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


11-13-1998

Gibbs v. Cross
Precedential or Non-Precedential:

Docket 96-3618




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Recommended Citation
"Gibbs v. Cross" (1998). 1998 Decisions. Paper 264.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/264


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Filed November 13, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3618

HENRY GIBBS, JR.,
Appellant

v.

OFFICER PAUL CROSS,
Maintenance Supervisor

On Appeal From the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 96-cv-00213J)

Argued: May 19, 1998

Before: ROTH, McKEE Circuit Judges,
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.
       JOHN G. KNORR, III, Esq. (Argued)
       AMY ZAPP, Esq.
       Office of Attorney General of
       Pennsylvania
       Department of Justice
       Strawberry Square
       15th Floor
       Harrisburg, PA 17120

       Attorneys for Appellee

       ALISA B. KLEIN, Esquire (Argued)
       United States Department of Justice
       Civil Division, Appellate Staff
       601 D. Street, N.W.
       Washington, D.C. 20530-0001

       Attorney for Intervenor-Appellee

OPINION OF THE COURT

McKEE, Circuit Judge:

Henry Gibbs appeals the district court's dismissal of his
pro se civil rights complaint. The district court denied
Gibbs' request for in forma pauperis status and dismissed
the complaint pursuant to the "three strikes" provision of
28 U.S.C. S 1915(g). For the reasons that follow, we will
reverse and remand to the district court for a determination
of whether Gibbs was in "imminent danger" at the time of
the alleged incidents.

I.

On August 7, 1996, Gibbs filed a pro se civil rights
complaint pursuant to 42 U.S.C. S 1983, alleging that
Cross, a prison maintenance supervisor, was causing Gibbs
to be subjected to dangerous conditions while confined to
the Restricted Housing Unit ("RHU") at the State
Correctional Institute at Somerset.1 Although it is not clear
_________________________________________________________________

1. By Order dated December 18, 1997, this Court appointed counsel to
represent Mr. Gibbs.

                                2
from the complaint, it appears that Gibbs spent at least
several months in a cell in the RHU. He claims that during
this time "dust, lint and shower odor" were continuously
emitted from the cell vent, causing Gibbs to suffer"severe
headaches, change in voice, mucus that is full of dust and
lint, and watery eyes." Appellant's Br. at 6. Gibbs alleges
that prison personnel have not responded to his requests to
address this situation and that he therefore filed this action
seeking monetary damages. When Gibbs filed the action he
remained housed in the RHU.

Gibbs' complaint was accompanied by a motion seeking
leave to proceed in forma pauperis. The case was referred to
a magistrate judge who determined that Gibbs had
previously filed at least three civil actions that had been
dismissed as frivolous and that he was therefore ineligible
to proceed in forma pauperis because of the recently
enacted provisions of 28 U.S.C. S 1915(g). The magistrate
judge further determined that "although [Gibbs] allege[d]
that his health suffered from the dust, lint, and odors in
his cell, the allegations of his complaint do not colorably
raise a claim of imminent danger of serious physical injury"
so as to fit within the exception to S 1915(g). Accordingly,
the magistrate judge recommended that the motion to
proceed in forma pauperis be denied and that the complaint
be dismissed without prejudice to Gibbs' right to refile upon
payment of the required filing fee. The district court
adopted the magistrate judge's Report and
Recommendation as the opinion of the court and dismissed
the complaint.

We granted Gibbs leave to appeal in forma pauperis in
accordance with 28 U.S.C. S 1915(b) and appointed counsel
to assist him with this appeal. Because Cross had not been
served with a copy of the complaint, we directed that
relevant portions of the record be forwarded to the state's
Attorney General to allow for participation in the appeal.2 In
_________________________________________________________________

2. When referencing the arguments presented on appeal by the state's
Attorney General, we will refer throughout this opinion to the brief of
appellee Cross although we are cognizant of the fact that Cross is not
technically a party to this appeal since he was never served with a copy
of the complaint.

