### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-13-1998 

# G i bb s v . R ya n

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-3528

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1998

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1998 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" G i b bs v . R ya n " (1998). 1998 D e cisio n s

. P a pe r 263.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1998/263Filed November 13, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-3528

HENRY GIBBS, JR.,

Appellant

v.

DR. WILLIAM C. RYAN

On Appeal From the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 96-cv-00041J)

Argued: May 19, 1998

Before: Roth, McKee, Circuit Judges and O'Neill, Senior District Judge*

(Filed: November 13, 1998)

NANCY WINKELMAN, Esq. (Argued) Schnader, Harrison, Segal & Lewis

1600 Market Street
Suite 3600 Philadelphia, PA 19103

Attorney for Appellant

___________________________________________________ ______________

*The Honorable Thomas N. O'Neill, Jr., Senior Distr ict Judge of the
United States District Court for the Eastern Distri ct of Pennsylvania, sitting by designation.ALISA B. KLEIN, Esq. (Argued)

JOHN P. SCHNITKER, Esq. United States Department of Justice Civil Division, Appellate Staff 601 D. Street, N.W. Washington, D.C. 20530-0001

Attorneys for Intervenor-Appellee

WILLIAM C. RYAN (pro se)

Somerset SCI
1590 Walters Mill Road Somerset, PA 15510

OPINION OF THE COURT

McKEE, Circuit Judge:

Henry Gibbs appeals from the district court's order revoking his in forma pauperis status and dismissin g his complaint pursuant to 28 U.S.C. S 1915(g). Gibbs co ntends that the district court erred in applying that stat ute, that the statute is an unconstitutional denial of the eq ual protection of the law, and that it denies him his fundamental right of access to the courts. For the reasons that follow, we agree that the district court erred in applying the statute to Gibbs and revoking his in f orma pauperis status. Accordingly, we will vacate the or der of the district court and remand for further proceedings.

I.

On February 27, 1996, Gibbs filed a civil rights co mplaint pursuant to 42 U.S.C. S 1983, alleging that Dr. Wil liam C. Ryan, a physician at the State Correctional Institu te at Somerset, had denied him medical treatment for a ba ck injury and for injuries Gibbs allegedly sustained w hen he inadvertently ingested a piece of metal that was in his food. The matter was referred to a magistrate judge on th at same day, and the magistrate judge granted Gibbs leave t o proceed in forma pauperis. On March 6, 1996, an ord er was filed limiting Gibbs' in forma pauperis status to a waiver of

2the prepayment of the filing fee, and noting that G ibbs may

be responsible for other fees and expenses. The ord er was based upon Gibbs' numerous civil rights filings. Th ere is no
indication in the record that the Marshal's fee was ever paid or that defendant Ryan was ever served.1

On April 26, 1996, while the instant suit was pendi ng in the district court, Congress enacted the Prison Lit igation Reform Act, Pub. L. No. 104-134 (April 26, 1996) wh ich is codified at 28 U.S.C. S 1915 ("PLRA"). Section 804 of the PLRA amends the prior 28 U.S.C. S 1915 to include a new provision that has come to be known as the "three s trikes" rule. That provision is as follows:

In no event shall a prisoner bring a civil a ction or appeal a judgment in a civil action or proce eding under this section if the prisoner has, on 3 or mo re prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a c ourt of the United States that was dismissed on the grou nds that it is frivolous, malicious, or fails to stat e a claim upon which relief may be granted, unless the pris oner is under imminent danger of serious physical in jury.

28 U.S.C. S 1915(g). Based upon this provision, the magistrate judge issued a Report and Recommendation recommending that Gibbs' previously granted in form a pauperis status be revoked and that he be required to submit the full filing fee. The district court over ruled Gibbs'

___________________________________________________ ______________

1. We note that the general practice in this Circui t is to grant leave to proceed in forma pauperis based solely on a showing of indigence. See Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 199 0). Moreover, S 1915(c) (re-numbered as S 1915(d)) unequivocally states that "[t]he officers of the court shall issue and serve all pro cess, and perform all duties in [ifp] cases" that are not initially dismi ssed as frivolous by

the district court. See also Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992) (since district court granted plaintiff leave to proceed in forma pauperis, it was district court's responsibility to serve process upon all defendants); Welch v. Folsom, 925 F.2d 666, 670 (3d Cir. 1991) (if district court does not dismiss complaint as frivol ous, court is compelled to proceed in compliance with S 1915(c)). Since the magistrate judge found Gibbs eligible to proceed in forma pauperis h e should not have imposed a prepayment requirement. On remand the dis trict court should order service of the complaint without prepayment o f the service fees.

