               Case: 15-15358       Date Filed: 07/14/2017      Page: 1 of 10


                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-15358
                              ________________________

                         D.C. Docket No. 1:13-cv-22818-KMW



DAVID CHARLES SUSSMAN,

                                                                        Plaintiff-Appellant,

                                            versus

SGT. TREVOR HAMPTON,
ASST. WARDEN M. BOAN,

                                                                    Defendants-Appellees.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                       (July 14, 2017)

Before JULIE CARNES and FAY, Circuit Judges, and GOLDBERG, * Judge.

PER CURIAM:

       *
          Honorable Richard W. Goldberg, Judge, United States Court of International Trade,
sitting by designation.
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      David Charles Sussman, a Florida prisoner, appeals the dismissal of his pro

se 42 U.S.C. § 1983 complaint under the three-strikes provision of the Prison

Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g). In dismissing Sussman’s

complaint, the district court relied on Coleman v. Tollefson, 135 S. Ct. 1759

(2015), which the court concluded applies retroactively. On appeal, Sussman

argues that Coleman only applies prospectively. Alternatively, he contends that

the district court erred by dismissing his complaint without affording him the

opportunity to pay the filing fee. Because Coleman applies retroactively and

Sussman failed to raise his second argument before the district court, we affirm.

                                I. BACKGROUND

      Sussman filed his complaint in 2013, alleging that Sergeant Trevor Hampton

encouraged an inmate to assault him in December 2010 and beat him in December

2010 and March 2011. He asserted that Assistant Warden Marie Boan was aware

of the events that took place in December and the fact that he was housed under

Sergeant Hampton’s supervision in March, but she did nothing to stop the abuse.

He conceded that he previously had filed four lawsuits that were dismissed as

frivolous or for failure to state a claim; however, he argued that two of these cases

did not count as strikes under § 1915(g) because they were pending on appeal.

Sussman also filed a motion for leave to proceed in forma pauperis, which the

district court granted.


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      After the district court granted Sussman leave to proceed in forma pauperis

and ordered service on the defendants, the Supreme Court issued its decision in

Coleman, holding that a prior dismissal under one of the grounds enumerated in

§ 1915(g) “counts as a strike even if the dismissal is the subject of an appeal.”

Coleman, 135 S. Ct. at 1763. Sergeant Hampton and Assistant Warden Boan

subsequently filed a motion to dismiss, arguing that, under Coleman, each of

Sussman’s prior dismissals counted as a strike.

      A magistrate judge issued a report and recommendation, recommending that

the district court dismiss Sussman’s complaint under § 1915(g). In light of

Coleman, the magistrate judge determined the fact that Sussman’s appeals were

not resolved until after he filed the instant complaint was irrelevant to whether he

was a three-striker. Because Sussman had filed three or more suits that were

dismissed under a statutorily enumerated ground, he was barred from proceeding

in forma pauperis. Sussman objected to the report and recommendation, arguing

that Coleman did not apply retroactively given the circumstances of his case. He

did not request permission to pay the filing fee in order to avoid dismissal.

      The district court granted the defendants’ motion to dismiss. Applying the

three-factor test set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349

(1971), the district court concluded that the first factor—whether Coleman

established a new principle of law by overruling clear past precedent or by


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resolving an issue of first impression whose resolution was not clearly

foreshadowed—weighed against retroactive application. On the other hand,

retroactively applying Coleman would further the purpose of the three-strikes

provision by conserving judicial resources and limiting frivolous and abusive

filings. Finally, the court found that applying Coleman retroactively would not be

inequitable. Accordingly, the court determined that Coleman applies retroactively

and dismissed Sussman’s complaint. Sussman filed this timely appeal.

                                 II. DISCUSSION

      We review de novo a district court’s interpretation of the PLRA. Daker v.

Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278, 1283 (11th Cir. 2016), cert. denied,

137 S. Ct. 1227 (2017). We may affirm the district court for any reason supported

by the record, even if not relied upon by the district court. Wright v. City of

St. Petersburg, 833 F.3d 1291, 1294 (11th Cir. 2016).