                               3
addition, the United States intervened and has filed a brief
defending the constitutionality of S 1915(g).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 the district
court's interpretation of 28 U.S.C. S 1915(g) is plenary. See
Gibbs v. Roman, 116 F.3d 83, 85 (3d Cir. 1997); Moody v.
Security Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir.
1992).

II.

Congress enacted the Prison Litigation Reform Act, Pub.
L. No. 104-134, 110 Stat. 1321 S 801 ("PLRA") in 1996. One
provision of the PLRA, often referred to as the "three
strikes" provision, is at issue here. That provision is
codified at 28 U.S.C. S 1915(g) and provides 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.

The bar imposed by this provision does not preclude an
inmate from bringing additional suits. It does, however,
deny him or her the right to obtain in forma pauperis
status.

Gibbs does not dispute that he has accumulated at least
three strikes.5 He argues instead that the "three strikes"
_________________________________________________________________

3. The United States takes no position with respect to the issue of
whether Gibbs falls within the statutory exception to S 1915(g).

5. We held in Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d
143 (3d Cir. 1997), that dismissals as frivolous prior to the PLRA's
enactment count as strikes. Gibbs' "strike" history includes at least the
following civil actions: Gibbs v. Sobina, No. 95-00150 (W.D. Pa. Aug. 25,

                                4
provision should not bar him from proceeding in forma
pauperis here because he has alleged "imminent danger of
serious physical injury" within the exception contained in
S 1915(g). Gibbs also asserts a constitutional challenge to
28 U.S.C. S 1915(g), arguing that it denies indigent inmates
their constitutional right of access to the courts, and denies
them the equal protection guarantee of the Fifth
Amendment. His constitutional claims were not raised in
the district court.

For the reasons that follow, we conclude that the district
court erred in ruling that Gibbs was not eligible for in forma
pauperis status as a matter of law, and we will therefore
remand this matter for further proceedings consistent with
this opinion. See Roman, 116 F.3d at 86. We will refrain
from reaching the constitutional claims, but Gibbs is free to
raise those on remand.5

As noted above, prisoners who are in "imminent danger
of serious physical injury" are exempted from the "three
strikes" provision in 28 U.S.C. S 1915(g). Gibbs has alleged
that he was forced to breathe particles of dust and lint
which were continuously being dispersed into his cell
through the ventilation system. By the time Gibbsfiled the
underlying civil action in the district court, he had been
living under these conditions for some time and claims to
have been suffering from "severe headaches, change in
voice, mucus that is full of dust and lint, and watery eyes."
Gibbs argues that, depending on the nature of the particles
_________________________________________________________________

1995) (dismissed as frivolous), appeal dismissed as frivolous, No. 95-
3481 (3d Cir. Nov. 21, 1995); Gibbs v. Monsour, No. 95-00167 (W.D. Pa.
Aug. 25, 1995) (dismissed as frivolous); Gibbs v. Musser, No. 95-00227
(W.D. Pa. Dec. 29, 1995) (dismissed as frivolous), aff'd, No. 96-3031 (3d
Cir. Dec. 31, 1996); Gibbs v. Tajeske, No. 95-00230 (W.D. Pa. Dec. 29,
1995) (dismissed as frivolous), appeal dismissed as frivolous, No. 96-
3030 (3d Cir. April 4, 1996); Gibbs v. Sobina , No. 95-00255 (W.D. Pa.
Dec. 29, 1995) (dismissed as frivolous), aff'd, No. 96-3029 (3d Cir. Dec.
31, 1996).

5. As we stated in Roman, "[s]ince Gibbs failed to raise these issues
before the district court . . . we expressly decline to address or decide
them here even though they have been briefed before us." 116 F.3d at
87.

                               5
he is breathing, there is a significant possibility that he is
under imminent danger of serious physical injury, and he
thus falls within the statutory exception of S 1915(g). Cross,
on the other hand, argues that the physical symptoms
experienced by Gibbs are not "serious" within the meaning
of S 1915(g). Counsel for Cross attempts to minimize Gibbs'
allegations by emphasizing their speculative nature.

