09-2797
Gibson v. City Municipality of New York



                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT
                                       ____________________

                                            August Term, 2011

                 (Argued: January 19, 2012                   Decided: August 14, 2012)

                                            Docket No. 09-2797

                                          ____________________

BENNIE GIBSON,

                                           Plaintiff-Appellant,

                           v.

CITY MUNICIPALITY OF NEW YORK,
COMMISSIONER DEPARTMENT OF CORRECTION,
DEPUTY CO, WARDEN OF C-95, RECEIVING RM,
CAPTAIN OF C-95, RECEIVING RM, JOHN DOES 1,
JOHN DOES 2, JOHN DOES 3, JOHN DOES 4, JOHN
DOES 5, LEGAL AID ATTORNEY SCHWARTZ,
DIRECTOR KIRBY PSYCHIATRIC, MS. LEECH, MS.
DAVINO OR SAVINO OF TREATMENT TEAM,
DIRECTOR CREEDMORE PSYCH, MS./DOCTOR
SINGH, MR./DOCTOR REDDY,

                                    Defendants-Appellees.

                                          ____________________

Before: WALKER, LEVAL, and POOLER, Circuit Judges.

         Appeal from a judgment of the United States District Court for the Southern District of

New York (Leonard B. Sand, J.) denying Bennie Gibson’s motion for leave to proceed in forma

pauperis and dismissing his complaint. The district court concluded that Gibson, who had been

charged with a crime and was being held prior to trial at a mental health facility in New York at
the time he filed his complaint, was a “prisoner” within the meaning of the Prison Litigation

Reform Act, and thus was barred from proceeding in forma pauperis because he had previously

submitted three or more frivolous filings in federal court. See 28 U.S.C. § 1915(g). Because we

conclude that Gibson was indeed a “prisoner” within the meaning of the Act, we affirm the

judgment of the district court.

       Affirmed.

                                        ____________________

                                  BENNIE GIBSON, on the brief, Malone, NY, pro se.

                                  MICHELLE SKINNER (Sara L. Shudofsky, on the brief), Spears
                                  & Imes LLP, New York, NY, pro bono amicus curiae in support
                                  of Appellant.

                                  ELLEN RAVITCH (Stephen J. Mcgrath, on the brief) (Michael A.
                                  Cardozo, Corporation Counsel of the City of New York), New
                                  York, NY, for Municipal Defendants-Appellees.

                                  SUDARSANA SRINIVASAN (Barbara D. Underwood, Solicitor
                                  General, Steven C. Wu, Assistant Solicitor General, on the brief)
                                  (Eric T. Schneiderman, Attorney General of the State of New
                                  York), New York, NY, amicus curiae in support of Appellees.

PER CURIAM:

       This appeal presents the question of whether a person who has been charged with a crime

and is being held prior to trial under a temporary order of observation at a mental health

institution, pursuant to New York state law, is a “prisoner” within the meaning of the Prison

Litigation Reform Act. See 28 U.S.C. § 1915(g). We hold that such a person is indeed a

“prisoner” within the meaning of the PLRA and thus is subject to the Act’s limitations on

proceeding in forma pauperis in federal court.




                                                   2
                                        BACKGROUND

       Bennie Gibson was charged with criminal mischief in the third degree in violation of

New York state law. A state court judge found that Gibson was not competent to stand trial.

The judge filed a temporary order of observation, pursuant to New York Criminal Procedure

Law Section 730.40, transferring Gibson to the custody of the state’s mental health

commissioner for a period not to exceed ninety days, so that Gibson could receive “treatment . . .

to restore [his] capacity” to stand trial on the criminal charge against him. New York law

distinguishes between “final” and “temporary order[s] of observation.” N.Y. Crim. Proc. Law §

730.40(1). Both orders transfer a person “to the custody of the [state’s mental health]

commissioner for care and treatment in an appropriate institution for a period not to exceed

ninety days,” although a person detained under a final order of observation may then be held for

a longer period of time at “an appropriate hospital.” Id. Gibson was eventually sent to Kirby

Forensic Psychiatric Facility (“Kirby”), a state-run mental health institution in New York.1


       1
          Gibson was initially transferred to Creedmoor Psychiatric Center because officials
“mistakenly believed” that the state court judge had issued a final, as opposed to temporary,
order of observation. Once they learned of their mistake, however, they transferred Gibson to
Kirby. As the district court noted:

              Incapacitated defendants are treated very differently depending on
              whether they are committed pursuant to a Final Order of
              Observation or a Temporary Order of Observation. An individual
              committed under a Final Order is normally committed to a civil
              hospital, where he is converted to civil status, and receives care
              and treatment intended to enable him to function in the
              community. An individual committed under a Temporary Order of
              Observation is normally committed to a forensic hospital where he
              receives treatment designed to render him capable of standing trial
              on the criminal charges against him. Because the goal of treatment
              was to restore Gibson’s capacity rather than to prepare him for
              release into community, the [New York State Office of Mental
              Health] transferred Gibson from Creedmoor to Kirby.
(footnotes omitted).

