1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-13-1998

Gibbs v. Ryan

Precedential or Non-Precedential:

Docket 96-3528

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Recommended Citation

"Gibbs v. Ryan" (1998). 1998 Decisions. Paper 263.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/263
Filed 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 District Judge of the 

United States District Court for the Eastern District 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 dismissing his 

complaint pursuant to 28 U.S.C. S 1915(g). Gibbs contends 

that the district court erred in applying that statute, that 

the statute is an unconstitutional denial of the equal 

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 forma 

pauperis status. Accordingly, we will vacate the order of the 

district court and remand for further proceedings. 

I. 

On February 27, 1996, Gibbs filed a civil rights complaint 

pursuant to 42 U.S.C. S 1983, alleging that Dr. William C. 

Ryan, a physician at the State Correctional Institute at 

Somerset, had denied him medical treatment for a back 

injury and for injuries Gibbs allegedly sustained when he 

inadvertently ingested a piece of metal that was in his food. 

The matter was referred to a magistrate judge on that same 

day, and the magistrate judge granted Gibbs leave to 

proceed in forma pauperis. On March 6, 1996, an order was 

filed limiting Gibbs' in forma pauperis status to a waiver of 

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the prepayment of the filing fee, and noting that Gibbs may 

be responsible for other fees and expenses. The order was 

based upon Gibbs' numerous civil rights filings. There 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 pending in 

the district court, Congress enacted the Prison Litigation 

Reform Act, Pub. L. No. 104-134 (April 26, 1996) which 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 strikes" 

rule. That provision is as follows: 

 In no event shall a prisoner bring a civil action or 

 appeal a judgment in a civil action or proceeding under 

 this section 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). Based upon this provision, the

magistrate judge issued a Report and Recommendation

recommending that Gibbs' previously granted in forma 

pauperis status be revoked and that he be required to 

submit the full filing fee. The district court overruled Gibbs' 

_________________________________________________________________ 

1. We note that the general practice in this Circuit 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. 1990). Moreover, 

S 1915(c) (re-numbered as S 1915(d)) unequivocally states that "[t]he 

officers of the court shall issue and serve all process, and perform all 

duties in [ifp] cases" that are not initially dismissed 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 frivolous, court is compelled 

to proceed in compliance with S 1915(c)). Since the magistrate judge 

found Gibbs eligible to proceed in forma pauperis he should not have 

imposed a prepayment requirement. On remand the district court should 

order service of the complaint without prepayment of the service fees. 

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objections to that Report and Recommendation, adopted 

the Report as the court's opinion, and dismissed Gibbs' 

complaint.2 This appeal followed. The district court granted 

Gibbs leave to appeal in forma pauperis and we appointed 

counsel to assist Gibbs with this appeal. The United States 

has intervened and filed a brief as amicus curiae limited 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 appellate 

jurisdiction to review a final order of the district court 

pursuant to 28 U.S.C. S 1291. Our review of issues of 

statutory construction and interpretation is plenary. 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 forma 

pauperis status that had been granted prior to enactment 

of the PLRA. We conclude it can not. 

Our inquiry must begin with the language of the statute. 

Pennsylvania Dep't of Pub. Welfare v. Davenport, 495 U.S. 

552, 557-58, 110 S.Ct. 2126, 2130-31, 109 L.Ed.2d 588 

(1990); New Rock Asset Partners, L.P. v. Preferred Entity 

Advancements, Inc., 101 F.3d 1492, 1498 (3d Cir. 1996) 

(collecting cases). As set forth above, section 1915(g) 

provides that a prisoner may not "bring a civil action or 

appeal a judgment in a civil action or proceeding[in forma 

pauperis] ...." if the prisoner has "three strikes" as specified 

in the statute (emphasis added). Despite other ambiguities 

that may exist within the text of the PLRA, Congress clearly 

_________________________________________________________________ 

2. We note that the better course is to issue an order denying in forma 

pauperis status, directing payment of the fullfiling fee within a 

specified 

period and dismissing the complaint only if the litigant 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. 

