                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-13-1998

Gibbs v. Ryan
Precedential or Non-Precedential:

Docket 96-3528




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Recommended Citation
"Gibbs v. Ryan" (1998). 1998 Decisions. Paper 263.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/263


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Filed November 13, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3528

HENRY GIBBS, JR.,

Appellant

v.

DR. WILLIAM C. RYAN

On Appeal From the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 96-cv-00041J)

Argued: May 19, 1998

Before: Roth, McKee, Circuit Judges and
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.
       ALISA B. KLEIN, Esq. (Argued)
       JOHN P. SCHNITKER, Esq.
       United States Department of Justice
       Civil Division, Appellate Staff
       601 D. Street, N.W.
       Washington, D.C. 20530-0001

       Attorneys for Intervenor-Appellee

       WILLIAM C. RYAN (pro se)
       Somerset SCI
       1590 Walters Mill Road
       Somerset, PA 15510

OPINION OF THE COURT

McKEE, Circuit Judge:

Henry Gibbs appeals from the district court's order
revoking his in forma pauperis status and dismissing his
complaint pursuant to 28 U.S.C. S 1915(g). Gibbs contends
that the district court erred in applying that statute, that
the statute is an unconstitutional denial of the equal
protection of the law, and that it denies him his
fundamental right of access to the courts. For the reasons
that follow, we agree that the district court erred in
applying the statute to Gibbs and revoking his in forma
pauperis status. Accordingly, we will vacate the order of the
district court and remand for further proceedings.

I.

On February 27, 1996, Gibbs filed a civil rights complaint
pursuant to 42 U.S.C. S 1983, alleging that Dr. William C.
Ryan, a physician at the State Correctional Institute at
Somerset, had denied him medical treatment for a back
injury and for injuries Gibbs allegedly sustained when he
inadvertently ingested a piece of metal that was in his food.
The matter was referred to a magistrate judge on that same
day, and the magistrate judge granted Gibbs leave to
proceed in forma pauperis. On March 6, 1996, an order was
filed limiting Gibbs' in forma pauperis status to a waiver of

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the prepayment of the filing fee, and noting that Gibbs may
be responsible for other fees and expenses. The order was
based upon Gibbs' numerous civil rights filings. There is no
indication in the record that the Marshal's fee was ever paid
or that defendant Ryan was ever served.1

On April 26, 1996, while the instant suit was pending in
the district court, Congress enacted the Prison Litigation
Reform Act, Pub. L. No. 104-134 (April 26, 1996) which is
codified at 28 U.S.C. S 1915 ("PLRA"). Section 804 of the
PLRA amends the prior 28 U.S.C. S 1915 to include a new
provision that has come to be known as the "three strikes"
rule. That provision is 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.

28 U.S.C. S 1915(g). Based upon this provision, the
magistrate judge issued a Report and Recommendation
recommending that Gibbs' previously granted in forma
pauperis status be revoked and that he be required to
submit the full filing fee. The district court overruled Gibbs'
_________________________________________________________________

1. We note that the general practice in this Circuit is to grant leave to
proceed in forma pauperis based solely on a showing of indigence. See
Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990). Moreover,
S 1915(c) (re-numbered as S 1915(d)) unequivocally states that "[t]he
officers of the court shall issue and serve all process, and perform all
duties in [ifp] cases" that are not initially dismissed as frivolous by
the
district court. See also Young v. Quinlan, 960 F.2d 351, 359 (3d Cir.
1992) (since district court granted plaintiff leave to proceed in forma
pauperis, it was district court's responsibility to serve process upon all
defendants); Welch v. Folsom, 925 F.2d 666, 670 (3d Cir. 1991) (if
district court does not dismiss complaint as frivolous, court is compelled
to proceed in compliance with S 1915(c)). Since the magistrate judge
found Gibbs eligible to proceed in forma pauperis he should not have
imposed a prepayment requirement. On remand the district court should
order service of the complaint without prepayment of the service fees.

