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PLRA "Three Strikes" Provision Upheld and Discussed
PLRA "Three Strikes" Provision Upheld and Discussed
The ostensible purpose of the Prison Litigation Reform Act (PLRA) was to curtail frivolous litigation by prisoners. 28 U.S.C. § 1915(g) was enacted which does not allow In Forma Pauperis (IFP) status for prisoners that have had three or more lawsuits dismissed as frivolous, malicious, for failing to state a claim upon which relief can be granted or suing a defendant for money damages if the defendant is immune from such relief, unless the plaintiff is in imminent danger of serious physical injury.
Since the hallmark of the frivolous litigant is not doing any research whatsoever we won't dwell at length on the topic nor will we cover this aspect of the PLRA in future issues.
While § 1915(g) appeared to be the fee provision of the PLRA most likely to be held unconstitutional because it prevents indigent prisoners from filing suit, the circuit courts have uniformly upheld it. The Sixth, Eighth, Tenth and Eleventh circuits have upheld § 1915(g) against a broad array of constitutional challenges. The courts held the provision does not violate any constitutional rights because frivolous litigants can still file lawsuits, they just have to prepay the filing fee. See: Wilson v. Yaklich, 148 F.3d 596 (6th Cir. 1998); Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998) and White v. State of Colorado, 157 F.3d 1226 (10th Cir. 1998).
Frivolous litigators have been unsuccessful in weaseling around § 1915(g)'s ban on IFP status. The court of appeals for the Fifth circuit held that a frivolous litigant could not use a writ of mandamus to appeal the denial of IFP status by a district court. To appeal the denial of IFP status the prisoner must prepay the filing fee for the appeal. See: In Re Crittendon, 143 F.3d 919 (5th Cir. 1998).
The Tenth circuit has held that when a prisoner was improperly granted IFP status despite having had three previous suits dismissed as frivolous, the remedy was to dismiss the appeal unless the prisoner paid the entire filing fee. See:.Young v. Miller, 144 F.3d 1298 (10th Cir. 1998).
The ostensible purpose of the Prison Litigation Reform Act (PLRA) was to curtail frivolous litigation by prisoners. 28 U.S.C. § 1915(g) was enacted which does not allow In Forma Pauperis (IFP) status for prisoners that have had three or more lawsuits dismissed as frivolous, malicious, for failing to state a claim upon which relief can be granted or suing a defendant for money damages if the defendant is immune from such relief, unless the plaintiff is in imminent danger of serious physical injury.
Since the hallmark of the frivolous litigant is not doing any research whatsoever we won't dwell at length on the topic nor will we cover this aspect of the PLRA in future issues.
While § 1915(g) appeared to be the fee provision of the PLRA most likely to be held unconstitutional because it prevents indigent prisoners from filing suit, the circuit courts have uniformly upheld it. The Sixth, Eighth, Tenth and Eleventh circuits have upheld § 1915(g) against a broad array of constitutional challenges. The courts held the provision does not violate any constitutional rights because frivolous litigants can still file lawsuits, they just have to prepay the filing fee. See: Wilson v. Yaklich, 148 F.3d 596 (6th Cir. 1998); Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998) and White v. State of Colorado, 157 F.3d 1226 (10th Cir. 1998).
Frivolous litigators have been unsuccessful in weaseling around § 1915(g)'s ban on IFP status. The court of appeals for the Fifth circuit held that a frivolous litigant could not use a writ of mandamus to appeal the denial of IFP status by a district court. To appeal the denial of IFP status the prisoner must prepay the filing fee for the appeal. See: In Re Crittendon, 143 F.3d 919 (5th Cir. 1998).
The Tenth circuit has held that when a prisoner was improperly granted IFP status despite having had three previous suits dismissed as frivolous, the remedy was to dismiss the appeal unless the prisoner paid the entire filing fee. See:.Young v. Miller, 144 F.3d 1298 (10th Cir. 1998).
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Related legal cases
Young v. Miller
| Year | 1998 |
|---|---|
| Cite | 144 F.3d 1298 (10th Cir. 1998) |
| Level | Court of Appeals |
Young v. Miller, 144 F.3d 1298 (10th Cir. 05/12/1998)
[1] U.S. Court of Appeals, Tenth Circuit
[2] No. 97-3356
[4] May 12, 1998
[5] RANDY YOUNG, PLAINTIFF - APPELLANT,
v.
