have determined that the issue is a straightforward one which can be decided without further briefing, and deny the motion for counsel.
[17] The Prisoner Litigation Reform Act (PLRA), which was enacted on April 26, 1996, precludes a prisoner from proceeding in forma pauperis if that prisoner:
[18] has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
[19] 28 U.S.C. Section(s) 1915(g).
[20] The district court denied Keener's motion to proceed in forma pauperis because he had previously filed numerous civil rights actions which had been dismissed as frivolous by that court. The most recent three were dismissed on July 12, 1995, March 1, 1995, and February 4, 1994, all before the enactment of the PLRA. Thus this appeal requires us to decide whether lawsuits dismissed as frivolous before the enactment of the PLRA can be counted toward the Act's "three strikes" provisions. *fn1
[21] In Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), the Supreme Court directed courts to determine the retroactive application of a new statute which does not expressly prescribe its reach by ascertaining whether its application to pending cases would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed."
[22] Three courts of appeals have already applied those criteria to this provision of the PLRA and ruled that lawsuits dismissed as frivolous prior to the enactment of the PLRA count as "strikes" under Section(s) 1915(g). See Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996); Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996). We see no basis to differ with that result.
[23] We thus now join those circuits in holding that dismissals for frivolousness prior to the passage of the PLRA are included among the three that establish the threshold for requiring a prisoner to pay the full docket fees unless the prisoner can show s/he is "under imminent danger of serious physical injury." The district court noted that nothing in Keener's complaint, in which he appeared to be alleging that he has been hindered in obtaining release on parole after completion of his minimum sentence, suggests that Keener is in any imminent danger of serious physical injury.*fn2
[24] We will therefore deny Keener's motion to proceed in forma pauperis, and dismiss the appeal without prejudice to Keener's right to reinstitute his action in the district court upon payment of full docketing fees. A True Copy: Teste:
[25] Clerk of the United States Court of Appeals for the Third Circuit
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[26] *fn1. The district court had subject matter jurisdiction over Keener's 1983 action pursuant to 28 U.S.C. Section(s) 1331. We have appellate jurisdiction pursuant to 28 U.S.C. Section(s) 1291.
[27] *fn2. We have no occasion to consider the statutory provision that counts among the dismissals that are disqualifying those that were dismissed for failure to state a claim upon which relief may be granted, as distinguished from frivolousness. Cf. Mitchell v. Farcass, 112 F.3d 1483, 1491-92 (11th Cir. 1997)(Lay, J. concurring)(discussing constitutional significance of difference between dismissals for frivolousness and failure to state a claim in context of 28 U.S.C. 1915(e)(2)(B), the PLRA provision mandating sua sponte dismissal of in forma pauperis actions that are frivolous or fail to state a claim).
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[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
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