REVISED

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 95-31249

____________

VALENTINO B ADEPEGBA,

Plaintiff-Appellant,

versus

BILLY G HAMMONS, Individually and in his

official capacity as special agent assigned to

F C I Oakdale; JOHN L NIXON, Individually and

in his official capacity as acting supervisory

special agent at F C I Oakdale,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Louisiana

December 31, 1996

Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Valentino Adepegba, a federal prisoner, appeals the district

court’s dismissal of his in forma pauperis civil rights action as

frivolous. His appeal raises several issues of first impression in

this circuit regarding new in forma pauperis provisions of the

Prison Litigation Reform Act.

I

Adepegba is a Nigerian citizen who entered the United States
 

1 See Adepegba v. Sheriff, No. 94-40134 (5th Cir. Jul. 21,

1994) (affirmance of section 2241 dismissal without prejudice for

failure to exhaust administrative remedies); Adepegba v. United

States Postal Service, No. 94-10259 (5th Cir. Jul. 28, 1994)

(reversal and remand of Bivens action dismissed by district court

as frivolous); Adepegba v. Morgan, No. 94-10681 (5th Cir. Sept. 20,

1994) (affirming section 1983 dismissal under unamended section

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legally in 1982. While in the United States, Adepegba has been

convicted of crimes including cocaine possession, illegal

possession of firearms, and mail fraud. Proceeding pro se and in

forma pauperis (“i.f.p.”), Adepegba filed this civil rights action

pursuant to Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619

(1971), against Billy Hammons and John Nixon, agents of the

Immigration and Naturalization Service (“INS”). Adepegba alleges

that Hammons and Nixon did not follow INS procedure in his

interview and that they falsified an INS report that was admitted

into evidence at his deportation hearing.

The district court construed Adepegba’s complaint to state two

causes of action and dismissed each, one as frivolous because it

was barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129

L. Ed. 2d 383 (1994), and the other for failure to exhaust

administrative remedies under the Federal Tort Claims Act, 28

U.S.C. §§ 1346, 2671 et seq. Adepegba filed a timely notice of

appeal December 14, 1995.

This appeal is not Adepegba’s first; indeed he is a frequent

filer in this court. We have considered eleven prior Adepegba

appeals, and we have dismissed all of them))three of them as

frivolous.1 On April 26, 1996, after Adepegba filed notice of
1915(d)); Adepegba v. Louisiana, No. 94-40749 (5th Cir. Nov. 17,

1994) (affirming section 1983 dismissal as frivolous on statute of

limitations grounds and dismissing appeal as frivolous); Adepegba

v. INS, No. 94-40615 (5th Cir. Apr. 20, 1995) (petition for review

of BIA decision dismissed as frivolous); Adepegba v. Caplinger, No.

95-30614 (5th Cir. Jul. 11, 1995) (appeal of section 2241 action

dismissed for lack of jurisdiction); United States v. Adepegba, No.

95-10596 (5th Cir. Mar. 11, 1996) (dismissing habeas corpus

appeal); United States v. Adepegba, No. 95-31297 (5th Cir. Mar. 20,

1996) (denial of motion for sanctions, temporary restraining order,

and preliminary injunction); Adepegba v. INS, No. 95-60390 (5th

Cir. Mar. 21, 1996) (dismissing as frivolous claims that district

court erred in failing to consider objections to magistrate

judge’s report and failing to provide hearing); In re Adepegba, No.

95-00065 (5th Cir. Jun. 6, 1996 (denying petition for mandamus);

Adepegba v. INS, No. 95-30626 (5th Cir. July 3, 1996) (consolidated

dismissal of Adepegba v. INS, No. 95-30470 (appealing dismissal of

section 2241 petition challenging final order of deportation) and

Adepegba v. Hall, No. 95-30808 (same)).

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appeal in the instant case, the President signed into law the

Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321

(1996) (“PLRA” or “Act”), which modifies the requirements for

proceeding in forma pauperis (“i.f.p.”) in federal courts. Among

other things, the PLRA revokes prisoners’ privileges to proceed

i.f.p. if they have, on three prior occasions during detention, had

an action or appeal dismissed as frivolous, malicious, or for

failing to state a claim. 28 U.S.C. § 1915(g), as amended by PLRA.

Section 1915(g) contains an exception that allows prisoners whose

privileges have been revoked to proceed i.f.p. in cases involving

imminent danger of serious physical injury. Id.