PRESON MILLER, SUPERINTENDENT PAROLE OFFICE; KELLY FUNK, PAROLE OFFICER; ROBERT HARRISON, DEPUTY SECRETARY OF CORRECTIONS; NOLEN ATKISON, CAPTAIN JAIL ADMINISTRATOR, DEFENDANTS - APPELLEES.
[6] Before Anderson, McKAY, and Lucero, Circuit Judges.
[7] The opinion of the court was delivered by: Stephen H. Anderson, Circuit Judge
[8] (D. Kansas)
[9] (D.C. No. 94-CV-3462-DES)
[10] ORDER
[11] Randy Young appeals the district court's dismissal of his in forma pauperis civil rights action. Young contends that the district court erred in dismissing his claims for mental cruelty and false imprisonment as legally frivolous.
[12] Young commenced this action in the district court before the effective date of the Prison Litigation Reform Act of 1996 ("PLRA"). Pursuant to the rules then in effect, the district court granted Young's motion to proceed in forma pauperis without requiring any payment. R. Vol. I, Doc. 3. By the time this appeal was taken, however, the PLRA had substantially changed the requirements for prisoners seeking to proceed in forma pauperis. Thus, the district court noted the applicability of the PLRA in its order which granted Young leave to appeal in forma pauperis, and its grant included an order requiring Young to pay the filing fees due on appeal through periodic assessments pursuant to 28 U.S.C. § 1915(b)(2). *fn1 Order dated December 4, 1997, R. Vol. I, Doc. 19 at 2.
[13] However, in addition to requiring installment payments, the Prison Litigation Reform Act imposes further restrictions on prisoners' ability to proceed in forma pauperis. Title 28 U.S.C. § 1915(g) generally prevents a prisoner from proceeding in forma pauperis in any civil action or appeal, if, on three or more prior occasions, the prisoner has brought an action or an appeal which has been dismissed as frivolous or malicious, or for failure to state a claim. Id.; Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996).
[14] As the record indicates, Young's current appeal involves an action which was dismissed as legally frivolous. Pursuant to § 1915(g), the district court's order of dismissal in this case counts as a "prior occasion." Moreover, a review of previously-filed cases by Young indicates two prior dismissals for failure to state a claim. See Young v. Knight, No. 96-3485-GTV (D. Kan. Nov. 15, 1996) (dismissing the claim of mental anguish for failure to state a claim); Young v. Knight, No. 96-3397, 1997 WL 297692, at *2 (10th Cir. June 5, 1997) (agreeing with the district court, finding the claim for mental anguish failed to state a claim for relief, and counting the appellate dismissal as a "prior occasion" under § 1915(g)).
[15] Accordingly, Young has three "prior occasions" under § 1915(g), and, unless he is in imminent danger of serious physical injury, he cannot proceed under the in forma pauperis provisions. Therefore, the district court erred in granting Young's motion to proceed in forma pauperis, and this appeal was not properly filed.
[16] For the reasons stated above, we VACATE the district court's order dated December 4, 1997, and we direct Young to pay the full filing fee for this appeal within thirty days. Should Young fail to pay the filing fee as directed, this appeal shall be dismissed. *fn2
[17] ENTERED FOR THE COURT
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Opinion Footnotes
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[18] *fn1 In relevant part, the district court's order provided: At the commencement of this action, plaintiff was granted leave to proceed in forma pauperis. Since that time, filing fees have been imposed against plaintiff pursuant to the provisions of the Prison Litigation Reform Act in Case No. 96-3485. Because plaintiff has not yet satisfied these fee obligations, the court grants leave to proceed on appeal in forma pauperis without payment of an initial partial appellate filing fee. Plaintiff's payments toward the $105.00 appellate filing fee will commence upon satisfaction of the fee obligations already assessed in Case No. 96-3485 and will be calculated according to 28 U.S.C. § 1915(b)(2). Plaintiff is directed to cooperate with his custodian and any future custodian to authorize the disbursement of funds to satisfy these payments. The Finance Officer of the facility where plaintiff is housed will be advised by a copy of this order of these assessments. R. Vol. I, Doc. 19 at 2.
[19] *fn2 We further direct the clerk of this court not to accept any further appeals of judgments in civil actions or proceedings or any extraordinary writs in non-criminal matters, other than habeas, from Young unless he pays the filing fees established by our rules.
[1] U.S. Court of Appeals, Tenth Circuit
[2] No. 97-3356
[4] May 12, 1998
[5] RANDY YOUNG, PLAINTIFF - APPELLANT,
v.
