1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-13-1998

Gibbs v. Cross

Precedential or Non-Precedential:

Docket 96-3618

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Recommended Citation

"Gibbs v. Cross" (1998). 1998 Decisions. Paper 264.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/264
Filed November 13, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-3618 

HENRY GIBBS, JR., 

Appellant 

v. 

OFFICER PAUL CROSS, 

Maintenance Supervisor 

On Appeal From the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil No. 96-cv-00213J) 

Argued: May 19, 1998 

Before: ROTH, McKEE Circuit Judges, 

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. 
 JOHN G. KNORR, III, Esq. (Argued) 

 AMY ZAPP, Esq. 

 Office of Attorney General of 

 Pennsylvania 

 Department of Justice 

 Strawberry Square 

 15th Floor 

 Harrisburg, PA 17120 

 Attorneys for Appellee 

 ALISA B. KLEIN, Esquire (Argued) 

 United States Department of Justice 

 Civil Division, Appellate Staff 

 601 D. Street, N.W. 

 Washington, D.C. 20530-0001 

 Attorney for Intervenor-Appellee 

OPINION OF THE COURT 

McKEE, Circuit Judge: 

Henry Gibbs appeals the district court's dismissal of his 

pro se civil rights complaint. The district court denied 

Gibbs' request for in forma pauperis status and dismissed 

the complaint pursuant to the "three strikes" provision of 

28 U.S.C. S 1915(g). For the reasons that follow, we will 

reverse and remand to the district court for a determination 

of whether Gibbs was in "imminent danger" at the time of 

the alleged incidents. 

I. 

On August 7, 1996, Gibbs filed a pro se civil rights 

complaint pursuant to 42 U.S.C. S 1983, alleging that 

Cross, a prison maintenance supervisor, was causing Gibbs 

to be subjected to dangerous conditions while confined to 

the Restricted Housing Unit ("RHU") at the State 

Correctional Institute at Somerset.1 Although it is not clear 

_________________________________________________________________ 

1. By Order dated December 18, 1997, this Court appointed counsel to 

represent Mr. Gibbs. 

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from the complaint, it appears that Gibbs spent at least 

several months in a cell in the RHU. He claims that during 

this time "dust, lint and shower odor" were continuously 

emitted from the cell vent, causing Gibbs to suffer"severe 

headaches, change in voice, mucus that is full of dust and 

lint, and watery eyes." Appellant's Br. at 6. Gibbs alleges 

that prison personnel have not responded to his requests to 

address this situation and that he therefore filed this action 

seeking monetary damages. When Gibbs filed the action he 

remained housed in the RHU. 

Gibbs' complaint was accompanied by a motion seeking 

leave to proceed in forma pauperis. The case was referred to 

a magistrate judge who determined that Gibbs had 

previously filed at least three civil actions that had been 

dismissed as frivolous and that he was therefore ineligible 

to proceed in forma pauperis because of the recently 

enacted provisions of 28 U.S.C. S 1915(g). The magistrate 

judge further determined that "although [Gibbs] allege[d] 

that his health suffered from the dust, lint, and odors in 

his cell, the allegations of his complaint do not colorably 

raise a claim of imminent danger of serious physical injury" 

so as to fit within the exception to S 1915(g). Accordingly, 

the magistrate judge recommended that the motion to

proceed in forma pauperis be denied and that the complaint 

be dismissed without prejudice to Gibbs' right to refile upon 

payment of the required filing fee. The district court 

adopted the magistrate judge's Report and 

Recommendation as the opinion of the court and dismissed 

the complaint. 

We granted Gibbs leave to appeal in forma pauperis in 

accordance with 28 U.S.C. S 1915(b) and appointed counsel 

to assist him with this appeal. Because Cross had not been 

served with a copy of the complaint, we directed that 

relevant portions of the record be forwarded to the state's 

Attorney General to allow for participation in the appeal.2 In 

_________________________________________________________________ 

2. When referencing the arguments presented on appeal by the state's 

Attorney General, we will refer throughout this opinion to the brief of 

appellee Cross although we are cognizant of the fact that Cross is not 

technically a party to this appeal since he was never served with a copy 

of the complaint. 

