1

REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-41003.

Arthur X. CARSON, Plaintiff-Appellant,

v.

Gary L. JOHNSON, Director, Texas Department of Criminal Justice,

Institutional Division, Defendant-Appellee.

May 15, 1997.

Appeal from the United States District Court for the Eastern

District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Texas state prisoner # 517349, Arthur Carson, proceeding pro

se and in forma pauperis ("IFP"), appeals the construction of his

habeas corpus petition as a 42 U.S.C. § 1983 suit, its dismissal,

sanctions imposed upon him, and an order barring him from filing

further actions IFP. Concluding that his petition is properly

characterized as a § 1983 suit and that he is barred from

proceeding IFP by 28 U.S.C. § 1915(g), we dismiss the appeal.

I.

Carson alleges that he was placed in administrative

segregation on the basis of his criminal conviction and his

previous disciplinary offenses. He further states that the parole

board will not grant parole to prisoners in administrative

segregation. Finally, he claims that his placement is not reviewed

as often as prison policy requires.
 

1Before the passage of the Prison Litigation Reform Act

("PLRA") of 1995, Title VIII of the Omnibus Consolidated

Rescissions and Appropriations Act of 1996, § 804(a), Pub.L. No.

104-134, 110 Stat. 1321 (1996) (to be codified at 28 U.S.C. §

1915), § 1915(d) authorized the dismissal of frivolous or malicious

actions. 

2

Carson filed in the district court for a writ of habeas

corpus, contending that his placement in administrative segregation

violates the Double Jeopardy and Ex Post Facto Clauses of the

Constitution. The district court, adopting the recommendation of

the magistrate judge, held that Carson's complaint was properly

characterized as a civil rights suit under 42 U.S.C. § 1983 and

dismissed it as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).1 The

court then sanctioned Carson $250 for his frequent filing of

frivolous complaints and barred him from further filings under 28

U.S.C. § 1915(g).

The district court granted Carson leave to proceed IFP on

appeal. Pursuant to Jackson v. Stinnett, 102 F.3d 132, 136-37 (5th

Cir.1996), Carson has paid the partial filing fees required by 28

U.S.C. § 1915(a)-(b), as amended by the PLRA.

II.

A.

 Section 804(c) of the PLRA added § 1915(g), which prohibits

a prisoner from proceeding IFP if he has had three actions or

appeals dismissed for frivolousness, maliciousness, or failure to

state a claim. See Adepegba v. Hammons, 103 F.3d 383, 385 (5th

Cir.1996). This provision often is referred to as the " "three

strikes' provision." Id. It states:
3

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.

B.

In considering the effect of the "three strikes" provision, we

first must determine whether Carson's action falls under the PLRA's

definition of "a civil action or proceeding." This requires us to

determine (1) whether the PLRA applies to a habeas petition under

28 U.S.C. § 2254 and (2) whether Carson's action is properly

characterized as a habeas petition or a § 1983 suit.

The PLRA requirements do not apply to habeas actions under 28

U.S.C. § 2255. See United States v. Cole, 101 F.3d 1076, 1077 (5th

Cir.1996). We gave three reasons for this conclusion. First,

"habeas proceedings are often determined to be outside the reach of

the phrase "civil action.' " Id. (quoting Santana v. United

States, 98 F.3d 752, 754-55 (3d Cir.1996)) (some internal

quotations marks omitted).

Second, we noted that Title I of the Antiterrorism and

Effective Death Penalty Act ("AEDPA") of 1996, §§ 101-108, Pub.L.

No. 104-132, 110 Stat. 1214, 1217-26 (1996) (to be codified at 28

U.S.C. § 2244-2266; FED. R.APP. P. 22), which became effective two

days before the PLRA did, contained separate procedures for

addressing abuses of the habeas process. We held that this fact

strongly suggests that Congress did not intend the PLRA to apply to
4

habeas petitions. See Cole, 101 F.3d at 1077 (quoting Reyes v.

Keane, 90 F.3d 676, 678 (2d Cir.1996)).