PRESON MILLER, SUPERINTENDENT PAROLE OFFICE; KELLY FUNK, PAROLE OFFICER; ROBERT HARRISON, DEPUTY SECRETARY OF CORRECTIONS; NOLEN ATKISON, CAPTAIN JAIL ADMINISTRATOR, DEFENDANTS - APPELLEES.
[6] Before Anderson, McKAY, and Lucero, Circuit Judges.
[7] The opinion of the court was delivered by: Stephen H. Anderson, Circuit Judge
[8] (D. Kansas)
[9] (D.C. No. 94-CV-3462-DES)
[10] ORDER
[11] Randy Young appeals the district court's dismissal of his in forma pauperis civil rights action. Young contends that the district court erred in dismissing his claims for mental cruelty and false imprisonment as legally frivolous.
[12] Young commenced this action in the district court before the effective date of the Prison Litigation Reform Act of 1996 ("PLRA"). Pursuant to the rules then in effect, the district court granted Young's motion to proceed in forma pauperis without requiring any payment. R. Vol. I, Doc. 3. By the time this appeal was taken, however, the PLRA had substantially changed the requirements for prisoners seeking to proceed in forma pauperis. Thus, the district court noted the applicability of the PLRA in its order which granted Young leave to appeal in forma pauperis, and its grant included an order requiring Young to pay the filing fees due on appeal through periodic assessments pursuant to 28 U.S.C. § 1915(b)(2). *fn1 Order dated December 4, 1997, R. Vol. I, Doc. 19 at 2.
[13] However, in addition to requiring installment payments, the Prison Litigation Reform Act imposes further restrictions on prisoners' ability to proceed in forma pauperis. Title 28 U.S.C. § 1915(g) generally prevents a prisoner from proceeding in forma pauperis in any civil action or appeal, if, on three or more prior occasions, the prisoner has brought an action or an appeal which has been dismissed as frivolous or malicious, or for failure to state a claim. Id.; Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996).
[14] As the record indicates, Young's current appeal involves an action which was dismissed as legally frivolous. Pursuant to § 1915(g), the district court's order of dismissal in this case counts as a "prior occasion." Moreover, a review of previously-filed cases by Young indicates two prior dismissals for failure to state a claim. See Young v. Knight, No. 96-3485-GTV (D. Kan. Nov. 15, 1996) (dismissing the claim of mental anguish for failure to state a claim); Young v. Knight, No. 96-3397, 1997 WL 297692, at *2 (10th Cir. June 5, 1997) (agreeing with the district court, finding the claim for mental anguish failed to state a claim for relief, and counting the appellate dismissal as a "prior occasion" under § 1915(g)).
[15] Accordingly, Young has three "prior occasions" under § 1915(g), and, unless he is in imminent danger of serious physical injury, he cannot proceed under the in forma pauperis provisions. Therefore, the district court erred in granting Young's motion to proceed in forma pauperis, and this appeal was not properly filed.
[16] For the reasons stated above, we VACATE the district court's order dated December 4, 1997, and we direct Young to pay the full filing fee for this appeal within thirty days. Should Young fail to pay the filing fee as directed, this appeal shall be dismissed. *fn2
[17] ENTERED FOR THE COURT
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[18] *fn1 In relevant part, the district court's order provided: At the commencement of this action, plaintiff was granted leave to proceed in forma pauperis. Since that time, filing fees have been imposed against plaintiff pursuant to the provisions of the Prison Litigation Reform Act in Case No. 96-3485. Because plaintiff has not yet satisfied these fee obligations, the court grants leave to proceed on appeal in forma pauperis without payment of an initial partial appellate filing fee. Plaintiff's payments toward the $105.00 appellate filing fee will commence upon satisfaction of the fee obligations already assessed in Case No. 96-3485 and will be calculated according to 28 U.S.C. § 1915(b)(2). Plaintiff is directed to cooperate with his custodian and any future custodian to authorize the disbursement of funds to satisfy these payments. The Finance Officer of the facility where plaintiff is housed will be advised by a copy of this order of these assessments. R. Vol. I, Doc. 19 at 2.
[19] *fn2 We further direct the clerk of this court not to accept any further appeals of judgments in civil actions or proceedings or any extraordinary writs in non-criminal matters, other than habeas, from Young unless he pays the filing fees established by our rules.