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limited the reach of S 1915(g) to "bringing" a civil action or 

"appealing" a judgment. Neither term is a term of art and 

we therefore assume that Congress intended those common 

words to have their ordinary meaning in the PLRA. See In 

re TMI, 67 F.3d 1119, 1123 (3d Cir. 1995), cert. denied, 116 

S.Ct. 1560 (1996). 

In the context of filing a civil action, "bring" ordinarily 

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. His 

complaint was filed, and his action was "brought" when his 

motion to proceed in forma pauperis was granted. See 

Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 458 

(3d Cir. 1996) (complaint "duly filed" after determination 

was made that litigant was indigent); Oatess v. Sobolevitch, 

914 F.2d 428, 430 n.1 (3d Cir. 1990) (when complaint 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' complaint 

was filed almost two months prior to the effective date of 

the PLRA, and his action was brought before the"three 

strikes" provision of S 1915(g) became law. Nothing in the 

text of the statute leads us to conclude that Congress 

intended the "three strikes" provision to apply to actions 

that were "pending" as well as actions that were "brought" 

under the PLRA. See Chandler v. District of Columbia Dep't 

of Corrections, 145 F.3d 1355 (D.C. Cir. 1998); Canell 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 district 

court on April 9, 1996, and was granted leave to proceed in 

forma pauperis on April 18, 1996. However, after S 1915(g) 

became effective, the district court dismissed Garcia's 

claims after determining that at least three of Garcia's prior 

suits had been dismissed as frivolous as required under the 

"three strikes" provision. The court of appeals reversed 

concluding "the plain language of S 1915(g) restricts a 

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prisoner's ability to `bring a civil action or appeal 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 complaint 

and the appeal were brought prior to the enactment of the 

PLRA. The Court of Appeals for the Ninth Circuit concluded 

that "[t]he plain language of the section indicates that it 

does not apply to pending cases on appeal, as is the case 

here." Canell, 143 F.3d at 1212, (citing Lindh v. Murphy, ___ 

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 rest 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 of the 

proceeding. Chandler, 145 F.3d at 1358-59. 

This reasoning is consistent with the holding in cases 

where courts have decided whether appellate fees may 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 pay 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 purposes of 

the new fee obligations under S 1915(b)(1) are the "bringing" 

of a civil action and the "filing" of an appeal. Once these 

"milestones" have passed, "fees do not attach to later 

activities."), Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 

1998) (application of the PLRA to prisoner's complaint 

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 analysis and 

_________________________________________________________________ 

4. Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 

L.Ed.2d 229 (1994). 

 6 
held "the new law governing prisoner filing fees should not 

govern an action in which the prisoner has already 

`properly filed [his action and appeal] under the old 

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 issue 

have reached the conclusion we reach today. In Covino v. 

Reopel, 89 F.3d 105, 108 (2d Cir. 1996), the court 

concluded that the PLRA's burdens are "slight and entirely 

avoidable," and the fee requirements of S 1915(g) can fairly 

apply to prisoners who filed notices of appeal prior to its 

enactment date, regardless of whether they had previously 

filed in forma pauperis motions or had "carryover" in forma 

pauperis status on appeal. However, we are not persuaded. 

The proper inquiry does not turn upon considerations of 

fairness. Rather, the analysis must focus on congressional 

intent. We believe that if Congress had intended the result 

reached in Covino it would not have limited the "three 

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) and 

Strickland v. Rankin County Correctional Facility, 105 F.3d 

972 (5th Cir. 1997). Without discussion, these courts 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 with 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 rules. Because 

in our view the language of S 1915(g) is plainly prospective, 

while other PRLA provisions demonstrate Congress 

expressly required retrospective application when it so 

 7 
desired, we believe it unnecessary to look beyond the 

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 proceedings 

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) should not be applied 

here since Gibbs had already been granted in forma pauperis status 

before the PLRA was enacted. See Intervenor's Br. at 12. 

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