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. e du/thir dc ir c uit_1998/264Filed 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

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*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.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 d enied Gibbs' request for in forma pauperis status and dis missed the complaint pursuant to the "three strikes" provi sion of 28 U.S.C. S 1915(g). For the reasons that follow, w e will
reverse and remand to the district court for a dete rmination of whether Gibbs was in "imminent danger" at the ti me of the alleged incidents.

I.

On August 7, 1996, Gibbs filed a pro se civil right s complaint pursuant to 42 U.S.C. S 1983, alleging th at Cross, a prison maintenance supervisor, was causing Gibbs to be subjected to dangerous conditions while confi ned to the Restricted Housing Unit ("RHU") at the State Correctional Institute at Somerset.1 Although it is not clear

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1. By Order dated December 18, 1997, this Court app ointed counsel to represent Mr. Gibbs.

2from 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 continu ously emitted from the cell vent, causing Gibbs to suffer "severe headaches, change in voice, mucus that is full of d ust and lint, and watery eyes." Appellant's Br. at 6. Gibbs alleges that prison personnel have not responded to his req uests to
address this situation and that he therefore filed this action seeking monetary damages. When Gibbs filed the acti on he
remained housed in the RHU.

Gibbs' complaint was accompanied by a motion seekin g leave to proceed in forma pauperis. The case was re ferred 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 in eligible to proceed in forma pauperis because of the recentl y enacted provisions of 28 U.S.C. S 1915(g). The magi strate judge further determined that "although [Gibbs] all ege[d] that his health suffered from the dust, lint, and o dors in his cell, the allegations of his complaint do not c olorably raise a claim of imminent danger of serious physica l injury" so as to fit within the exception to S 1915(g). Acc ordingly, the magistrate judge recommended that the motion to proceed in forma pauperis be denied and that the co mplaint be dismissed without prejudice to Gibbs' right to r efile upon payment of the required filing fee. The district co urt adopted the magistrate judge's Report and Recommendation as the opinion of the court and dism issed the complaint.

We granted Gibbs leave to appeal in forma pauperis in accordance with 28 U.S.C. S 1915(b) and appointed c ounsel to assist him with this appeal. Because Cross had n ot been served with a copy of the complaint, we directed th at relevant portions of the record be forwarded to the state's Attorney General to allow for participation in the appeal.2 In

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2. When referencing the arguments presented on appe al by the state's Attorney General, we will refer throughout this opi nion to the brief of appellee Cross although we are cognizant of the fac t that Cross is not technically a party to this appeal since he was nev er served with a copy of the complaint.

3addition, the United States intervened and has file d 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 app ellate jurisdiction to review a final order of the distric t court pursuant to 28 U.S.C. S 1291. Our review of the dis trict court's interpretation of 28 U.S.C. S 1915(g) is pl enary. See Gibbs v. Roman, 116 F.3d 83, 85 (3d Cir. 1997); Moo dy v. Security Pac. Bus. Credit, Inc., 971 F.2d 1056, 106 3 (3d Cir. 1992).

II.

Congress enacted the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 S 801 ("PLRA") in 19 96. One provision of the PLRA, often referred to as the "th ree strikes" provision, is at issue here. That provisio n is codified at 28 U.S.C. S 1915(g) and provides as fol lows:

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.

The bar imposed by this provision does not preclude an inmate from bringing additional suits. It does, how ever, deny him or her the right to obtain in forma pauper is

status.

Gibbs does not dispute that he has accumulated at l east three strikes.5 He argues instead that the "three s trikes"

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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 Probati on & Parole, 128 F.3d 143 (3d Cir. 1997), that dismissals as frivolous pr ior to the PLRA's enactment count as strikes. Gibbs' "strike" history includes at least the following civil actions: Gibbs v. Sobina, No. 95-00 150 (W.D. Pa. Aug. 25,

4provision should not bar him from proceeding in for ma

pauperis here because he has alleged "imminent dang er of serious physical injury" within the exception conta ined in S 1915(g). Gibbs also asserts a constitutional chal lenge to 28 U.S.C. S 1915(g), arguing that it denies indigen t 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 raise d in
the district court.

For the reasons that follow, we conclude that the d istrict court erred in ruling that Gibbs was not eligible f or in forma pauperis status as a matter of law, and we will the refore remand this matter for further proceedings consiste nt with this opinion. See Roman, 116 F.3d at 86. We will re frain from reaching the constitutional claims, but Gibbs is free to
raise those on remand.5

As noted above, prisoners who are in "imminent dang er of serious physical injury" are exempted from the " three strikes" provision in 28 U.S.C. S 1915(g). Gibbs ha s alleged that he was forced to breathe particles of dust and lint which were continuously being dispersed into his ce ll through the ventilation system. By the time Gibbsfi led the underlying civil action in the district court, he h ad been living under these conditions for some time and cla ims to have been suffering from "severe headaches, change in voice, mucus that is full of dust and lint, and wat ery eyes." Gibbs argues that, depending on the nature of the p articles

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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. M usser, 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 declin e to address or decide them here even though they have been briefed before us." 116 F.3d at
87.

5he is breathing, there is a significant possibility that he is

under imminent danger of serious physical injury, a nd he thus falls within the statutory exception of S 1915 (g). Cross, on the other hand, argues that the physical symptom s experienced by Gibbs are not "serious" within the m eaning of S 1915(g). Counsel for Cross attempts to minimiz e 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 dan ger of serious physical injury' - if it is enough f or a prisoner to say . . . that there is dust in his cell and for all he knows it might be asbestos, . . . then the t hree strikes rule will become a dead letter, a rule swall owed by its exception. This cannot have been Congress' i ntention.