Ashley v. Dilworth
| Year | 1998 |
|---|---|
| Cite | 147 F.3d 715 (8th Cir. 1998) |
| Level | Court of Appeals |
Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 06/19/1998)
[1] U.S. Court of Appeals, Eighth Circuit
[2] No. 97-4082
[4] June 19, 1998
[5] RICKY ASHLEY, APPELLANT,
v.
E. DILWORTH, CO-1, MAXIMUM SECURITY UNIT, ARKANSAS DEPARTMENT OF CORRECTION, APPELLEE.
[6] Before Fagg, Beam, and Hansen, Circuit Judges.
[7] The opinion of the court was delivered by: Per Curiam.
[8] Submitted: April 16, 1998
[9] Appeal from the United States District Court for the Eastern District of Arkansas.
[10] [PUBLISHED]
[11] Ricky Ashley brought a 42 U.S.C. § 1983 action in July 1997, claiming that defendant prison officials caused him to suffer injury when they repeatedly placed him in proximity to inmates on his enemy alert list. The district court denied him in forma pauperis (IFP) status under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), and dismissed his complaint without prejudice, and Ashley appeals. We reverse and remand for further proceedings.
[12] In denying leave to proceed IFP, the district court found that Ashley had made the requisite poverty showing under 28 U.S.C. § 1915(a), but that he had had at least three prior complaints dismissed as frivolous, had not alleged any facts to indicate he was under imminent danger of serious physical injury, and was thus ineligible for IFP status under section 1915(g) (prisoner may not bring civil action or appeal if prisoner has had three prior actions or appeals dismissed for frivolousness, maliciousness, or failure to state a claim, "unless the prisoner is under imminent danger of serious physical injury"). While denying Ashley leave to file his complaint IFP, the district court did grant him leave to proceed IFP on appeal. Ashley continues to argue that he is in imminent danger of physical injury by defendants' repeated placement of him around his enemies.
[13] The in forma pauperis statute, 28 U.S.C. § 1915, was substantially amended by the Prison Litigation Reform Act of 1995. *fn1 The purpose of the Act was to require all prisoner-litigants to pay filing fees in full, with the only issue being whether the inmate pays the entire filing fee at the initiation of the proceeding or in installments over a period of time. See Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). Section 1915(g) denies the installment payment method to those prisoners who have had three previous cases or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted ("three strikes"). We stress that the Act does not close the courthouse doors to prisoners who frequently file frivolous lawsuits; rather, it merely makes them pay the full ordinary filing fees sooner rather than later.
[14] There is one exception to the "three strikes" rule: Section 1915(g) further provides that, even if a prisoner has exhausted his three strikes, he will be permitted to proceed IFP (i.e., pay the filing fee in installments rather than up front) if he is under imminent danger of serious physical injury. As the statute's use of the present tense verbs "bring" and "is" demonstrates, an otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at the time of filing. Allegations that the prisoner has faced imminent danger in the past are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan. Contra Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997) (proper focus must be the imminent danger faced by the inmate at the time of the alleged incident and not at the time the complaint is filed).
[15] After a careful review of the pleadings, we agree with Ashley that he sufficiently alleged imminent danger of serious physical injury to meet the exception to the "three strikes" rule of section 1915(g). According to the sworn allegations of his amended complaint, Ashley first notified defendants in September 1993 that he was being placed near inmates on his enemy list. In June 1996, defendants threatened to transfer him so as to place him near an enemy, intending that he be harmed, and in July 1996, he actually was placed near his enemy and was attacked with a sharpened, nine-inch screwdriver. Ashley again notified defendants in May 1997 of his placement near listed enemies, and on June 28, 1997, he was again attacked by the same enemy who was then armed with a butcher knife, as a result of defendants' actions. Ashley supported the allegations of his complaint with documentary evidence, including corroborative prison disciplinary reports. In short, because Ashley has properly alleged an ongoing danger, and because his complaint was filed very shortly after the last attack, we conclude that Ashley meets the imminent danger exception in § 1915(g).
[16] Accordingly, we reverse the judgment of the district court and remand the case for further proceedings with directions that Ashley be permitted to file his complaint pursuant to § 1915 without the full payment of the filing fee up front.
[17] BEAM, Circuit Judge, Dissenting.