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addition, the United States intervened and has filed a brief 

defending the constitutionality of S 1915(g).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 the district 

court's interpretation of 28 U.S.C. S 1915(g) is plenary. See 

Gibbs v. Roman, 116 F.3d 83, 85 (3d Cir. 1997); Moody v. 

Security Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir. 

1992). 

II. 

Congress enacted the Prison Litigation Reform Act, Pub. 

L. No. 104-134, 110 Stat. 1321 S 801 ("PLRA") in 1996. One 

provision of the PLRA, often referred to as the "three 

strikes" provision, is at issue here. That provision is 

codified at 28 U.S.C. S 1915(g) and provides 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. 

The bar imposed by this provision does not preclude an 

inmate from bringing additional suits. It does, however, 

deny him or her the right to obtain in forma pauperis 

status. 

Gibbs does not dispute that he has accumulated at least 

three strikes.5 He argues instead that the "three strikes" 

_________________________________________________________________ 

3. The United States takes no position with respect to the issue of 

whether Gibbs falls within the statutory exception to S 1915(g). 

5. We held in Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d 

143 (3d Cir. 1997), that dismissals as frivolous prior to the PLRA's 

enactment count as strikes. Gibbs' "strike" history includes at least the 

following civil actions: Gibbs v. Sobina, No. 95-00150 (W.D. Pa. Aug. 25, 

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provision should not bar him from proceeding in forma 

pauperis here because he has alleged "imminent danger of 

serious physical injury" within the exception contained in 

S 1915(g). Gibbs also asserts a constitutional challenge to 

28 U.S.C. S 1915(g), arguing that it denies indigent inmates 

their constitutional right of access to the courts, and denies 

them the equal protection guarantee of the Fifth 

Amendment. His constitutional claims were not raised in 

the district court. 

For the reasons that follow, we conclude that the district 

court erred in ruling that Gibbs was not eligible for in forma 

pauperis status as a matter of law, and we will therefore 

remand this matter for further proceedings consistent with 

this opinion. See Roman, 116 F.3d at 86. We will refrain 

from reaching the constitutional claims, but Gibbs is free to 

raise those on remand.5 

As noted above, prisoners who are in "imminent danger 

of serious physical injury" are exempted from the "three 

strikes" provision in 28 U.S.C. S 1915(g). Gibbs has alleged 

that he was forced to breathe particles of dust and lint 

which were continuously being dispersed into his cell 

through the ventilation system. By the time Gibbsfiled the 

underlying civil action in the district court, he had been 

living under these conditions for some time and claims to 

have been suffering from "severe headaches, change in 

voice, mucus that is full of dust and lint, and watery eyes." 

Gibbs argues that, depending on the nature of the particles 

_________________________________________________________________ 

1995) (dismissed as frivolous), appeal dismissed as frivolous, No. 95- 

3481 (3d Cir. Nov. 21, 1995); Gibbs v. Monsour, No. 95-00167 (W.D. Pa. 

Aug. 25, 1995) (dismissed as frivolous); Gibbs v. Musser, No. 95-00227 

(W.D. Pa. Dec. 29, 1995) (dismissed as frivolous), aff'd, No. 96-3031 (3d 

Cir. Dec. 31, 1996); Gibbs v. Tajeske, No. 95-00230 (W.D. Pa. Dec. 29, 

1995) (dismissed as frivolous), appeal dismissed as frivolous, No. 96- 

3030 (3d Cir. April 4, 1996); Gibbs v. Sobina , No. 95-00255 (W.D. Pa. 

Dec. 29, 1995) (dismissed as frivolous), aff'd, No. 96-3029 (3d Cir. Dec. 

31, 1996). 

5. As we stated in Roman, "[s]ince Gibbs failed to raise these issues 

before the district court . . . we expressly decline to address or decide 

them here even though they have been briefed before us." 116 F.3d at 

87. 

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he is breathing, there is a significant possibility that he is 

under imminent danger of serious physical injury, and he 

thus falls within the statutory exception of S 1915(g). Cross, 

on the other hand, argues that the physical symptoms 

experienced by Gibbs are not "serious" within the meaning 

of S 1915(g). Counsel for Cross attempts to minimize Gibbs' 

allegations by emphasizing their speculative nature. 

 The Court should reject this invitation [to speculate]. 