                                3
objections to that Report and Recommendation, adopted
the Report as the court's opinion, and dismissed Gibbs'
complaint.2 This appeal followed. The district court granted
Gibbs leave to appeal in forma pauperis and we appointed
counsel to assist Gibbs with this appeal. The United States
has intervened and filed a brief as amicus curiae limited to
the issues raised by Gibbs' challenge to the
constitutionality of the PLRA.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 issues of
statutory construction and interpretation is plenary. Moody
v. Security Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d
Cir. 1992).

II.

We are thus presented with yet another issue under the
PLRA. We must decide the narrow question of whether a
district court may apply S 1915(g) to revoke in forma
pauperis status that had been granted prior to enactment
of the PLRA. We conclude it can not.

Our inquiry must begin with the language of the statute.
Pennsylvania Dep't of Pub. Welfare v. Davenport, 495 U.S.
552, 557-58, 110 S.Ct. 2126, 2130-31, 109 L.Ed.2d 588
(1990); New Rock Asset Partners, L.P. v. Preferred Entity
Advancements, Inc., 101 F.3d 1492, 1498 (3d Cir. 1996)
(collecting cases). As set forth above, section 1915(g)
provides that a prisoner may not "bring a civil action or
appeal a judgment in a civil action or proceeding[in forma
pauperis] ...." if the prisoner has "three strikes" as specified
in the statute (emphasis added). Despite other ambiguities
that may exist within the text of the PLRA, Congress clearly
_________________________________________________________________

2. We note that the better course is to issue an order denying in forma
pauperis status, directing payment of the fullfiling fee within a
specified
period and dismissing the complaint only if the litigant fails to pay the
filing fee.

3. Since we conclude that 28 U.S.C. S 1915(g) doesn't apply to Gibbs, we
do not reach the constitutional challenge.

                               4
limited the reach of S 1915(g) to "bringing" a civil action or
"appealing" a judgment. Neither term is a term of art and
we therefore assume that Congress intended those common
words to have their ordinary meaning in the PLRA. See In
re TMI, 67 F.3d 1119, 1123 (3d Cir. 1995), cert. denied, 116
S.Ct. 1560 (1996).

In the context of filing a civil action, "bring" ordinarily
refers to the "initiation of legal proceedings in a suit."
Black's Law Dictionary 192 (6th ed. 1990); see also
Random House Dictionary of the English Language 262 (2d
ed. 1987) ("bring" is synonymous with "commence: to bring
an action for damages"). Gibbs commenced his action
against Ryan on February 27, 1996, and his request for in
forma pauperis status was granted that same day. His
complaint was filed, and his action was "brought" when his
motion to proceed in forma pauperis was granted. See
Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 458
(3d Cir. 1996) (complaint "duly filed" after determination
was made that litigant was indigent); Oatess v. Sobolevitch,
914 F.2d 428, 430 n.1 (3d Cir. 1990) (when complaint is
accompanied by motion to proceed in forma pauperis,
rather than payment of the filing fee, complaint is not filed
until the motion has been granted). Thus, Gibbs' complaint
was filed almost two months prior to the effective date of
the PLRA, and his action was brought before the"three
strikes" provision of S 1915(g) became law. Nothing in the
text of the statute leads us to conclude that Congress
intended the "three strikes" provision to apply to actions
that were "pending" as well as actions that were "brought"
under the PLRA. See Chandler v. District of Columbia Dep't
of Corrections, 145 F.3d 1355 (D.C. Cir. 1998); Canell v.
Lightner, 143 F.3d 1210 (9th Cir. 1998); Garcia v. Silbert,
141 F.3d 1415 (10th Cir. 1998).

In Garcia, an inmate filed a S 1983 action in the district
court on April 9, 1996, and was granted leave to proceed in
forma pauperis on April 18, 1996. However, after S 1915(g)
became effective, the district court dismissed Garcia's
claims after determining that at least three of Garcia's prior
suits had been dismissed as frivolous as required under the
"three strikes" provision. The court of appeals reversed
concluding "the plain language of S 1915(g) restricts a

                               5
prisoner's ability to `bring a civil action or appeal a
judgment in a civil action' in forma pauperis." Id. at 1416
(emphasis added). The court reasoned that Garcia's claim
had already been brought and could not subsequently be
dismissed under S 1915(g). In Canell, both the complaint
and the appeal were brought prior to the enactment of the
PLRA. The Court of Appeals for the Ninth Circuit concluded
that "[t]he plain language of the section indicates that it
does not apply to pending cases on appeal, as is the case
here." Canell, 143 F.3d at 1212, (citing Lindh v. Murphy, ___
U.S. ___, 117 S.Ct. 2059, 2062, (1997)). Similarly, the court
in Chandler examined the text of 28 U.S.C. S 1915(g) and
concluded that when "[r]ead in concert with the rest of
section 1915," subsection (g) was intended to apply only at
the time an indigent prisoner files a complaint or an appeal,
and was not intended to apply later in the course of the
proceeding. Chandler, 145 F.3d at 1358-59.