                                                3
       While Gibson was detained at Kirby, he filed a complaint in federal district court alleging

that various defendants had violated his civil rights. Gibson also requested that the district court

permit him to proceed in forma pauperis, so that he would not have to pay the ordinary court

fees required to file a complaint.

       While federal law generally permits a district court to waive such fees for those who

cannot afford them, see 28 U.S.C. § 1915(a)(1), Congress passed the Prison Litigation Reform

Act (“PLRA”) in 1995 in an attempt to limit abuse of the legal system by prisoners who

repeatedly file frivolous lawsuits. See Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997). The

PLRA generally prohibits a “prisoner” who has filed three or more frivolous actions in federal

court from filing another lawsuit without first paying the required fees. See 28 U.S.C. § 1915(g).

The Act itself defines “the term ‘prisoner’” to include “any person . . . detained in any facility

who is accused of . . . violations of criminal law.” Id. § 1915(h).

       The district court concluded that even though Gibson was not confined in a jail or a

prison, he was nonetheless a “prisoner” within the meaning of the PLRA and thus was subject to

the Act’s restrictions on proceeding in forma pauperis in federal court. Moreover, Judge Sand

determined that because of Gibson’s previous frivolous filings, he was barred by the PLRA from

filing another complaint without first paying the required fees.2 Accordingly, Judge Sand denied

       2
          In concluding that Gibson was subject to the PLRA’s restrictions, the district court
noted Gibson’s “repeated filing of frivolous and non-meritorious actions” and cited an August
2000 order of the Southern District of New York that “barred [Gibson] from filing any further
actions in this Court without first applying in advance for leave to file any new complaint.”
(internal quotation mark omitted).

        Gibson’s amicus counsel argues on appeal that the district court erred by not explicitly
referring to three of Gibsons’s lawsuits that had been dismissed under circumstances described
in 28 U.S.C. § 1915(g) and thus qualified as “strikes” within the meaning of the PLRA.
Kalinowski v. Bond, 358 F.3d 978, 978 (7th Cir. 2004) (“Three strikes and you’re out, under the
Prison Litigation Reform Act as well as the rules of baseball . . . .”).

                                                  4
Gibson’s motion to proceed in forma pauperis and ultimately dismissed his complaint.

       Following Gibson’s appeal to this Court, we initially requested that the district court

make certain findings of fact related to Gibson’s detention at Kirby in order to supplement the

record and assist appellate review. While we requested that the district court make certain

factual findings, we retained jurisdiction over Gibson’s appeal in accordance with our decision in

United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994). Following our order for supplementation

of the record, the case was reassigned to the Honorable Shira A. Scheindlin, who made the

factual findings that we had requested. We now consider the merits of Gibson’s appeal in light

of those findings.

       On appeal, Gibson argues that he was not a “prisoner” within the meaning of the PLRA

and thus was not subject to the PLRA’s restrictions on filing actions in federal court without

paying the required fees. For the following reasons, we disagree.

                                         DISCUSSION

       “We review de novo a district court’s ruling pursuant to 28 U.S.C. § 1915.” Polanco v.

Hopkins, 510 F.3d 152, 155 (2d Cir. 2007).




        We do not believe, however, that federal law requires a district court to specify, in an
order dismissing a prisoner’s complaint pursuant to 28 U.S.C. § 1915(g), the particular orders on
which the court relies. Cf. Harris v. City of N.Y., 607 F.3d 18, 23-24 (2d Cir. 2010). But see
Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 812 (7th Cir. 1998) (“[W]e hold that in the order
denying leave to proceed in forma pauperis the district court must cite specifically the case
names, case docket numbers, districts in which the actions were filed, and the dates of the orders
dismissing the actions.”).
        Nonetheless, we note that when a district court dismisses a prisoner’s complaint pursuant
to Section 1915(g) without citing or otherwise identifying the three prior dismissals that provide
the basis for the court’s determination, and the prisoner argues on appeal that he had not in fact
filed three prior actions that had been dismissed under circumstances described in Section
1915(g) and thus had not accumulated three strikes under the PLRA, it may in certain
circumstances be necessary for a reviewing court to remand the case for further proceedings in
order to determine whether the prisoner had indeed accumulated three strikes.