[18] I respectfully Dissent from that portion of the court's that will allow a prisoner to utilize section 1915(g) to assert a claim for past damages. In my view, the court today creates "a loophole Congress surely did not intend in its stated goal of discouraging frivolous and abusive prison lawsuits." In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997) (quotations omitted). Here, Ashley seeks compensatory and punitive damages for alleged events that are months--if not years-- old, as well as declaratory and injunctive relief of a more immediate nature. Under the statute, I believe we are limited by the "three strikes" provision to the remedy of prospective relief only.
[19] Congress enacted the Prison Litigation Reform Act with the principal purpose of deterring frivolous prisoner litigation by instituting economic costs for prisoners wishing to file civil claims. Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997). To that end, it created a system of "monetary and procedural disincentives to the filing of meritless cases." Christiansen v. Clarke, 1998 WL 271536, *2 (8th Cir. May 29, 1998). That system withstands Constitutional scrutiny. Id. at *3.
[20] The "three strikes" provision directs that prisoners who have had three previous civil suits or appeals dismissed as malicious, frivolous, or for failure to state a claim must prepay the entire filing fee. 28 U.S.C. § 1915(g). In passing the "three strikes" provision, members of Congress stated that the purpose of the provision is to require prisoners to pay for filing a lawsuit in the same way as nonprisoners. See Lyon, 127 F.3d at 767 (Heaney, J., Dissenting). The requirement of up-front payment for repeat frivolous filers has one narrow and important exception: a prisoner who "is under imminent danger of serious physical injury" will be permitted to file in forma pauperis (IFP) and to make installment payments. 28 U.S.C. § 1915(g).
[21] By requiring that the prisoner "is," in imminent danger of being physically harmed, the statute implies that his or her remedy is protection from such harm. In other words, by its plain language, the statute limits the relief we can offer such a prisoner to prospective relief for the actions that have caused the immediate risk of harm. There is no authority for a wholesale consideration of issues unrelated to the threat of imminent danger. But see Gibbs v. Roman, 116 F.3d 83, 87 n.7 (3d Cir. 1997). I find no authority under this statutory exception to file a lawsuit on the installment plan seeking an award of damages for alleged actions that have happened in the past. Relevant as such actions may be as evidence of a risk of present danger, they cannot form the basis of a claim for which a prisoner can obtain IFP status under this narrow exception. Such a prisoner is, of course, free to pursue such a claim and pay for it. We are concerned here with the narrow circumstance in which a court can and should allow a prisoner who is in immediate danger of harm to proceed IFP. Accordingly, to the extent that today's decision will allow Ashley to seek damages for alleged events dating back to 1993, I respectfully Dissent.
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Opinion Footnotes
--------------------------------------------------------------------------------
[22] *fn1 Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996) (codified at 28 U.S.C. § 1915 (West Supp. 1997)).
[1] U.S. Court of Appeals, Eighth Circuit
[2] No. 97-4082
[4] June 19, 1998
[5] RICKY ASHLEY, APPELLANT,
v.
E. DILWORTH, CO-1, MAXIMUM SECURITY UNIT, ARKANSAS DEPARTMENT OF CORRECTION, APPELLEE.
[6] Before Fagg, Beam, and Hansen, Circuit Judges.
[7] The opinion of the court was delivered by: Per Curiam.
[8] Submitted: April 16, 1998
[9] Appeal from the United States District Court for the Eastern District of Arkansas.
[10] [PUBLISHED]
[11] Ricky Ashley brought a 42 U.S.C. § 1983 action in July 1997, claiming that defendant prison officials caused him to suffer injury when they repeatedly placed him in proximity to inmates on his enemy alert list. The district court denied him in forma pauperis (IFP) status under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), and dismissed his complaint without prejudice, and Ashley appeals. We reverse and remand for further proceedings.
[12] In denying leave to proceed IFP, the district court found that Ashley had made the requisite poverty showing under 28 U.S.C. § 1915(a), but that he had had at least three prior complaints dismissed as frivolous, had not alleged any facts to indicate he was under imminent danger of serious physical injury, and was thus ineligible for IFP status under section 1915(g) (prisoner may not bring civil action or appeal if prisoner has had three prior actions or appeals dismissed for frivolousness, maliciousness, or failure to state a claim, "unless the prisoner is under imminent danger of serious physical injury"). While denying Ashley leave to file his complaint IFP, the district court did grant him leave to proceed IFP on appeal. Ashley continues to argue that he is in imminent danger of physical injury by defendants' repeated placement of him around his enemies.
