                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-1997

Gibbs v. Roman
Precedential or Non-Precedential:

Docket 96-3534




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Recommended Citation
"Gibbs v. Roman" (1997). 1997 Decisions. Paper 122.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/122


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Filed June 6, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3534

HENRY GIBBS, JR.,

Appellant

v.

MS. MARCIA ROMAN, SCI SOMERSET LIBRARIAN

UNITED STATES OF AMERICA, INTERVENOR*

(* Per Court order of 4/17/97)

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 96-cv-00112J)

Argued May 1, 1997

BEFORE: MANSMANN, McKEE and GARTH, Circuit Judges

(Opinion filed June 6, 1997)
Nancy Winkelman (Argued)
Joseph Lukens
Dee Dee Rutkowski
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103

Attorneys for Appellant

D. Michael Fisher
Attorney General
Amy Zapp
Senior Deputy Attorney General
John G. Knorr, III (argued)
Chief Deputy Attorney General
Chief, Litigation Section
Office of the Attorney General
of Pennsylvania
Department of Justice
Strawberry Square
15th Floor
Harrisburg, PA 17120

John P. Hoyle
U.S. Department of Justice
Civil Division, Appellate Staff
10th and Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

Attorneys for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge:

Appellant Henry Gibbs appeals from the final order of the
district court dismissing his §1983 suit under the "three
strikes rule" of the Prison Litigation Reform Act, 28 U.S.C.
§1915(g).1 We will vacate the district court's order and
remand for further proceedings.
_________________________________________________________________

1. 18 U.S.C. §1915(g) provides:

In no event shall a prisoner bring a civil action or appeal a judgment

                    2
I.

Appellant Henry Gibbs, a prisoner who filed his
complaint pro-se but is presently represented by counsel,
brings this §1983 action against Marcia Roman, the
librarian at SCI-Somerset. Gibbs was formerly incarcerated
at SCI-Somerset. Gibbs alleges that defendant Roman
violated his constitutional rights when, in November 1995,
she permitted an inmate-law clerk to read Gibbs' legal
papers, reflecting information that he had been a
government informant. This allegedly resulted in threats
against Gibbs' life and physical attacks against him by
other inmates.2

On August 27, 1996, after entertaining Gibbs' Motion to
Proceed In Forma Pauperis ("i.f.p."), the district court
adopted the Report and Recommendation of the Magistrate
Judge, and dismissed Gibbs' complaint under 28 U.S.C.
§1915(g).3 The court found that Gibbs did not qualify for
_________________________________________________________________

if the prisoner has, on 3 or more 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.

2. More specifically, while Gibbs was "in the hole", he sent legal papers
to librarian Roman to get them photocopied, with knowledge that they
would be handled by inmate-law clerks. The content of the papers
revealed that Gibbs had been a government informant. After reading the
papers, the inmate-law clerk who was making the photocopies for Gibbs,
allegedly confronted Gibbs, called him a "snitch", threatened to kill him,
and told other inmates that he was an informant, resulting in two
alleged physical attacks against Gibbs.

Six months after these attacks, in May 1996, Gibbsfiled this §1983
action against the librarian, alleging deliberate indifference to his safety,
health and serious medical need; mental stress, conspiracy and
retaliation. Gibbs sought compensatory damages in the amount of
$80,000, and punitive damages in excess of $80,000.

In November 1996, Gibbs was transferred from SCI-Somerset to SCI-
Graterford.

3. In his Report and Recommendation, the Magistrate Judge
recommended that Gibbs' i.f.p. motion be denied without prejudice to

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i.f.p. status since he had previously filed three frivolous
lawsuits and was not in "imminent danger of serious
physical injury". 28 U.S.C. §1915(g). Gibbs then filed the
instant appeal.

The district court had subject matter jurisdiction over
this §1983 matter pursuant to 28 U.S.C. §1331. We have
appellate jurisdiction pursuant to 28 U.S.C. §1291. Our
review is plenary.

II.