                                                5
       Federal law generally prohibits a district court from permitting “a prisoner” to file a

lawsuit without first paying the ordinary fees required of other litigants, “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.” 28 U.S.C. § 1915(g).

Moreover, the PLRA states that “the term ‘prisoner’” includes “any person . . . detained in any

facility who is accused of . . . violations of criminal law.” Id. § 1915(h).

       We have previously made clear that the relevant time at which a person must be “a

prisoner” within the meaning of the PLRA in order for the Act’s restrictions to apply is “the

moment the plaintiff files his complaint.” Harris v. City of N.Y., 607 F.3d 18, 21-22 (2d Cir.

2010). At the time Gibson filed his complaint, he was detained at Kirby pursuant to a temporary

order of observation. See N.Y. Crim. Proc. Law § 730.40(1).3

       Under New York law, “when a defendant is in the custody of the commissioner [of

mental health] pursuant to a temporary order of observation . . . , the criminal action pending

against the defendant in the court that issued such order is suspended until the superintendent of



       3
          Gibson signed his complaint and handed it over to be mailed to officials at Kirby on
November 20, 2008. His complaint was received by the district court on December 2, 2008.
While papers are generally deemed filed on the date they are received by a court, see Fed. R.
Civ. P. 5(d)(2), a complaint submitted by a prisoner proceeding pro se is deemed filed on the
date that he “turn[s] his complaint over to prison officials.” Dory v. Ryan, 999 F.2d 679, 682 (2d
Cir. 1993). We have not yet determined whether this rule, which was derived from the Supreme
Court’s decision in Houston v. Lack, 487 U.S. 266 (1988), extends to pro se litigants who are
confined to mental health institutions as opposed to prisons. See Walker v. Jastremski, 430 F.3d
560, 564 n.4 (2d Cir. 2005) (“[O]ur holding is in no way meant to preclude a later panel . . . from
devising a Houston-like rule that might deal appropriately with people” who are “confined to a
mental hospital (or in any other governmental custody)” (internal quotation marks omitted)).
We, however, need not decide that question to resolve this appeal because Gibson was confined
at Kirby pursuant to a temporary order of observation on both the date he submitted his
complaint to officials at the institution and the date the district court received it.

                                                  6
the institution in which the defendant is confined determines that he is no longer an incapacitated

person.” N.Y. Crim. Proc. Law § 730.60(2) (emphasis added); see also N.Y. Crim. Proc. Law §

730.10(3) (defining “[c]ommissioner” (internal quotation marks omitted)). While the criminal

proceedings against a defendant being held pursuant to a temporary order of observation are

suspended, New York law makes clear that those proceedings must later “terminate for all

purposes” if “the defendant is in the custody of the commissioner at the expiration of the period

prescribed in [the] temporary order of observation.” N.Y. Crim. Proc. Law § 730.40(2)

(emphasis added).

        Because New York law explicitly specifies that the criminal proceedings against a

person, such as Gibson, who is being held in a mental health institution pursuant to a temporary

order of observation, are merely suspended during his confinement and observation—and only

terminate if the person is still being held at the time the temporary order expires or the criminal

charges at issue are otherwise dropped—we have little trouble concluding that Gibson was still a

“person . . . detained in [a] facility who is accused of . . . [a] violation[] of criminal law” at the

time he filed his complaint, and thus was a “prisoner” under the PLRA. 28 U.S.C. § 1915(h)

(internal quotation marks omitted). See Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004)

(concluding that “a person charged with a felony, whose criminal proceedings are held in

abeyance during treatment for mental illness,” is a “prisoner” within the meaning of the PLRA);

Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000) (“[T]he natural reading of the text” of the

PLRA “is that, to fall within the definition of ‘prisoner,’ the individual in question must be

currently detained as a result of [an] accusation, conviction, or sentence for a criminal offense.”

(emphasis added)).




                                                    7
                                      CONCLUSION

       For the foregoing reasons, and because we find no merit in Gibson’s remaining

arguments, the judgment of the district court is AFFIRMED.




                                              8