       The Court should reject this invitation [to speculate].
       Obviously, if sheer bootstrapping conjecture of this
       kind is sufficient to state an `imminent danger of
       serious physical injury' - if it is enough for a prisoner
       to say . . . that there is dust in his cell and for all he
       knows it might be asbestos, . . . then the three strikes
       rule will become a dead letter, a rule swallowed by its
       exception. This cannot have been Congress' intention.

Appellee's Br. at 15.

However, Gibbs does not merely allege that he is in a
dusty cell. He alleges that unidentified dust particles were
in his lungs and mucus, and that he is suffering from
severe headaches, watery eyes, and a change in his voice as
a result. See A. 16-17. We are unimpressed with appellee's
attempt to minimize such allegations by emphasizing their
speculative nature. Inmates ought to be able to complain of
unsafe drinking water without awaiting the onset of
dysentery. Helling v. McKinney, 113 S.Ct. 2475, 2480-81
(1993). ( "a prison inmate also could successfully complain
about demonstrably unsafe drinking water without waiting
for an attack of dysentery.") Inmates ought to be able to
complain about "unsafe, life-threatening condition[s] in
their prison" without waiting for something to happen to
them.). After all, it is the prison administration, not the
inmates, who are in the best position to determine the
precise nature of any such contaminants in those
situations where health hazards are not readily apparent to
the unaided senses.

Thus, in Gibbs v. Roman, we instructed district courts to
evaluate the allegations in a complaint filed by a pro se
prisoner facing a S 1915(g) bar under our liberal pleading
rules, construing all allegations in favor of the complainant
and crediting those allegations of "imminent danger" that

                               6
have gone unchallenged. Gibbs v. Roman, 116 F.3d at 86.
Here, neither the magistrate judge, nor the district court
judge had the benefit of that ruling, and neither judge
credited Gibbs' allegations regarding the conditions in the
RHU.

Moreover, notwithstanding appellee's rejoinder, it is
common knowledge that improper ventilation and the
inhalation of dust and lint particles can cause disease. For
example, the dangers posed by exposure to friable asbestos
are all too well known. See, e.g., LaBounty v. Coughlin, 137
F.3d 68, 74 n.5 (2d Cir. 1998) ("friable asbestos poses a
significant health risk because airborne particles can
become lodged in lungs and in the respiratory tract and
over time can lead to asbestosis, mesothelioma and lung
cancer").

Cross bases much of his argument to the contrary upon
several cases wherein courts have determined that
symptoms such as headaches and nausea do not amount
to a serious physical injury or that exposure to friable
asbestos does not amount to a physical injury at all absent
some manifestation of asbestosis symptomatology.6
However, these cases were decided under an Eighth
Amendment analysis, and that is quite different from the
statutory analysis required under 28 U.S.C. S 1915(g). An
Eighth Amendment claim requires a showing of "wanton
and unnecessary infliction of pain [or conditions that are]
grossly disproportionate to the severity of the crime
warranting imprisonment . . .", Rhodes v. Chapman, 452
U.S. 337, 346 (1981), or that a prison official or employee
has acted with deliberate indifference to a serious medical
need. See, e.g. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976). Moreover, "[i]n assessing claims
that conditions of confinement are cruel and unusual,
courts must bear in mind that their inquiries spring from
constitutional requirements. . . ." Rhodes, 452 U.S. at 351.
(Internal quotation marks omitted).
_________________________________________________________________

6. The cases cited by the Commonwealth include Doty v. County of
Lassen, 37 F.3d 540 (9th Cir. 1994); O'Laughlin v. Doe, 920 F.2d 614
(9th Cir. 1990); Givens v. Jones, 900 F.2d 1229 (8th Cir. 1990); and
Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997).

                               7
Accordingly, absent some indication that Congress
intended to incorporate constitutional standards of cruel
and unusual punishment into the procedures for filing a
law suit in forma pauperis, Eighth Amendment analysis is
of little assistance in determining congressional intent in
enacting 28 U.S.C. S 1915(g). Our inquiry into the proper
interpretation and application of S 1915(g) reveals no such
intent.