Finally, we recognized that applying the three strikes

provision to habeas petitions "would be contrary to a long

tradition of ready access of prisoners to federal habeas

corpus...." Id. (quoting Martin v. United States, 96 F.3d 853,

855-56 (7th Cir.1996)) (internal quotation marks omitted). We were

reluctant to find that Congress intended to end this longstanding

tradition absent more certain language.

All of these rationales apply with equal, if not greater,

force to 28 U.S.C. § 2254 petitions, which often are considered

something different from traditional civil actions. The AEDPA's

new procedures apply to habeas petitions reviewing state

convictions as well as those reviewing federal convictions. The

tradition of ready access to federal habeas relief is

well-established for state prisoners. Therefore, we conclude that

the new PLRA requirements do not apply to habeas petitions under §

2254.

C.

Carson states that the district court erred by construing his

habeas petition as a § 1983 suit. Because the PLRA does not apply

to habeas petitions under 28 U.S.C. § 2254, we must resolve this

issue before deciding whether Carson may continue to proceed IFP on

this appeal. If the district court erred, and Carson's suit was a
 

2Whether he could appeal at all without obtaining a

certificate of appealability, see 28 U.S.C. § 2253(c), as amended

by § 102 of the AEDPA, is another question, one which we do not

reach. 

5

habeas suit, the PLRA does not apply, and Carson may proceed IFP.2

Generally, § 1983 suits are the proper vehicle to attack

unconstitutional conditions of confinement and prison procedures.

See Cook v. Texas Dep't of Criminal Justice Transitional Planning

Dep't, 37 F.3d 166, 168 (5th Cir.1994). A habeas petition, on the

other hand, is the proper vehicle to seek release from custody.

See Pugh v. Parish of St. Tammany, 875 F.2d 436, 439 (5th

Cir.1989).

The distinction is blurry, however, when, as here, a prisoner

challenges an unconstitutional condition of confinement or prison

procedure that affects the timing of his release from custody. We

have adopted a simple, bright-line rule for resolving such

questions. If "a favorable determination ... would not

automatically entitle [the prisoner] to accelerated release,"

Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.1995) (per curiam), cert.

denied, --- U.S. ----, 116 S.Ct. 736, 133 L.Ed.2d 686 (1996), the

proper vehicle is a § 1983 suit.

According to Carson, reassignment from administrative

segregation would make him eligible for parole. He has not alleged

that such reassignment would automatically shorten his sentence or

lead to his immediate release. The parole decision still would be

within the discretion of the parole board.

This circumstance is indistinguishable from that in Cook.
 

3See Adarand Constructors, Inc. v. Pena, --- U.S. ----, ----,

115 S.Ct. 2097, 2108, 132 L.Ed.2d 158 (1995) (stating that the Due

Process Clause guarantees equal protection). Carson also alleges

that the PLRA violates the separation-of-powers doctrine. He does

not explain this assertion, other than by stating that "congress

wrongly meddled with the judiciary." This is insufficient to

preserve this argument. See Cavallini v. State Farm Mut. Auto Ins.

Co., 44 F.3d 256, 260 n. 9 (5th Cir.1995) (holding that "failure to

provide any legal or factual analysis of an issue results in

waiver"); United States v. Maldonado, 42 F.3d 906, 910 n. 7 (5th

Cir.1995) (reasoning that failure to do more than vaguely refer to

an issue constitutes waiver). 

6

There, a prisoner challenged the parole board's procedure of

considering voided prior convictions in deciding whether to grant

parole. See Cook, 37 F.3d at 167. Because a successful suit

"would merely enhance eligibility for accelerated release" and thus

"has an indirect impact on the determination of whether a claimant

eventually receives parole," we held that the prisoner had brought

a § 1983 action. Id. at 168.

Carson's suit is properly characterized as a § 1983 suit,

which is a civil action or proceeding within the meaning of the

PLRA. Accordingly, we must apply the new PLRA requirements to

Carson's appeal.

III.

A.

Carson argues that the "three strikes" provision of the PLRA

is unconstitutional because it blocks access to the courts and

discriminates against prisoners, presumably in violation of the Due

Process Clause, U.S. CONST. amend. V.3 We disagree.