[13] The in forma pauperis statute, 28 U.S.C. § 1915, was substantially amended by the Prison Litigation Reform Act of 1995. *fn1 The purpose of the Act was to require all prisoner-litigants to pay filing fees in full, with the only issue being whether the inmate pays the entire filing fee at the initiation of the proceeding or in installments over a period of time. See Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). Section 1915(g) denies the installment payment method to those prisoners who have had three previous cases or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted ("three strikes"). We stress that the Act does not close the courthouse doors to prisoners who frequently file frivolous lawsuits; rather, it merely makes them pay the full ordinary filing fees sooner rather than later.
[14] There is one exception to the "three strikes" rule: Section 1915(g) further provides that, even if a prisoner has exhausted his three strikes, he will be permitted to proceed IFP (i.e., pay the filing fee in installments rather than up front) if he is under imminent danger of serious physical injury. As the statute's use of the present tense verbs "bring" and "is" demonstrates, an otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at the time of filing. Allegations that the prisoner has faced imminent danger in the past are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan. Contra Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997) (proper focus must be the imminent danger faced by the inmate at the time of the alleged incident and not at the time the complaint is filed).
[15] After a careful review of the pleadings, we agree with Ashley that he sufficiently alleged imminent danger of serious physical injury to meet the exception to the "three strikes" rule of section 1915(g). According to the sworn allegations of his amended complaint, Ashley first notified defendants in September 1993 that he was being placed near inmates on his enemy list. In June 1996, defendants threatened to transfer him so as to place him near an enemy, intending that he be harmed, and in July 1996, he actually was placed near his enemy and was attacked with a sharpened, nine-inch screwdriver. Ashley again notified defendants in May 1997 of his placement near listed enemies, and on June 28, 1997, he was again attacked by the same enemy who was then armed with a butcher knife, as a result of defendants' actions. Ashley supported the allegations of his complaint with documentary evidence, including corroborative prison disciplinary reports. In short, because Ashley has properly alleged an ongoing danger, and because his complaint was filed very shortly after the last attack, we conclude that Ashley meets the imminent danger exception in § 1915(g).
[16] Accordingly, we reverse the judgment of the district court and remand the case for further proceedings with directions that Ashley be permitted to file his complaint pursuant to § 1915 without the full payment of the filing fee up front.
[17] BEAM, Circuit Judge, Dissenting.
[18] I respectfully Dissent from that portion of the court's that will allow a prisoner to utilize section 1915(g) to assert a claim for past damages. In my view, the court today creates "a loophole Congress surely did not intend in its stated goal of discouraging frivolous and abusive prison lawsuits." In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997) (quotations omitted). Here, Ashley seeks compensatory and punitive damages for alleged events that are months--if not years-- old, as well as declaratory and injunctive relief of a more immediate nature. Under the statute, I believe we are limited by the "three strikes" provision to the remedy of prospective relief only.
[19] Congress enacted the Prison Litigation Reform Act with the principal purpose of deterring frivolous prisoner litigation by instituting economic costs for prisoners wishing to file civil claims. Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997). To that end, it created a system of "monetary and procedural disincentives to the filing of meritless cases." Christiansen v. Clarke, 1998 WL 271536, *2 (8th Cir. May 29, 1998). That system withstands Constitutional scrutiny. Id. at *3.
[20] The "three strikes" provision directs that prisoners who have had three previous civil suits or appeals dismissed as malicious, frivolous, or for failure to state a claim must prepay the entire filing fee. 28 U.S.C. § 1915(g). In passing the "three strikes" provision, members of Congress stated that the purpose of the provision is to require prisoners to pay for filing a lawsuit in the same way as nonprisoners. See Lyon, 127 F.3d at 767 (Heaney, J., Dissenting). The requirement of up-front payment for repeat frivolous filers has one narrow and important exception: a prisoner who "is under imminent danger of serious physical injury" will be permitted to file in forma pauperis (IFP) and to make installment payments. 28 U.S.C. § 1915(g).
[21] By requiring that the prisoner "is," in imminent danger of being physically harmed, the statute implies that his or her remedy is protection from such harm. In other words, by its plain language, the statute limits the relief we can offer such a prisoner to prospective relief for the actions that have caused the immediate risk of harm. There is no authority for a wholesale consideration of issues unrelated to the threat of imminent danger. But see Gibbs v. Roman, 116 F.3d 83, 87 n.7 (3d Cir. 1997). I find no authority under this statutory exception to file a lawsuit on the installment plan seeking an award of damages for alleged actions that have happened in the past. Relevant as such actions may be as evidence of a risk of present danger, they cannot form the basis of a claim for which a prisoner can obtain IFP status under this narrow exception. Such a prisoner is, of course, free to pursue such a claim and pay for it. We are concerned here with the narrow circumstance in which a court can and should allow a prisoner who is in immediate danger of harm to proceed IFP. Accordingly, to the extent that today's decision will allow Ashley to seek damages for alleged events dating back to 1993, I respectfully Dissent.