II

Before we address the merits of Adepegba’s dismissal in the

district court, we must first decide whether the new provisions of

the PLRA apply. The new statute provides:

In no event shall a prisoner bring a civil action or
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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. § 1915(g), as amended. This case presents two threshold

issues: First, does section 1915(g) govern Adepegba’s appeal,

which was filed before the Act became law? Second, do Adepegba’s

prior dismissals bring him within the ambit of the “three strikes”

provision of section 1915(g)? Both are issues of first impression

in this circuit.

A

First we decide whether section 1915(g) applies to cases

pending on the effective date of the statute. Adepegba filed a

notice of appeal in this case on December 14, 1995, months before

the PLRA became law. The question of whether to apply a new

statute to a case pending on its effective date is governed by the

Supreme Court’s recent opinion in Landgraf v. USI Film Products,

511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).

Landgraf established a two-part test to determine whether the

statute should apply. First, courts should determine “whether

Congress has expressly prescribed the statute’s proper reach.”

Landgraf, 511 U.S. at ___, 114 S. Ct. at 1505 (emphasis added). If

it has, the court must respect the stated will of Congress. Id.

Second, where the statute does not contain an express effective

date, courts must determine whether the statute would “impair

rights a party possessed when he acted, increase a party’s
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liability for past conduct, or impose new duties with respect to

transactions already completed.” Id. If it does, courts should

not apply the statute to the pending case. Id.

Employing this analysis, we find that Congress has specified

no effective date for the PLRA. See Green v. Nottingham, 90 F.3d

415, 419 (10th Cir. 1996) (holding that PLRA lacks the kind of

“unambiguous directive” required by Landgraf). No section

evidences Congressional intent, so we apply the default rule that

the PLRA became effective on the day it was signed into law.

Norman J. Singer, 2 Sutherland Statutory Construction, § 33.06 at

12 (5th ed. 1993). Congress was also silent as to whether courts

should apply the new statute in cases pending on the PLRA’s

effective date. However, as the Court noted in Landgraf, the

absence of specific legislative authorization does not

automatically render improper a court’s decision to apply a new

statute to events that predated its passage. 511 U.S. at ___, 114

S. Ct. at 1501. We therefore turn to step two of the Landgraf

analysis.

Under step two, we should not apply the statute if we find

that it would do any of three things: “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.” Id. at ___, 114 S. Ct. at 1505. We do not believe

that applying the provisions of section 1915(g) in this case runs

afoul of the second step of Landgraf. We have long recognized that

there is no absolute “right” to pursue a civil appeal i.f.p.;
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rather it is a privilege extended to those unable to pay filing

fees in a timely manner. Startti v. United States, 415 F.2d 1115,

1116 (5th Cir. 1969). Furthermore, every limitation of a privilege

does not count as a liability or a duty. Section 1915(g) governs

procedure, and it does little more than apply the same rules to

prisoners that apply to everyone else who brings an action or

appeal.

We note that “[c]hanges in procedural rules may often be

applied in suits arising before their enactment without raising

concerns about retroactivity.” Landgraf, 511 U.S. at ___, 114 S.

Ct. at 1502. The Supreme Court has long held that, because rules

of procedure govern secondary conduct rather than primary conduct,

applying them to cases pending on their effective date does not

violate presumptions against retroactivity. Id. at ___, 114 S. Ct.

at 1502, citing McBurney v. Carson, 99 U.S. 567, 569, 25 L Ed. 378

(1879). Therefore the Court has upheld procedural changes even

where they work to the disadvantage of defendants in pending cases.

Landgraf, 511 U.S. at ___, 114 S. Ct. at 1502 n.28, citing Dobbert

v. Florida, 432 U.S. 282, 293-94, 97 S. Ct. 2290, 2298-99, 53 L.

Ed. 2d 344 (1977); Collins v. Youngblood, 497 U.S. 37, 110 S. Ct.

2715, 111 L. Ed. 2d 30 (1990); Beazell v. Ohio, 269 U.S. 167, 46 S.

Ct. 68, 70 L. Ed. 216 (1925).

Section 1915 is a procedural statute governing the process by

which indigent individuals, including prisoners, bring civil

actions or appeals in the federal courts. Before amendment,

section 1915 allowed qualifying prisoners to bring an action or
 

2 Green’s case is on slightly different procedural footing,

however, since he filed his appeal on May 7, 1996, after the

President signed the PLRA. It is unclear to us that Landgraf is

the proper mode of analysis for such cases. See Landgraf, 511 U.S.

at ___, 114 S. Ct. at 1488 (noting that the Court granted

certiorari to decide whether provisions of the Civil Rights Act of

1991 applied to a Title VII case pending on appeal when the statute

was enacted). We limit today’s holding to appeals pending when the

PLRA was signed.