B.

Section 1915(g) does not prevent a prisoner with three strikes
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from filing civil actions; it merely prohibits him from enjoying

IFP status. He still has the right to file suits if he pays the

full filing fees in advance, just like everyone else.

Although the Constitution requires the waiver of filing fees

in criminal cases, see Mayer v. Chicago, 404 U.S. 189, 195-96, 92

S.Ct. 410, 415-16, 30 L.Ed.2d 372 (1971) (non-felonies); Griffin

v. Illinois, 351 U.S. 12, 18-20, 76 S.Ct. 585, 590-91, 100 L.Ed.

891 (1956) (felonies), its requirements are less onerous in civil

cases. In the civil context, the test is whether the litigant has

a "fundamental interest at stake." M.L.B. v. S.L.J., --- U.S. ----

, ----, 117 S.Ct. 555, 562, 136 L.Ed.2d 473 (1996). If he does,

the courts must waive filing fees if he is unable to pay.

Examples of proceedings that implicate fundamental interests

are divorce actions, see Boddie v. Connecticut, 401 U.S. 371, 376,

91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971), and terminations of

parental rights, see M.L.B., --- U.S. at ----, 117 S.Ct. at 568.

Examples of interests that do not rise to this level are bankruptcy

filings, see United States v. Kras, 409 U.S. 434, 444-45, 93 S.Ct.

631, 637-38, 34 L.Ed.2d 626 (1973), and welfare benefit

determinations, see Ortwein v. Schwab, 410 U.S. 656, 659, 93 S.Ct.

1172, 1174, 35 L.Ed.2d 572 (1973) (per curiam).

Carson seeks reassignment from administrative segregation.

Prisoners have no liberty interest in avoiding disciplinary

segregation, at least where the status does not "inevitably affect

the duration of [the] sentence." Sandin v. Conner, --- U.S. ----,

----, 115 S.Ct. 2293, 2302, 132 L.Ed.2d 418 (1995). Carson does
8

not have a fundamental interest in his placement and thus is not

entitled to waiver of filing fees.

C.

Carson's claim of discriminatory treatment is similarly

without merit. Neither prisoners nor indigents constitute a

suspect class. See Harris v. McRae, 448 U.S. 297, 323, 100 S.Ct.

2671, 2691, 65 L.Ed.2d 784 (1980) (indigents); United States v.

King, 62 F.3d 891, 895 (7th Cir.1995) (prisoners); see also City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41, 105

S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985) (listing suspect

classes). As explained above, Carson has no fundamental personal

right at stake. Therefore, we review the PLRA to determine whether

it is "rationally related to a legitimate state interest." City of

New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49

L.Ed.2d 511 (1976) (per curiam).

It can hardly be doubted that deterring frivolous and

malicious lawsuits, and thereby preserving scarce judicial

resources, is a legitimate state interest. Cf. Schlup v. Delo, 513

U.S. 298, ----, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995) (noting

the societal interest in the "conservation of scarce judicial

resources"). It is similarly undebatable that prohibiting

litigants with a history of frivolous or malicious lawsuits from

proceeding IFP will deter such abuses. The only question is

whether the distinction drawn between prisoners and other litigants

is rational.

We agree with the Fourth and Sixth Circuits, and find that
 

4See Hampton, 106 F.3d at 1286-87 (citing 141 CONG. REC. S7256

(daily ed. May 25, 1995) (statement of Sen. Kyl) (noting the

prevalence of meritless prisoner lawsuits)). 

 

5See, e.g., In re Carson, 500 U.S. 931, 111 S.Ct. 2067, 114

L.Ed.2d 472 (1991) (denying writ of mandamus);Carson v. Bowles, No.

95-10115, 77 F.3d 479 (5th Cir. Jan.17, 1996) (per curiam)

(unpublished) (affirming summary judgment for defendant); In re

Carson, No. 95-00138 (5th Cir. July 11, 1995) (per curiam)

(unpublished) (denying writ of mandamus); Carson v. Texas Dep't of

Criminal Justice-Parole Div., No. 95-50039, 62 F.3d 393 (5th Cir.