The primary question that we must answer in this appeal
is whether Gibbs' i.f.p. petition meets the criterion of
§1915(g) which provides an exception to the "three strikes"
rule for inmates who are in "imminent danger of serious
physical injury".4

Gibbs' complaint charged that on December 4th and 10th
1995, among other things,

 1. Inmate Holmes threatened to kill Plaintiff
because of the letter from U.S. Attorney [name deleted],
that revealed that Plaintiff was a government witness...

****

 4. Plaintiff states as a fact that, on two seperate
[sic] occasions, Plaintiff was physically attacked by
several inmates, because of the exposure that Plaintiff
was a government witness...
_________________________________________________________________

Gibbs submitting the full filing fee within 20 days. The district court,
however, after entertaining Gibbs' objections and adopting the Report
and Recommendation, ordered that the entire case should be dismissed,
and did not indicate whether the dismissal was "with prejudice" or
"without prejudice". We therefore interpret the dismissal to be "with
prejudice", since the district court did not indicate to the contrary.
4. Gibbs raised various constitutional challenges to the Prison Litigation
Reform Act which Roman responded to in her papers. Gibbs argued that
the Act violates due process by being impermissibly retroactive, since it
treats pre-enactment lawsuits as "strikes"; that the statute violates the
constitutional rights of indigent prisoners by restricting their access to
court; and that the statute violates 5th amendment equal protection by
being both over-broad and under-inclusive. We decline to reach these
constitutional challenges at this time. See infra Part IV.

                    4
 5. Plaintiff alleges that, due to this life threatening
situation, Plaintiff has suffered further mental stress...

 5. [sic] Plaintiff alleges that ...Plaintiff 's life is in
constant danger because of Defendants [sic] delibrate
[sic] indifference to Plaintiff 's safety.

In dismissing Gibbs' case, the district court found that
although Gibbs had made vague allegations that his"life is
in constant danger" as a result of one inmate calling him a
"snitch" and threatening his life, and other inmates
attacking him, Gibbs had failed to demonstrate imminent
harm, and therefore did not fall within the statutory
exception.

On appeal, Gibbs argues that his contention that he was
physically attacked on at least two occasions satisfies the
"imminent danger" exception to the statute. He further
argues that, when considering an i.f.p. application, a court
must construe all factual allegations in favor of the
petitioner, citing Denton v. Hernandez, 504 U.S. 25, 32
(1992).

In response, defendant Roman argues that Gibbs' life was
not in danger at the time he filed his complaint, since he
waited six months to file suit and did not produce any
evidence of actual danger. Roman further argues that, by
filing a suit for damages rather than injunctive relief, Gibbs
was not seeking to protect his physical safety. Therefore
she claims that allowing Gibbs' suit to go forward (i.e. by
finding that he falls within the statutory exception) would
not serve to remedy the alleged dangerous situation, which
is the goal of the exception. Finally, Roman argues that,
even if Gibbs had been in danger when he filed the suit, he
has since been transferred to another prison, and therefore
need no longer fear assaults.5

The amicus brief filed by United States argues that we
should remand this case to the district court for further
fact-finding on the issue of imminent danger. The United
_________________________________________________________________

5. Roman also notes that, although Gibbs only had $4.43 in his prison
account at the time of filing suit, Gibbs, in the twelve months preceding
the filing of his complaint, had a total of $497 that passed in and out of
his account.

                     5
States contends that the district court dismissed Gibbs'
claim of danger "without substantive discussion", and that
further probing of the issue is necessary in order to
determine whether Gibbs falls within the "imminent
danger" exception. The United States argues that, although
Gibbs' allegations of danger were vague, "his allegations are
sufficient to require further inquiry". The amicus brief also
recommends that the district court explore the impact of
Gibbs' subsequent transfer to another prison, and whether
the transfer served to alleviate any "imminent danger".

III.

Upon review, we hold that the district court erred in
discrediting Gibbs' allegations of imminent danger when it
summarily dismissed his complaint under the "three
strikes" rule. Under our liberal pleading rules, during the
initial stage of litigation, a district court should construe all
allegations in a complaint in favor of the complainant. See,
e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)
(discussing 12(b)(6) standard); Markowitz v. Northeast Land
Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).6 In this case,
Gibbs' claims of danger as stated in his complaint were
rejected on their face by both the Magistrate Judge and the
district court. Neither reviewed the complaint in light of our
standard which requires that credit be given to all
allegations in the complaint. No challenge to the allegations
was made by defendant Roman (understandably, because
the complaint had yet to be served upon her).