This reasoning is consistent with the holding in cases
where courts have decided whether appellate fees may be
assessed for appeals pending on the effective date of the
PLRA. For example, in Abdul-Wadood v. Nathan, 91 F.3d
1023, 1025 (7th Cir. 1996), the court held that it could not
dismiss two remaining appeals as frivolous because
appellant had used up his allotted "three strikes" during
the pendency of those appeals. The court concluded that
"[s]ection 1915(g) governs bringing new actions or filing new
appeals--the events that trigger an obligation to pay a
docket fee--rather than the disposition of existing cases."
See also Thurman v. Gramley, 97 F.3d 185, 188 (7th Cir.
1996) (holding that the dispositive events for purposes of
the new fee obligations under S 1915(b)(1) are the "bringing"
of a civil action and the "filing" of an appeal. Once these
"milestones" have passed, "fees do not attach to later
activities."), Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998) (application of the PLRA to prisoner's complaint
depends on when complaint is "filed").

In Church v. Attorney General of Virginia, 125 F.3d 210
(4th Cir. 1997), the court applied a Landgraf4 analysis and
_________________________________________________________________

4. Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128
L.Ed.2d 229 (1994).

                               6
held "the new law governing prisoner filing fees should not
govern an action in which the prisoner has already
`properly filed [his action and appeal] under the old
regime.' " Id. at 213, (quoting Landgraf, 511 U.S. at 275
n.29, 114 S.Ct. at 1502 n.29).

However, not all courts that have addressed this issue
have reached the conclusion we reach today. In Covino v.
Reopel, 89 F.3d 105, 108 (2d Cir. 1996), the court
concluded that the PLRA's burdens are "slight and entirely
avoidable," and the fee requirements of S 1915(g) can fairly
apply to prisoners who filed notices of appeal prior to its
enactment date, regardless of whether they had previously
filed in forma pauperis motions or had "carryover" in forma
pauperis status on appeal. However, we are not persuaded.
The proper inquiry does not turn upon considerations of
fairness. Rather, the analysis must focus on congressional
intent. We believe that if Congress had intended the result
reached in Covino it would not have limited the "three
strikes" provision to an inmate's ability to "bring" an action.
Congress could have tied the "three strikes" bar to an
inmate's ability to maintain an action. It did not do so.

We are similarly unpersuaded by the reasoning of
Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996) and
Strickland v. Rankin County Correctional Facility, 105 F.3d
972 (5th Cir. 1997). Without discussion, these courts found
S 1915(g) ambiguous as to whether it should be only
prospectively applied. They therefore proceeded to examine
whether applying S 1915(g) to pending complaints or
appeals would be "retroactive" in effect -- i.e., "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." Landgraf, 511 U.S. at
280. Finding no such retroactive effect, the courts held that
S 1915(g) should be applied even to complaints and appeals
already successfully filed i.f.p. under the old rules. Because
in our view the language of S 1915(g) is plainly prospective,
while other PRLA provisions demonstrate Congress
expressly required retrospective application when it so

                               7
desired, we believe it unnecessary to look beyond the
statute's language to determine when it applies. 5

III.

For the above reasons, we will vacate the district court's
order of dismissal and remand for further proceedings
consistent with this opinion as set forth in Roman, 116
F.3d at 86.

A True Copy:
Teste:

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

_________________________________________________________________

5. As an aside, we note that counsel for the United States, as intervenor,
has taken the position that 28 U.S.C. S 1915(g) should not be applied
here since Gibbs had already been granted in forma pauperis status
before the PLRA was enacted. See Intervenor's Br. at 12.

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