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Opinion Footnotes
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[22] *fn1 Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996) (codified at 28 U.S.C. § 1915 (West Supp. 1997)).
Evans v. Illinois DOC
| Year | 1998 |
|---|---|
| Cite | 150 F.3d 810 (7th Cir. 1998) |
| Level | Court of Appeals |
Evans v. Illinois Department of Corrections, 150 F.3d 810 (7th Cir. 08/05/1998)
[1] U.S. Court of Appeals, Seventh Circuit
[2] Nos. 98-1461 & 98-2050
[4] August 05, 1998
[5] WILLIAM A. EVANS, PLAINTIFF-APPELLANT,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS, DEFENDANT-APPELLEE, AARON B. SCRUGGS, PLAINTIFF-APPELLANT,
v.
EDWARD COHN, ET AL., DEFENDANTS-APPELLEES.
[6] The opinion of the court was delivered by: Cummings, Circuit Judge.
[7] Appeal from the United States District Court for the Southern District of Illinois. No. 98-058-JPG--J. Phil Gilbert, Chief Judge.
[8] Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 96-1102-C-B/S--Sarah Evans Barker, Chief Judge.
[9] Submitted July 13, 1998
[10] We have consolidated for consideration and decision two cases to specify what information district courts must include in orders denying leave to proceed in forma pauperis because the prisoner has accrued "three strikes" under the Prison Litigation Reform Act of 1996 (PLRA), Pub. L. 104-134, Title VIII, 110 Stat. 1321. Under the PLRA, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis 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.
[11] 28 U.S.C. sec. 1915(g). When determining whether a prisoner has acquired three strikes under sec. 1915(g), courts must consider prisoner actions dismissed on any of the three enumerated grounds both before and after the PLRA's enactment. See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996). On appeal, we review de novo a district court's three-strike determination. See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998).
[12] In the first of the consolidated cases, Evans v. Illinois Dep't of Corrections, No. 98-1461, the district court denied leave to proceed in forma pauperis because Evans previously had three or more actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim. Additionally, the district court noted three separate examples: Evans Bey v. Washington, 96-666-JPG; Evans Bey v. Hartwig, 97-191-WDS; and Evans Bey v. Hartwig, 97-241-WLB. This was sufficient to put Evans on notice as to what the district court considered when denying his request to proceed in forma pauperis. Having been notified, Evans bore the burden of showing that the district court incorrectly assessed his litigation history. However, in his Rule 24 motion, Evans does not dispute that he has accumulated three strikes and, therefore, we will not reevaluate the district court's Conclusion. Because Evans has previously filed at least three actions which were dismissed as frivolous, malicious, or for failure to state a claim, we deny his request to proceed in forma pauperis on appeal. Evans has 14 days to pay the full $105 filing fee or his appeal will be dismissed for failure to pay the filing fee. See Newlin v. Helman, 123 F.3d 429, 433-34 (7th Cir.), cert. denied by Robinson v. Smith, 118 S. Ct. 707 (1998).
[13] In the second of the consolidated cases, Scruggs v. Cohn, No. 98-2050, the district court determined that Scruggs was prohibited under sec. 1915(g) from proceeding in forma pauperis on appeal but did not specify which cases it relied on when making that determination. Without this information, Scruggs did not have an adequate opportunity to contest the district court's three-strike determination. Accordingly, this case is remanded for the limited purpose of requiring the district court to identify the cases it relied on when it determined that Scruggs had accumulated "three strikes." Scruggs may then reapply for leave to proceed in forma pauperis with this court. If the prisoner does not contest the district court's Conclusions regarding his or her litigation history, we shall conclude that the district court was correct and deny leave to proceed in forma pauperis.
[14] The requirement that district courts identify the cases found to constitute strikes should not be overly burdensome given the fact that the district court must review a prisoner's litigation history prior to ruling on the prisoner's request to proceed in forma pauperis. Consequently, we hold that in the order denying leave to proceed in forma pauperis the district court must cite specifically the case names, case docket numbers, districts in which the actions were filed, and the dates of the orders dismissing the actions.