      Under the three-strikes provision of the PLRA, a prisoner may not bring a

civil action or appeal a judgment in a civil proceeding in forma pauperis if the

prisoner has, on three or more prior occasions while incarcerated or detained,

brought an action or appeal that was dismissed on the grounds that it was frivolous,

malicious, or failed to state a claim, unless the prisoner is in imminent danger of




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serious physical injury. 1 28 U.S.C. § 1915(g). Prior to 2015, the majority of

circuits had determined that a dismissal on one of the statutorily enumerated

grounds did not count as a strike while an appeal of that dismissal remained

pending. Coleman, 135 S. Ct. at 1762. We had not decided the issue.

       In May 2015, the Supreme Court held “that a prisoner who has accumulated

three prior qualifying dismissals under § 1915(g) may not file an additional suit in

forma pauperis while his appeal of one such dismissal is pending.” Id. at 1765.

The Court concluded, “A prior dismissal on a statutorily enumerated ground counts

as a strike even if the dismissal is the subject of an appeal. That, after all, is what

the statute literally says.” Id. at 1763. The Court noted that the three-strikes

provision was “designed to filter out the bad claims and facilitate consideration of

the good.” Id. at 1764 (quoting Jones v. Bock, 549 U.S. 199, 204, 127 S. Ct. 910,

914 (2007)). “To refuse to count a prior dismissal because of a pending appeal

would produce a leaky filter,” as it would allow a prisoner to file many additional

lawsuits while his appeal of a prior dismissal was pending. Id.

       Generally, a new rule of law is retroactively applicable. Wagner v. Daewoo

Heavy Indus. Am. Corp., 314 F.3d 541, 544 (11th Cir. 2002) (en banc). In

Chevron Oil, the Supreme Court set forth a three-factor test to determine whether a

decision may instead only apply prospectively. Chevron Oil, 404 U.S. at 106-07,

       1
        Sussman has not argued before the district court or on appeal that he was in imminent
danger of serious physical injury.
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92 S. Ct. at 355. To apply prospectively, the decision must establish a new

principle of law, “either by overruling clear past precedent on which litigants may

have relied, or by deciding an issue of first impression whose resolution was not

clearly foreshadowed.” Id. at 106, 92 S. Ct. at 355 (citation omitted). Next, we

look to the purpose of the rule in question and whether retroactive application

would further or hinder its operation. Id. at 106-07, 92 S. Ct. at 355. Finally, we

consider whether retroactive application of the rule would be inequitable. Id. at

107, 92 S. Ct. at 355. The second and third prongs of the Chevron Oil test are

objective inquiries that examine the impact of a newly announced rule on the entire

class of people potentially affected by the new rule. Glazner v. Glazner, 347 F.3d

1212, 1219 (11th Cir. 2003) (en banc).

      When the Supreme Court applies a rule of federal law to the parties before it,

every court is required to give retroactive effect to that decision. Harper v. Va.

Dep’t of Taxation, 509 U.S. 86, 90, 113 S. Ct. 2510, 2513 (1993). “[T]he legal

imperative to apply a rule of federal law retroactively after the case announcing the

rule has already done so must prevail over any claim based on a Chevron Oil

analysis.” Id. at 98, 113 S. Ct. at 2518 (alteration and internal quotation marks

omitted).

      In the instant appeal, the parties dispute whether Harper mandates the

retroactivity of Coleman. We need not decide the issue, however, because


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Coleman is retroactively applicable regardless of whether Harper or Chevron Oil

applies. Assuming that Harper controls, Coleman is retroactively applicable no

matter whether the Chevron Oil factors favor retroactivity or prospectivity. See id.

Assuming instead that the Chevron Oil test applies,2 the factors as a whole weigh

in favor of retroactivity.

       As to the first Chevron Oil factor, Coleman established a new rule of federal

law because the Court decided an issue of first impression: whether a prior

dismissal on a statutorily enumerated ground counts as a strike if the dismissal is

the subject of an appeal. See Coleman, 135 S. Ct. at 1763. While the Supreme

Court indicated that its conclusion flowed from the literal language of § 1915(g),

this does not mean that the resolution of the issue was clearly foreshadowed, given

that the Court sided with the minority view among the Circuit Courts of Appeals.