3objections to that Report and Recommendation, adopt ed

the Report as the court's opinion, and dismissed Gi bbs' complaint.2 This appeal followed. The district cour t granted Gibbs leave to appeal in forma pauperis and we appo inted counsel to assist Gibbs with this appeal. The Unite d States
has intervened and filed a brief as amicus curiae l imited to the issues raised by Gibbs' challenge to the constitutionality of the PLRA.3

The district court had subject matter jurisdiction pursuant to 28 U.S.C. SS 1331 and 1343. We have app ellate jurisdiction to review a final order of the distric t court pursuant to 28 U.S.C. S 1291. Our review of issues of statutory construction and interpretation is plenar y. Moody v. Security Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir. 1992).

II.

We are thus presented with yet another issue under the PLRA. We must decide the narrow question of whether a district court may apply S 1915(g) to revoke in for ma pauperis status that had been granted prior to enac tment
of the PLRA. We conclude it can not.

Our inquiry must begin with the language of the sta tute. Pennsylvania Dep't of Pub. Welfare v. Davenport, 49 5 U.S. 552, 557-58, 110 S.Ct. 2126, 2130-31, 109 L.Ed.2d 5 88 (1990); New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1498 (3d Cir. 19 96) (collecting cases). As set forth above, section 191 5(g) provides that a prisoner may not "bring a civil act ion or appeal a judgment in a civil action or proceeding[i n forma pauperis] ...." if the prisoner has "three strikes" as specified in the statute (emphasis added). Despite other ambi guities that may exist within the text of the PLRA, Congres s clearly

___________________________________________________ ______________

2. We note that the better course is to issue an or der denying in forma pauperis status, directing payment of the fullfilin g fee within a specified period and dismissing the complaint only if the lit igant fails to pay the filing fee.

3. Since we conclude that 28 U.S.C. S 1915(g) doesn 't apply to Gibbs, we do not reach the constitutional challenge.

4limited the reach of S 1915(g) to "bringing" a civi l action or

"appealing" a judgment. Neither term is a term of a rt and we therefore assume that Congress intended those co mmon words to have their ordinary meaning in the PLRA. S ee In re TMI, 67 F.3d 1119, 1123 (3d Cir. 1995), cert. de nied, 116 S.Ct. 1560 (1996).

In the context of filing a civil action, "bring" or dinarily refers to the "initiation of legal proceedings in a suit." Black's Law Dictionary 192 (6th ed. 1990); see also Random House Dictionary of the English Language 262 (2d ed. 1987) ("bring" is synonymous with "commence: to bring an action for damages"). Gibbs commenced his action against Ryan on February 27, 1996, and his request for in forma pauperis status was granted that same day. Hi s complaint was filed, and his action was "brought" w hen his motion to proceed in forma pauperis was granted. Se e Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 458 (3d Cir. 1996) (complaint "duly filed" after determ ination was made that litigant was indigent); Oatess v. Sob olevitch, 914 F.2d 428, 430 n.1 (3d Cir. 1990) (when complain t is accompanied by motion to proceed in forma pauperis, rather than payment of the filing fee, complaint is not filed until the motion has been granted). Thus, Gibbs' co mplaint was filed almost two months prior to the effective date of the PLRA, and his action was brought before the"thr ee strikes" provision of S 1915(g) became law. Nothing in the text of the statute leads us to conclude that Congr ess intended the "three strikes" provision to apply to actions that were "pending" as well as actions that were "b rought"
under the PLRA. See Chandler v. District of Columbi a Dep't of Corrections, 145 F.3d 1355 (D.C. Cir. 1998); Can ell v. Lightner, 143 F.3d 1210 (9th Cir. 1998); Garcia v. Silbert, 141 F.3d 1415 (10th Cir. 1998).