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appeal without prepaying court fees, which are normally in excess

of $100. See 28 U.S.C. § 1913 note (Judicial Conference Schedule

of Fees). The amended provisions of section 1915(b) allow

qualifying individuals to pay the filing fee in installments over

time. 28 U.S.C. § 1915(b), as amended. Although section 1915(g)

attaches consequences to past actions, we find that these

consequences are matters of procedure. Section 1915(g) does not

affect a prisoner’s substantive rights, and it does not block his

or her access to the courts. A prisoner may still pursue any claim

after three qualifying dismissals, but he or she must do so without

the aid of the i.f.p. procedures. We therefore find that

application of this procedural rule to pending appeals does not

raise the retroactivity concerns discussed in Landgraf. Accord

Green v. Nottingham, 90 F.3d, 415, 420 (10th Cir. 1996) (holding

that section 1915(g) does not run afoul of Landgraf because it is

a “procedural rule”);2 Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025

(7th Cir. 1996) (“All § 1915 has ever done is excuse prepayment of

docket fees; a litigant remains liable for them, and for other

costs, although poverty may make collection impossible.”). 

The second reason that application of section 1915(g) does not

raise retroactivity concerns is that it does not impose new or
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additional liabilities, but instead requires collection of a fee

that was always due. In providing procedures to litigate in forma

pauperis, Congress created an exception to the general rules under

28 U.S.C. §§ 1911-14, which impose filing fees on federal court

litigants. Section 1915(g) puts prisoners on the same footing as

every other petitioner in federal court. We hold that this is not

a duty or a liability under Landgraf.

The revocation of this privilege is not new, either. Before

the PLRA, courts routinely revoked a prisoner’s ability to proceed

i.f.p. after numerous dismissals. See, e.g., Green v. Carlson,

649 F.2d 285, 287 (5th Cir.) (per curiam) (court enjoined

petitioner, who had filed over 500 state and federal suits, from

proceeding i.f.p. unless complaints specifically alleged

constitutional deprivation), cert. denied, 454 U.S. 1087, 102 S.

Ct. 646, 70 L. Ed. 2d 623 (1981). By adding section 1915(g),

Congress determined that three qualifying dismissals constituted

per se abuse of the i.f.p. procedures. The “three strikes”

provision merely codifies an existing practice in the courts

designed to prevent prisoners from abusing the i.f.p. privilege.

Prisoners who are not allowed to proceed i.f.p. may pursue

their substantive claims just as anyone else by paying the filing

fee. This requirement is neither novel nor penal. It does not

increase a prisoner’s liability, but merely puts prisoners who

abuse a privilege on the same footing as everyone else. We find

that section 1915(g) does not impair prisoners’ rights, nor

increase their liability, nor impose a new duty under Landgraf. We
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therefore apply the statute to this appeal. See Green, 90 F.3d at

420 (holding that “three strikes” provision does not raise

retroactivity concerns).

B

Having determined that section 1915(g) governs this appeal, we

must now consider whether Adepegba has three or more qualifying

dismissals under the statute. Congress provided no instructions to

aid us in determining exactly what counts as a dismissal under

amended section 1915(g). To complicate this determination,

Adepegba has afforded us a number of different and creative

dismissal combinations.

It is straightforward that affirmance of a district court

dismissal as frivolous counts as a single “strike.” In September

1994, we affirmed a district court’s dismissal of an Adepegba

section 1983 claim against the City of Balch Springs. Adepegba v.

Morgan, No. 94-10681 (5th Cir. Sept. 20, 1994). Adepegba failed to

allege any policy or custom of the city that resulted in the

violation of his constitutional rights; the district court

dismissed as frivolous and we affirmed. We interpret the fact that

actions or appeals qualify, and the fact that any “court of the

United States” may provide the forum, to mean that dismissals as

frivolous in the district courts or the court of appeals count for

the purposes of the statute. In Adepegba v. Morgan, we only

addressed the merits below, not the merits of the appeal. Such a

disposition merely states that the district court did not err in

determining that the underlying action was frivolous. Therefore we
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find that the district court’s dismissal of Adepegba’s section 1983

claim counts, but our affirmance, standing alone, does not.

Adepegba’s claim against Balch Springs is strike one.