Rather, Congress's intent in enacting the "three strikes"
provision was twofold. Congress was clearly concerned with
continuing to afford in forma pauperis filing status to
inmates who had a history suggestive of abusing the
judicial system.7 However, Congress was also fully
cognizant of the need to afford redress to any indigent
prisoner whose circumstances created an "imminent danger
of serious physical injury." Had Congress wanted to limit
the latter concern to only those inmates who alleged a
violation of the Eighth Amendment, it would have said so.

Nevertheless, even some of the language that courts have
used in the context of an Eighth Amendment analysis
supports our conclusion that the district court erred here.
For example, in Helling v. McKinney, 509 U.S. 25, 34, 113
_________________________________________________________________

7. In interpreting 28 U.S.C. S 1915(d) which allowed dismissal of a
frivolous in forma pauperis complaint prior to enactment of the PLRA,
the Court stated:

       In enacting the federal in forma pauperis statute, Congress
intended
       to guarantee that no citizen shall be denied an opportunity to
       commence, prosecute, or defend an action, civil or criminal, in any
       court of the United States, solely because ... poverty makes it
       impossible ... to pay or secure the costs of litigation. At the
same
       time that it sought to lower judicial access barriers to the
indigent,
       however, Congress recognized that a litigant whosefiling fees and
       court costs are assumed by the public, unlike a paying litigant,
       lacks an economic incentive to refrain from filing frivolous,
       malicious, or repetitive lawsuits. In response to this concern,
       Congress included subsection (d) as part of the statute, which
       allows the courts to dismiss an in forma pauperis complaint if
       satisfied that the action is frivolous or malicious.

Denton v. Hernandez, 504 U.S. 25, 31 (1992) (internal quotation marks
and citations omitted). Congress incorporated a similar balance into the
"three strikes" provision of the PLRA.

                               8
S.Ct. 2475, 2481, 125 L.Ed.2d 22 (1993), the Supreme
Court held that a claim of exposure to environmental
tobacco smoke states a cause of action for violation of the
Eighth Amendment protection against cruel and unusual
punishment even though the inmate is asymptomatic
because the health risk posed by involuntary exposure to
second hand smoke was "sufficiently imminent". There, the
Court rejected the argument that a claim could not be
established absent a claim of present injury. The Court
stated "the Court of Appeals cases to the effect that the
Eighth Amendment protects against sufficiently imminent
dangers as well as current unnecessary and wanton
infliction of pain and suffering are legion." Id. Thus, we will
not read the language of S 1915(g) to require that the
"imminent danger" allegation be accompanied by allegations
of an existing serious physical injury in order to bring a
prisoner within the statutory exception to the "three
strikes" provision. It is sufficient that the condition poses
an imminent danger of serious physical injury.

This does not however, mean that a district court must
accept any and all allegations of injury as sufficient to
forestall application of 28 U.S.C. S 1915(g). Neither our
decision here, nor our holding in Gibbs v. Roman prevents
a district court from discrediting factual claims of imminent
danger that are "clearly baseless," i.e., allegations that are
fantastic or delusional and rise to the level of the"irrational
or wholly incredible." Denton, 504 U.S. at 33, 112 S.Ct. at
1733. We do caution, however, that the inquiry a court may
make under 28 U.S.C. S 1915(e) (allowing dismissal of
frivolous complaints), See Neitzke v. Williams, 490 U.S.
319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), is not the
same as the one made when there is a challenge to a claim
of "imminent danger" under 28 U.S.C. S 1915(g). The latter
is only intended to determine whether a complainant may
proceed without full payment of filing fees. See Haines v.
Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
"Once the fee barrier has been overcome, the merits of the
cause of action are itself available for consideration and
decision." Gibbs v. Roman, 116 F.3d at 87 n.7.8
_________________________________________________________________

8. We are mindful that this procedure will often times necessitate further
factfinding proceedings once the imminent danger allegation is
challenged; a byproduct of the PLRA most likely not contemplated by
Congress, but which must nonetheless be handled by the courts.

                               9
III.

For the above reasons, we will reverse the district court's
order of dismissal and remand for further proceedings.

A True Copy:
Teste:

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

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