Appellee's Br. at 15.

However, Gibbs does not merely allege that he is in a dusty cell. He alleges that unidentified dust parti cles were in his lungs and mucus, and that he is suffering fr om severe headaches, watery eyes, and a change in his voice as a result. See A. 16-17. We are unimpressed with app ellee's attempt to minimize such allegations by emphasizing their speculative nature. Inmates ought to be able to com plain of unsafe drinking water without awaiting the onset of dysentery. Helling v. McKinney, 113 S.Ct. 2475, 248 0-81 (1993). ( "a prison inmate also could successfully complain about demonstrably unsafe drinking water without wa iting for an attack of dysentery.") Inmates ought to be a ble to complain about "unsafe, life-threatening condition[ s] in their prison" without waiting for something to happ en 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 app arent to
the unaided senses.

Thus, in Gibbs v. Roman, we instructed district cou rts to evaluate the allegations in a complaint filed by a pro se prisoner facing a S 1915(g) bar under our liberal p leading rules, construing all allegations in favor of the c omplainant and crediting those allegations of "imminent danger " that

6have gone unchallenged. Gibbs v. Roman, 116 F.3d at 86.

Here, neither the magistrate judge, nor the distric t court judge had the benefit of that ruling, and neither j udge credited Gibbs' allegations regarding the condition s 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 dis ease. For example, the dangers posed by exposure to friable a sbestos are all too well known. See, e.g., LaBounty v. Coug hlin, 137 F.3d 68, 74 n.5 (2d Cir. 1998) ("friable asbestos p oses 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 up on 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 fr iable asbestos does not amount to a physical injury at al l absent some manifestation of asbestosis symptomatology.6 However, these cases were decided under an Eighth Amendment analysis, and that is quite different fro m the statutory analysis required under 28 U.S.C. S 1915( g). An Eighth Amendment claim requires a showing of "wanto n and unnecessary infliction of pain [or conditions t hat are] grossly disproportionate to the severity of the cri me 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 cl aims
that conditions of confinement are cruel and unusua l, courts must bear in mind that their inquiries sprin g from constitutional requirements. . . ." Rhodes, 452 U.S . at 351. (Internal quotation marks omitted).

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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 (8t h Cir. 1990); and Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997).

7Accordingly, absent some indication that Congress

intended to incorporate constitutional standards of cruel and unusual punishment into the procedures for fili ng a law suit in forma pauperis, Eighth Amendment analys is is of little assistance in determining congressional i ntent 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 st rikes" provision was twofold. Congress was clearly concern ed with continuing to afford in forma pauperis filing statu s 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 indi gent prisoner whose circumstances created an "imminent d anger of serious physical injury." Had Congress wanted to limit the latter concern to only those inmates who allege d a violation of the Eighth Amendment, it would have sa id 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 err ed here. For example, in Helling v. McKinney, 509 U.S. 25, 3 4, 113

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7. In interpreting 28 U.S.C. S 1915(d) which allowe d dismissal of a frivolous in forma pauperis complaint prior to enac tment of the PLRA,

the Court stated:

In enacting the federal in forma pauperis st atute, Congress
intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, ci vil 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, unlik e a paying litigant,
lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits. In respon se to this concern, Congress included subsection (d) as part of the statute, which allows the courts to dismiss an in forma pau peris complaint if
satisfied that the action is frivolous or ma licious.

Denton v. Hernandez, 504 U.S. 25, 31 (1992) (intern al quotation marks and citations omitted). Congress incorporated a sim ilar balance into the "three strikes" provision of the PLRA.

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

Court held that a claim of exposure to environmenta l
tobacco smoke states a cause of action for violatio n of the Eighth Amendment protection against cruel and unusu al punishment even though the inmate is asymptomatic because the health risk posed by involuntary exposu re to second hand smoke was "sufficiently imminent". Ther e, the Court rejected the argument that a claim could not be established absent a claim of present injury. The C ourt stated "the Court of Appeals cases to the effect th at the Eighth Amendment protects against sufficiently immi nent dangers as well as current unnecessary and wanton infliction of pain and suffering are legion." Id. T hus, we will not read the language of S 1915(g) to require that the "imminent danger" allegation be accompanied by alle gations of an existing serious physical injury in order to bring a prisoner within the statutory exception to the "thr ee strikes" provision. It is sufficient that the condi tion poses an imminent danger of serious physical injury.

This does not however, mean that a district court m ust accept any and all allegations of injury as suffici ent to forestall application of 28 U.S.C. S 1915(g). Neith er our decision here, nor our holding in Gibbs v. Roman pr events a district court from discrediting factual claims o f imminent danger that are "clearly baseless," i.e., allegatio ns that are
fantastic or delusional and rise to the level of th e"irrational or wholly incredible." Denton, 504 U.S. at 33, 112 S.Ct. at 1733. We do caution, however, that the inquiry a co urt 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 Ha ines 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 considerat ion and decision." Gibbs v. Roman, 116 F.3d at 87 n.7.8

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8. We are mindful that this procedure will often ti mes necessitate further factfinding proceedings once the imminent danger al legation is challenged; a byproduct of the PLRA most likely not contemplated by Congress, but which must nonetheless be handled by the courts.

9III.

For the above reasons, we will reverse the district court's order of dismissal and remand for further proceedin gs.

A True Copy:

Teste:

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

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