[15] In summary, in appeal No. 98-1461 leave to proceed on appeal in forma paupers is DENIED and Evans has 14 days to pay the $105 filing fee or his case will be dismissed. Appeal No. 98-2050 is REMANDED for the limited purpose of requiring the district court to identify the cases it concluded constituted Scruggs's "three strikes."
[1] U.S. Court of Appeals, Seventh Circuit
[2] Nos. 98-1461 & 98-2050
[4] August 05, 1998
[5] WILLIAM A. EVANS, PLAINTIFF-APPELLANT,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS, DEFENDANT-APPELLEE, AARON B. SCRUGGS, PLAINTIFF-APPELLANT,
v.
EDWARD COHN, ET AL., DEFENDANTS-APPELLEES.
[6] The opinion of the court was delivered by: Cummings, Circuit Judge.
[7] Appeal from the United States District Court for the Southern District of Illinois. No. 98-058-JPG--J. Phil Gilbert, Chief Judge.
[8] Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 96-1102-C-B/S--Sarah Evans Barker, Chief Judge.
[9] Submitted July 13, 1998
[10] We have consolidated for consideration and decision two cases to specify what information district courts must include in orders denying leave to proceed in forma pauperis because the prisoner has accrued "three strikes" under the Prison Litigation Reform Act of 1996 (PLRA), Pub. L. 104-134, Title VIII, 110 Stat. 1321. Under the PLRA, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis 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.
[11] 28 U.S.C. sec. 1915(g). When determining whether a prisoner has acquired three strikes under sec. 1915(g), courts must consider prisoner actions dismissed on any of the three enumerated grounds both before and after the PLRA's enactment. See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996). On appeal, we review de novo a district court's three-strike determination. See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998).
[12] In the first of the consolidated cases, Evans v. Illinois Dep't of Corrections, No. 98-1461, the district court denied leave to proceed in forma pauperis because Evans previously had three or more actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim. Additionally, the district court noted three separate examples: Evans Bey v. Washington, 96-666-JPG; Evans Bey v. Hartwig, 97-191-WDS; and Evans Bey v. Hartwig, 97-241-WLB. This was sufficient to put Evans on notice as to what the district court considered when denying his request to proceed in forma pauperis. Having been notified, Evans bore the burden of showing that the district court incorrectly assessed his litigation history. However, in his Rule 24 motion, Evans does not dispute that he has accumulated three strikes and, therefore, we will not reevaluate the district court's Conclusion. Because Evans has previously filed at least three actions which were dismissed as frivolous, malicious, or for failure to state a claim, we deny his request to proceed in forma pauperis on appeal. Evans has 14 days to pay the full $105 filing fee or his appeal will be dismissed for failure to pay the filing fee. See Newlin v. Helman, 123 F.3d 429, 433-34 (7th Cir.), cert. denied by Robinson v. Smith, 118 S. Ct. 707 (1998).
[13] In the second of the consolidated cases, Scruggs v. Cohn, No. 98-2050, the district court determined that Scruggs was prohibited under sec. 1915(g) from proceeding in forma pauperis on appeal but did not specify which cases it relied on when making that determination. Without this information, Scruggs did not have an adequate opportunity to contest the district court's three-strike determination. Accordingly, this case is remanded for the limited purpose of requiring the district court to identify the cases it relied on when it determined that Scruggs had accumulated "three strikes." Scruggs may then reapply for leave to proceed in forma pauperis with this court. If the prisoner does not contest the district court's Conclusions regarding his or her litigation history, we shall conclude that the district court was correct and deny leave to proceed in forma pauperis.
[14] The requirement that district courts identify the cases found to constitute strikes should not be overly burdensome given the fact that the district court must review a prisoner's litigation history prior to ruling on the prisoner's request to proceed in forma pauperis. Consequently, we hold that in the order denying leave to proceed in forma pauperis the district court must cite specifically the case names, case docket numbers, districts in which the actions were filed, and the dates of the orders dismissing the actions.
[15] In summary, in appeal No. 98-1461 leave to proceed on appeal in forma paupers is DENIED and Evans has 14 days to pay the $105 filing fee or his case will be dismissed. Appeal No. 98-2050 is REMANDED for the limited purpose of requiring the district court to identify the cases it concluded constituted Scruggs's "three strikes."