See id. at 1762-63. Accordingly, the first Chevron Oil prong is satisfied and

weighs in favor of applying Coleman prospectively. See Chevron Oil, 404 U.S. at

106, 92 S. Ct. at 355.

       The second Chevron Oil factor, by contrast, weighs in favor of retroactivity.

The purpose of the three-strikes provision of the PLRA is to curtail abusive

prisoner litigation and conserve judicial resources. Rivera v. Allin, 144 F.3d 719,

       2
         See Glazner, 347 F.3d at 1216-17 (“Although prospectivity appears to have fallen into
disfavor with the Supreme Court, the Court has clearly retained the possibility of pure
prospectivity and, we believe, has also retained the Chevron Oil test, albeit in a modified form,
as the governing analysis for such determinations in civil cases.” (citations omitted)).
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727 (11th Cir. 1998), abrogated on other grounds by Jones, 549 U.S. 199, 127 S.

Ct. 910. The three-strikes provision fulfills this purpose by preventing prisoners

from filing lawsuits in forma pauperis if they previously have filed three or more

suits that were dismissed as frivolous or malicious or for failure to state a claim.

See 28 U.S.C. § 1915(g). Applying Coleman retroactively would further the

purpose of § 1915(g) because it would preserve judicial resources and curtail

lawsuits filed by prisoners who have abused the legal system. See Rivera, 144

F.3d at 727. Applying Coleman prospectively, on the other hand, would require

the expenditure of additional judicial resources litigating cases such as this one. It

also would produce a “leaky filter,” as it would allow certain three-strikers (those

who appealed one or more prior qualifying dismissals) to pursue civil lawsuits in

forma pauperis, which is precisely what § 1915(g) was designed to prevent. See

28 U.S.C. § 1915(g); Coleman, 135 S. Ct. at 1764. Thus, the second Chevron Oil

factor weighs in favor of retroactivity. See Chevron Oil, 404 U.S. at 106-07, 92 S.

Ct. at 355.

      Applying Coleman retroactively also would not be sufficiently inequitable to

warrant prospective application. While Sussman argues that it is “simply unfair”

to tell litigants who “have spent considerable time and energy pursuing their

claims[ ] that they never should have been allowed to proceed at all,” 3 applying


      3
          Appellant’s Br. 19.
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Coleman retroactively would only result in the revocation of a procedural privilege

for affected prisoners. See Rivera, 144 F.3d at 724 (“[P]roceeding [in forma

pauperis] in a civil case is a privilege, not a right.”). Moreover, litigants who

would be affected by our decision to apply Coleman retroactively—i.e.,

three-strikers in Florida, Georgia, and Alabama who filed a fourth or subsequent

lawsuit while their appeals of one or more strikes remained pending—did not rely

on any of our prior cases when deciding whether to proceed in their latest lawsuits,

as we had not decided whether a prior dismissal counts as a strike when it is

pending on appeal. Cf. Wagner, 314 F.3d at 545 (concluding that the third

Chevron Oil factor weighed in favor of prospective application of a new rule

because some of the affected “plaintiffs likely relied upon [one of our prior

decisions] in determining whether to seek leave to amend before the district court

or to appeal the dismissal” of their complaints). Therefore, on balance, the

Chevron Oil test does not weigh sufficiently in favor of prospectivity to “justify

abandoning the ‘presumptively retroactive effect’” of Coleman. See Glazner, 347

F.3d at 1221 (quoting Harper, 509 U.S. at 96, 113 S. Ct. at 2517).

      Finally, we do not reach Sussman’s argument that the district court

improperly dismissed his complaint without allowing him to pay the filing fee, as

he failed to raise the issue before the district court. See Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Although Sussman proceeded


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pro se at the district court level, even pro se litigants must raise before the lower

court any issues they wish to argue on appeal. See Albra v. Advan, Inc., 490 F.3d

826, 828 n.1 (11th Cir. 2007) (refusing to consider arguments that a pro se litigant

failed to present in the district court). In light of the foregoing, we affirm the

district court’s dismissal of Sussman’s complaint.

      AFFIRMED.




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