Gibbs' complaint clearly set out: (1) allegations of past
attacks by other inmates; (2) allegations of death threats
made by other inmates -- thereby substantiating a claim of
imminent danger of serious physical harm; (3) a claim for
damages stemming directly from the physical harm posed
to him by other inmates as an alleged result of Roman's
actions. Gibbs' complaint therefore provided allegations of
imminent danger experienced at the time the alleged
_________________________________________________________________

6. We also note that pro se complaints are held to less stringent pleading
requirements. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). In
the instant case, although Gibbs had an attorney on appeal, Gibbs filed
his initial complaint pro se.

                     6
incidents took place (December 1995), sufficient to survive
the "three strikes" rule. By failing to consider the
allegations of imminent danger, the district court ignored
both the dictates of 1915(g) and, more particularly, the
standard of giving credit to the allegations of the
complainant as they appeared in the complaint.

We hold, therefore, that a complaint alleging imminent
danger -- even if brought after the prior dismissal of three
frivolous complaints -- must be credited as having satisfied
the threshold criterion of §1915(g) unless the"imminent
danger" element is challenged. If the defendant, after
service, challenges the allegations of imminent danger (as
Roman has done here on appeal), the district court must
then determine whether the plaintiff 's allegation of
imminent danger is credible, as of the time the alleged
incident occurred, in order for the plaintiff to proceed on
the merits i.f.p. Of course, if the defendant disproves the
charge that the plaintiff was placed in imminent danger at
the time of the incident alleged, then the threshold criterion
of §1915(g) will not have been satisfied and the plaintiff
may not proceed absent the payment of the requisitefiling
fee. We emphasize that the proper focus when examining
an inmate's complaint filed pursuant to §1915(g) must be
the imminent danger faced by the inmate at the time of the
alleged incident, and not at the time the complaint was
filed.

In resolving a contested issue of imminent danger, the
district court may rely upon evidence supplied by sworn
affidavits or depositions, or, alternatively, may hold a
hearing.7
_________________________________________________________________

7. After the threshold issue of imminent danger is resolved as noted in
text, the focus of the litigation may generally shift to other issues.
Satisfaction of the "imminent danger" element does no more than permit
the complainant to proceed with his or her cause of action without
payment of the filing fee. Once the fee barrier has been overcome, the
merits of the cause of action itself are then available for consideration
and decision.

For example, if the substance of the complaint deals with claims
unrelated to the issue of imminent danger (such as allegations of
inadequate prison conditions or discrimination or violation of religious

                    7
Thus, on remand, if the district court determines that
Gibbs, indeed, was in imminent danger of bodily harm in
December 1995 when the alleged incidents occurred, he
should be granted i.f.p. status and his complaint should be
allowed to go forward on the merits. If, on the other hand,
the district court determines that at the time the"imminent
danger" incidents occurred, Gibbs' allegations of imminent
danger did not satisfy the §1915(g) standard, then at that
time, Gibbs' i.f.p. petition can properly be dismissed under
§1915(g), and Gibbs will be able to proceed only if he pays
the required filing fee.

IV.

The constitutional issues advanced by Gibbs which we
have declined to reach here, see note 4 supra, can properly
be raised in the district court in the first instance. Since
Gibbs failed to raise these issues before the district court in
the instant case, we expressly decline to address or decide
them here even though they have been briefed before us.

Accordingly, we will vacate the district court's order and
remand for proceedings consistent with the foregoing
opinion.

A True Copy:
Teste:

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



_________________________________________________________________

practices) and the claim of imminent danger stemmed from retaliation
for the filing of the complaint, once the §1915(g) threshold has been met,
the "imminent danger" issue may be totally irrelevant to the adjudication
of the merits of the alleged constitutional violations. This is so, even
though in the present case, the alleged assaults are a factor in Gibbs'
merits complaint.



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