In Garcia, an inmate filed a S 1983 action in the d istrict court on April 9, 1996, and was granted leave to pr oceed in forma pauperis on April 18, 1996. However, after S 1915(g) became effective, the district court dismissed Garc ia's claims after determining that at least three of Gar cia's prior suits had been dismissed as frivolous as required u nder the "three strikes" provision. The court of appeals rev ersed concluding "the plain language of S 1915(g) restric ts a

5prisoner's ability to `bring a civil action or appe al a

judgment in a civil action' in forma pauperis." Id. at 1416 (emphasis added). The court reasoned that Garcia's claim had already been brought and could not subsequently be dismissed under S 1915(g). In Canell, both the comp laint and the appeal were brought prior to the enactment of the PLRA. The Court of Appeals for the Ninth Circuit co ncluded that "[t]he plain language of the section indicates that it does not apply to pending cases on appeal, as is th e case here." Canell, 143 F.3d at 1212, (citing Lindh v. M urphy, ___ U.S. ___, 117 S.Ct. 2059, 2062, (1997)). Similarly, the court in Chandler examined the text of 28 U.S.C. S 1915(g ) and concluded that when "[r]ead in concert with the res t of section 1915," subsection (g) was intended to apply only at the time an indigent prisoner files a complaint or an appeal, and was not intended to apply later in the course o f the proceeding. Chandler, 145 F.3d at 1358-59.

This reasoning is consistent with the holding in ca ses where courts have decided whether appellate fees ma y be assessed for appeals pending on the effective date of the PLRA. For example, in Abdul-Wadood v. Nathan, 91 F. 3d 1023, 1025 (7th Cir. 1996), the court held that it could not dismiss two remaining appeals as frivolous because appellant had used up his allotted "three strikes" during the pendency of those appeals. The court concluded that "[s]ection 1915(g) governs bringing new actions or filing new appeals--the events that trigger an obligation to p ay a docket fee--rather than the disposition of existing cases." See also Thurman v. Gramley, 97 F.3d 185, 188 (7th Cir. 1996) (holding that the dispositive events for purp oses of the new fee obligations under S 1915(b)(1) are the "bringing" of a civil action and the "filing" of an appeal. On ce these "milestones" have passed, "fees do not attach to la ter activities."), Lucien v. Jockisch, 133 F.3d 464, 46 7 (7th Cir. 1998) (application of the PLRA to prisoner's compla int depends on when complaint is "filed").

In Church v. Attorney General of Virginia, 125 F.3d 210 (4th Cir. 1997), the court applied a Landgraf4 anal ysis and

___________________________________________________ ______________

4. Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

6held "the new law governing prisoner filing fees sh ould not

govern an action in which the prisoner has already `properly filed [his action and appeal] under the o ld regime.' " Id. at 213, (quoting Landgraf, 511 U.S. at 275 n.29, 114 S.Ct. at 1502 n.29).

However, not all courts that have addressed this is sue have reached the conclusion we reach today. In Covi no v. Reopel, 89 F.3d 105, 108 (2d Cir. 1996), the court concluded that the PLRA's burdens are "slight and e ntirely avoidable," and the fee requirements of S 1915(g) c an fairly apply to prisoners who filed notices of appeal prio r to its enactment date, regardless of whether they had prev iously filed in forma pauperis motions or had "carryover" in forma pauperis status on appeal. However, we are not pers uaded. The proper inquiry does not turn upon consideration s of fairness. Rather, the analysis must focus on congre ssional intent. We believe that if Congress had intended th e result
reached in Covino it would not have limited the "th ree strikes" provision to an inmate's ability to "bring " an action. Congress could have tied the "three strikes" bar to an inmate's ability to maintain an action. It did not do so.

We are similarly unpersuaded by the reasoning of Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996) a nd Strickland v. Rankin County Correctional Facility, 105 F.3d 972 (5th Cir. 1997). Without discussion, these cour ts found S 1915(g) ambiguous as to whether it should be only prospectively applied. They therefore proceeded to examine whether applying S 1915(g) to pending complaints or appeals would be "retroactive" in effect -- i.e., " impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties wi th respect to transactions already completed." Landgraf, 511 U .S. at 280. Finding no such retroactive effect, the courts held that S 1915(g) should be applied even to complaints and appeals already successfully filed i.f.p. under the old rul es. Because in our view the language of S 1915(g) is plainly pr ospective, while other PRLA provisions demonstrate Congress expressly required retrospective application when i t so

7desired, we believe it unnecessary to look beyond t he

statute's language to determine when it applies. 5

III.

For the above reasons, we will vacate the district court's order of dismissal and remand for further proceedin gs consistent with this opinion as set forth in Roman, 116

F.3d at 86.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

5. As an aside, we note that counsel for the United States, as intervenor, has taken the position that 28 U.S.C. S 1915(g) sho uld not be applied here since Gibbs had already been granted in forma pauperis status

before the PLRA was enacted. See Intervenor's Br. a t 12.

8