However, we find it plain that reversal of a dismissal as

frivolous nullifies the “strike.” In Adepegba v. United States

Postal Service, No. 94-10259 (5th Cir. Jul. 28, 1994), we reversed

and remanded a district court frivolousness dismissal. Although

Adepegba filed a claim that was dismissed by the district court,

our subsequent reversal lifts the strike from his record. We note

that it is possible to read the statute otherwise; section 1915(g)

only requires that on three or more prior occasions a prisoner have

had an action dismissed. The statute does not proscribe any cure

for erroneous dismissals. Such an extreme reading would count the

entry of three dismissals, even though each had been reversed, an

absurd result we cannot believe Congress intended. We hold that,

by using the phrase “dismissed on the grounds that it is

frivolous,” Congress did not mean to include dismissals later

reversed. Because such dismissals are reinstated on appeal, such

claims are not properly considered “dismissed” for the purposes of

the statute.

By similar reasoning, we decline to count against Adepegba the

district court’s dismissal as frivolous in the instant case))at

least for now. A dismissal should not count against a petitioner

until he has exhausted or waived his appeals. Any other reading of

the statute poses a risk of inadvertently punishing nonculpable

conduct. For example, an indigent prisoner’s fourth claim could
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expire while his first three dismissals were being reversed on

appeal. A hyper-literal reading of the statute might also bar a

prisoner’s appeal of an erroneous third strike, since the appeal

would follow three prior dismissals. It is uncontroversial from

the plain language of the statute that Congress intended section

1915(g) only to penalize litigation that is truly frivolous, not to

freeze out meritorious claims or ossify district court errors. We

accordingly read dismissals under the statute to include only those

for which appeal has been exhausted or waived. Because Adepegba

did not appeal the Fifth Circuit cases cited in this opinion (two

affirmances and one dismissal as frivolous) within ninety days,

those strikes qualify under the statute. See S. Ct. Rule 13

(establishing deadlines for appeal).

By contrast, both the frivolous appeal and a lower court’s

dismissal as frivolous count. In November 1995, we affirmed a

district court order dismissing as frivolous Adepegba’s Fourth

Amendment claims against the State of Louisiana arising out of a

1985 traffic stop. Adepegba v. Louisiana, No. 94-40749 (5th Cir.

1994). In his appeal, Adepegba did not argue the merits of his

dismissed claims, which we deemed abandoned; thus we affirmed the

district court’s dismissal. Strike two.

In the same appeal, Adepegba raised different issues, arguing

that the district court improperly dismissed his complaint without

service of process and without issuing interrogatories. Neither is

required, and we separately dismissed his appeal as frivolous under

Fifth Cir. R. 42.2. Congress suggests in the statute that any
 

3 In addition, we dismissed as frivolous two other Adepegba

appeals before the effective date of the PLRA, which would also

count under the statute. See Adepegba v. INS, No. 94-40615 (5th

Cir. April 20, 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 228,

133 L. Ed. 2d 157 (1995); United States v. Adepegba, No. 95-10596

(5th Cir. Mar. 11, 1996).

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appeal dismissed as frivolous counts against the petitioner; it

makes no exception for frivolous appeals of district court

dismissals. Therefore we find that Congress would have us count

both the dismissal in the district court and the separate dismissal

of the appeal as frivolous. This holds true whether the case is

dismissed under Fifth Cir. R. 42.2, unamended section

1915(d)(allowing courts to dismiss cases or appeals as frivolous),

the new section 1915(e)(2) (as amended by PLRA) (allowing courts to

dismiss cases at any time for a broad array of reasons), new

section 1915A(b) (as amended by PLRA) (same), 42 U.S.C.

§ 1997(e)(7)(c) (as amended by PLRA) (allowing courts to dismiss

section 1983 prison conditions cases) or any other grounds

independent of the district court’s disposition. Adepegba’s appeal

in Adepegba v. Louisiana is strike three.3

We therefore find that Adepegba has three or more strikes

under the statute. Adepegba is out, and not just in this appeal.

Under the terms of the statute, he may pursue another action in

federal court i.f.p. only if he is in “imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g), as amended. Therefore,

except for cases involving an imminent danger of serious physical

injury, we bar him from proceeding further under the statute and

dismiss all of Adepegba’s i.f.p. appeals pending in this court. He
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may resume any claims dismissed under section 1915(g), if he

decides to pursue them, under the fee provisions of 28 U.S.C.

§§ 1911-14 applicable to everyone else.

III 

Therefore we DISMISS Adepegba’s appeal in this case, as well

as any other appeal not involving physical injury, pending in this

circuit on the date of this opinion.