                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-9-2007

Nicholas v. Atty Gen PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2011




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"Nicholas v. Atty Gen PA" (2007). 2007 Decisions. Paper 234.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/234


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CLD-17                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 07- 2011
                                  ________________

                              EDWARD J. NICHOLAS,
                                                Appellant

                                           v.

   ATTORNEY GENERAL OF PA THOMAS CORBETT; LOWELL WITMER;
        FRANCIS R. FILLIPI; JAMES P. BARKER, President Judge
         Dauphin County Courthouse; DISTRICT JUSTICE MARY
     CROSS; RICHARD LONG; DISTRICT JUDGE MARSHA STEWART;
                 DIANE WOODSIDE; GEORGE ZOZOS
                    __________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                              (D.C. Civil No. 06-cv-00129)
                    District Judge: Honorable Sean J. McLaughlin
                            __________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 25, 2007

              Before: AMBRO, FUENTES, and JORDAN, Circuit Judges

                           (Opinion filed: November 9, 2007)
                                ___________________

                                      OPINION
                                ___________________

PER CURIAM

     Edward J. Nicholas appeals from the District Court’s order denying his motion for
leave to proceed in forma pauperis.1 We have jurisdiction pursuant to 28 U.S.C. § 1291,

and review issues of statutory construction de novo. See Abdul-Akbar v. McKelvie, 239

F.3d 307, 311 (3d Cir. 2001). We will summarily vacate the District Court’s order and

remand for further proceedings.

       The District Court denied Nicholas’s motion on the grounds that he had three

strikes under 28 U.S.C. § 1915(g) and had not alleged that he was in “imminent danger.”

All of the strikes on which the District Court relied, however, were dismissals of

complaints that had not yet been entered when Nicholas filed the instant suit. See W.D.

Pa. Civ. Nos. 06-112, 06-98, and 06-201. Moreover, Nicholas went on to appeal each of

the three dismissals, and those appeals were not completed at the time Nicholas filed his

complaint. See C.A. Nos. 06-4362, 06-4361, 06-4367. A dismissal does not qualify as a

strike for § 1915(g) purposes unless and until a litigant has exhausted or waived his or her

appellate rights. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775,

780 (10th Cir. 1999); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

Therefore, Nicholas did not have three strikes when the District Court denied his motion,

and the District Court erred in requiring him to demonstrate that he was under imminent

danger of serious physical injury before proceeding in forma pauperis at that time. See 28

U.S.C. § 1915(g).

       The fact that this Court has since dismissed Nicholas’s appeals of the



   1
    Nicholas is currently on parole and was granted in forma pauperis status for purposes
of this appeal.

                                             2
aforementioned District Court orders under 28 U.S.C. § 1915(e)(2)(B), see C.A. Nos. 06-

4362, 06-4361, 06-4367, does not change that result. By its terms,

§ 1915(g) governs only the circumstances under which a prisoner may “bring” a civil

action in forma pauperis, which means that its impact must be assessed at the time a

prisoner files his or her complaint. See Abdul-Akbar, 239 F.3d at 313; Gibbs v. Ryan,

160 F.3d 160, 162-63 (3d Cir. 1998). Thus, only the strikes actually earned at the time

the complaint was filed are relevant. The statute does not authorize courts to revoke in

forma pauperis status if a prisoner later earns three strikes. See Gibbs, 160 F.3d at 163

(explaining that Congress “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.”).

       Accordingly, we will summarily vacate the District Court’s order and direct the

District Court to evaluate Nicholas’s motion for leave to proceed in forma pauperis in

light of this opinion. The two motions Nicholas has filed on appeal are denied.




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