June 29, 1995) (per curiam) (unpublished) (affirming dismissal of

civil rights case, finding appeal frivolous, and imposing

sanctions), cert. denied, --- U.S. ----, 116 S.Ct. 571, 133 L.Ed.2d

495 (1995); Carson v. Aguilera, No. 93-5432, 36 F.3d 90 (5th Cir.

Sept. 13, 1994) (per curiam) (unpublished) (affirming judgment for

defendants); Carson v. Denby, No. 94-40322, 30 F.3d 1492 (5th Cir.

July 19, 1994) (per curiam) (unpublished) (reversing dismissal of

civil rights case as frivolous); Carson v. Kent, No. 93-5462 (5th

Cir. May 25, 1994) (per curiam) (unpublished) (dismissing appeal as

frivolous); Carson v. Perry, No. 93-4375, 8 F.3d 21 (5th Cir.

Oct.22, 1993) (per curiam) (unpublished) (affirming summary

judgment in part, vacating and remanding in part), appeal after

remand, No. 95-40551, 91 F.3d 138 (5th Cir. June 6, 1996) (per

curiam) (unpublished) (affirming summary judgment); Carson v.

Bowles, No. 92-9089, 4 F.3d 990 (5th Cir. Aug.30, 1993) (per

curiam) (unpublished) (affirming denial of qualified immunity);

9

this distinction is rational. See Roller v. Gunn, 107 F.3d 227,

233-34 (4th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281, 1286-87

(6th Cir.1997). Prisoners have substantially more free time than

do non-prisoners and are provided with food, housing, paper,

postage, and legal assistance by the government. See Roller, 107

F.3d at 234.

Furthermore, "pro se civil rights litigation has become a

recreational activity for state prisoners," Gabel v. Lynaugh, 835

F.2d 124, 125 n. 1 (5th Cir.1988) (per curiam), and prisoners have

abused the judicial system in a manner that non-prisoners simply

have not.4 Carson's own lengthy litigation history is the

strongest possible argument for the PLRA's rationality.5
Carson v. Waldron, No. 92-4375, 978 F.2d 709 (5th Cir. Oct.21,

1992) (per curiam) (unpublished) (affirming dismissal of civil

rights case as frivolous); Carson v. Hernandez, No. 91-1528, 949

F.2d 1158 (5th Cir. Nov. 22, 1991) (per curiam) (unpublished)

(same), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310

(1992); Carson v. Peterson, No. 91-2618, 949 F.2d

1158 (5th Cir. Nov. 20, 1991) (per curiam) (unpublished) (same),

cert. denied, 503 U.S. 990, 112 S.Ct. 1685, 118 L.Ed.2d 400 (1992).

10

IV.

We have dismissed, as frivolous, one appeal by Carson. See

Carson v. Kent, No. 93-5462 (5th Cir. May 25, 1994) (per curiam)

(unpublished). This counts as a "strike." See Adepegba, 103 F.3d

at 388.

Twice, we have affirmed a district court's dismissal, for

frivolousness, of complaints filed by Carson. See Carson v.

Hernandez, No. 91-1528, 949 F.2d 1158 (5th Cir. Nov. 22, 1991) (per

curiam) (unpublished), cert. denied, 503 U.S. 974, 112 S.Ct. 1594,

118 L.Ed.2d 310 (1992); Carson v. Peterson, No. 91-2618, 949 F.2d

1158 (5th Cir. Nov. 20, 1991) (per curiam) (unpublished), cert.

denied, 503 U.S. 990, 112 S.Ct. 1685, 118 L.Ed.2d 400 (1992). Now

that these dismissals by the district court are final, they too

count as strikes. See Adepegba, 103 F.3d at 387-88.

Therefore, because Carson has at least three strikes, he may

not proceed IFP in this or any other federal lawsuit which does not

involve "imminent danger of serious physical injury." He may

resume any claims dismissed under § 1915(g) under the fee

provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else.

See Adepegba, 103 F.3d at 388.

The appeal is DISMISSED.
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