 Obviously, if sheer bootstrapping conjecture of this 

 kind is sufficient to state an `imminent danger of 

 serious physical injury' - if it is enough for a prisoner 

 to say . . . that there is dust in his cell and for all he 

 knows it might be asbestos, . . . then the three strikes 

 rule will become a dead letter, a rule swallowed by its 

 exception. This cannot have been Congress' intention. 

Appellee's Br. at 15. 

However, Gibbs does not merely allege that he is in a 

dusty cell. He alleges that unidentified dust particles were 

in his lungs and mucus, and that he is suffering from 

severe headaches, watery eyes, and a change in his voice as 

a result. See A. 16-17. We are unimpressed with appellee's 

attempt to minimize such allegations by emphasizing their 

speculative nature. Inmates ought to be able to complain of 

unsafe drinking water without awaiting the onset of

dysentery. Helling v. McKinney, 113 S.Ct. 2475, 2480-81 

(1993). ( "a prison inmate also could successfully complain 

about demonstrably unsafe drinking water without waiting 

for an attack of dysentery.") Inmates ought to be able to 

complain about "unsafe, life-threatening condition[s] in 

their prison" without waiting for something to happen to 

them.). After all, it is the prison administration, not the 

inmates, who are in the best position to determine the 

precise nature of any such contaminants in those 

situations where health hazards are not readily apparent to 

the unaided senses. 

Thus, in Gibbs v. Roman, we instructed district courts to 

evaluate the allegations in a complaint filed by a pro se 

prisoner facing a S 1915(g) bar under our liberal pleading 

rules, construing all allegations in favor of the complainant 

and crediting those allegations of "imminent danger" that 

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have gone unchallenged. Gibbs v. Roman, 116 F.3d at 86. 

Here, neither the magistrate judge, nor the district court 

judge had the benefit of that ruling, and neither judge 

credited Gibbs' allegations regarding the conditions in the 

RHU. 

Moreover, notwithstanding appellee's rejoinder, it is 

common knowledge that improper ventilation and the 

inhalation of dust and lint particles can cause disease. For 

example, the dangers posed by exposure to friable asbestos 

are all too well known. See, e.g., LaBounty v. Coughlin, 137 

F.3d 68, 74 n.5 (2d Cir. 1998) ("friable asbestos poses a 

significant health risk because airborne particles can 

become lodged in lungs and in the respiratory tract and 

over time can lead to asbestosis, mesothelioma and lung 

cancer"). 

Cross bases much of his argument to the contrary upon 

several cases wherein courts have determined that 

symptoms such as headaches and nausea do not amount

to a serious physical injury or that exposure to friable 

asbestos does not amount to a physical injury at all absent 

some manifestation of asbestosis symptomatology.6 

However, these cases were decided under an Eighth 

Amendment analysis, and that is quite different from the 

statutory analysis required under 28 U.S.C. S 1915(g). An 

Eighth Amendment claim requires a showing of "wanton 

and unnecessary infliction of pain [or conditions that are] 

grossly disproportionate to the severity of the crime 

warranting imprisonment . . .", Rhodes v. Chapman, 452 

U.S. 337, 346 (1981), or that a prison official or employee 

has acted with deliberate indifference to a serious medical 

need. See, e.g. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 

50 L.Ed.2d 251 (1976). Moreover, "[i]n assessing claims 

that conditions of confinement are cruel and unusual, 

courts must bear in mind that their inquiries spring from 

constitutional requirements. . . ." Rhodes, 452 U.S. at 351. 

(Internal quotation marks omitted). 

_________________________________________________________________ 

6. The cases cited by the Commonwealth include Doty v. County of 

Lassen, 37 F.3d 540 (9th Cir. 1994); O'Laughlin v. Doe, 920 F.2d 614 

(9th Cir. 1990); Givens v. Jones, 900 F.2d 1229 (8th Cir. 1990); and 

Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997). 

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Accordingly, absent some indication that Congress 

intended to incorporate constitutional standards of cruel 

and unusual punishment into the procedures for filing a 

law suit in forma pauperis, Eighth Amendment analysis is 

of little assistance in determining congressional intent in 

enacting 28 U.S.C. S 1915(g). Our inquiry into the proper 

interpretation and application of S 1915(g) reveals no such 

intent. 

Rather, Congress's intent in enacting the "three strikes" 

provision was twofold. Congress was clearly concerned with 

continuing to afford in forma pauperis filing status to 

inmates who had a history suggestive of abusing the

judicial system.7 However, Congress was also fully 

cognizant of the need to afford redress to any indigent 

prisoner whose circumstances created an "imminent danger 

of serious physical injury." Had Congress wanted to limit 

the latter concern to only those inmates who alleged a 

violation of the Eighth Amendment, it would have said so. 

Nevertheless, even some of the language that courts have 

used in the context of an Eighth Amendment analysis

supports our conclusion that the district court erred here. 

For example, in Helling v. McKinney, 509 U.S. 25, 34, 113 

_________________________________________________________________ 

7. In interpreting 28 U.S.C. S 1915(d) which allowed dismissal of a 

frivolous in forma pauperis complaint prior to enactment of the PLRA, 

the Court stated: 

 In enacting the federal in forma pauperis statute, Congress 

intended 

 to guarantee that no citizen shall be denied an opportunity to 

 commence, prosecute, or defend an action, civil or criminal, in any 

 court of the United States, solely because ... poverty makes it 

 impossible ... to pay or secure the costs of litigation. At the 

same 

 time that it sought to lower judicial access barriers to the 

indigent, 

 however, Congress recognized that a litigant whosefiling fees and 

 court costs are assumed by the public, unlike a paying litigant, 

 lacks an economic incentive to refrain from filing frivolous, 

 malicious, or repetitive lawsuits. In response to this concern, 

 Congress included subsection (d) as part of the statute, which 

 allows the courts to dismiss an in forma pauperis complaint if 

 satisfied that the action is frivolous or malicious. 

Denton v. Hernandez, 504 U.S. 25, 31 (1992) (internal quotation marks 

and citations omitted). Congress incorporated a similar balance into the 

"three strikes" provision of the PLRA. 

 8 
S.Ct. 2475, 2481, 125 L.Ed.2d 22 (1993), the Supreme 

Court held that a claim of exposure to environmental 

tobacco smoke states a cause of action for violation of the 

Eighth Amendment protection against cruel and unusual 

punishment even though the inmate is asymptomatic 

because the health risk posed by involuntary exposure to 

second hand smoke was "sufficiently imminent". There, the 

Court rejected the argument that a claim could not be 

established absent a claim of present injury. The Court 

stated "the Court of Appeals cases to the effect that the 

Eighth Amendment protects against sufficiently imminent 

dangers as well as current unnecessary and wanton 

infliction of pain and suffering are legion." Id. Thus, we will 

not read the language of S 1915(g) to require that the 

"imminent danger" allegation be accompanied by allegations 

of an existing serious physical injury in order to bring a 

prisoner within the statutory exception to the "three 

strikes" provision. It is sufficient that the condition poses 

an imminent danger of serious physical injury. 

This does not however, mean that a district court must 

accept any and all allegations of injury as sufficient to 

forestall application of 28 U.S.C. S 1915(g). Neither our 

decision here, nor our holding in Gibbs v. Roman prevents 

a district court from discrediting factual claims of imminent 

danger that are "clearly baseless," i.e., allegations that are 

fantastic or delusional and rise to the level of the"irrational 

or wholly incredible." Denton, 504 U.S. at 33, 112 S.Ct. at 

1733. We do caution, however, that the inquiry a court may 

make under 28 U.S.C. S 1915(e) (allowing dismissal of 

frivolous complaints), See Neitzke v. Williams, 490 U.S. 

319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), is not the 

same as the one made when there is a challenge to a claim 

of "imminent danger" under 28 U.S.C. S 1915(g). The latter 

is only intended to determine whether a complainant may 

proceed without full payment of filing fees. See Haines v. 

Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). 

"Once the fee barrier has been overcome, the merits of the 

cause of action are itself available for consideration and 

decision." Gibbs v. Roman, 116 F.3d at 87 n.7.8 

_________________________________________________________________ 

8. We are mindful that this procedure will often times necessitate further 

factfinding proceedings once the imminent danger allegation is 

challenged; a byproduct of the PLRA most likely not contemplated by 

Congress, but which must nonetheless be handled by the courts. 

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III. 

For the above reasons, we will reverse the district court's 

order of dismissal and remand for further proceedings. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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