Tony Harris v. City of New York, No. 09-0081 (2d Cir. 2010)

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09-0081-pr Tony Harris v. City of New York 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 _______________ 4 August Term, 2009 5 (Argued: April 12, 2010 Decided: June 2, 2010) 6 Docket No. 09-0081-pr 7 _______________ 8 9 10 TONY HARRIS, 11 v. 12 13 14 CITY OF NEW YORK , WARDEN C-95, C.O. MILLER , JOHN DOE #1, JOHN DOE #2, 15 _______________ 16 Plaintiff-Appellant, Defendants-Appellees. Before: 17 18 LEVAL , KATZMANN and B.D. PARKER , Circuit Judges. _______________ 19 Appeal from an Order of the District Court for the Southern District of New York 20 (Richard J. Sullivan, J.), entered October 27, 2008, revoking the Plaintiff-Appellant s in forma 21 pauperis status and dismissing his complaint pursuant to 28 U.S.C. § 1915(g). We hold that § 22 1915(g) applies to a plaintiff who has been released from prison subsequent to the filing of his 23 complaint; that a court can dismiss a complaint pursuant to § 1915(g) even if the defendants did 24 not raise that provision in the pleadings; and that a court may rely on docket sheet entries of 25 prior dismissals in order to determine whether § 1915(g) applies. In addition, we find that the 26 Plaintiff-Appellant does not qualify for the imminent danger exception under § 1915(g). We 1 affirm the district court s dismissal of the Plaintiff-Appellant s complaint, but vacate the court s 2 order of dismissal and remand to allow the court to issue a new order of dismissal permitting the 3 Plaintiff-Appellant to apply for in forma pauperis status as a non-incarcerated plaintiff if he 4 chooses to refile his complaint. 5 6 7 8 9 10 11 12 13 14 15 16 17 _______________ JUSTINE M. MONGAN , ELIZABETH S. LOSEY , (Jon Romberg, on the brief), Center for Social Justice, Seton Hall University School of Law, Newark, NJ, for Plaintiff-Appellant. KAREN M. GRIFFIN , Assistant Corporation Counsel (Francis F. Caputo, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees. _______________ KATZMANN , Circuit Judge: 18 This case calls upon us in principal part to interpret the three strikes rule of the Prison 19 Litigation Reform Act ( PLRA ), 28 U.S.C. § 1915(g), which prohibits incarcerated prisoners 20 from filing in forma pauperis in federal court if they have previously brought three or more 21 actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or 22 failed to state a claim upon which relief could be granted. In the matter at hand, our task is to 23 determine whether, pursuant to the three strikes rule, a district court should dismiss a prisoner- 24 plaintiff s complaint if he has been released from prison subsequent to the filing of his 25 complaint. We hold that dismissal by the district court in such circumstances is appropriate. We 26 also conclude that the three strikes rule need not be raised by the defendant in the pleadings in 27 order to serve as grounds for dismissal. In addition, in determining whether prior dismissals 28 constitute strikes under § 1915(g), courts may rely on docket sheet entries if they indicate with 2 1 sufficient clarity the grounds for dismissal of the prior suits. Finally, we determine that the 2 Plaintiff-Appellant does not qualify for the imminent danger exception under § 1915(g). We 3 affirm the district court s dismissal of the Plaintiff-Appellant s complaint, but vacate the court s 4 order of dismissal and remand to allow the court to issue a new order of dismissal permitting the 5 Plaintiff-Appellant to apply for in forma pauperis status as a non-incarcerated plaintiff if he 6 chooses to refile his complaint. 7 8 9 I Plaintiff-Appellant Tony Harris filed a complaint under 42 U.S.C. § 1983 on September 7, 2007. Harris was an inmate at the City of New York Department of Corrections facility at 10 Riker s Island at the time. The complaint alleged, inter alia, that Harris was assaulted by 11 approximately ten corrections officers at Riker s Island in New York City on or around July 14, 12 2005. Compl. at 2-3. Harris filed a grievance with prison authorities on July 15, 2005, 13 additionally stating that his request for medical treatment for his injuries was denied. In an 14 amended complaint filed March 14, 2008, Harris alleged that he was attacked again, in January 15 2006 an[d] Spring 2007, that he was ass[a]ulted and taunted for filing suit by officers, and 16 that he suffered a ruptured eardrum, for which he was denied medical attention. Am. Compl. at 17 2-3. The amended complaint also alleged that he suffered a fractured jaw in the July 2005 18 attack. Id. at 3. 19 In tandem with his initial complaint, Harris sought leave to proceed in forma pauperis, 20 which was granted by the court the same day the complaint was docketed. The defendants filed 21 an answer to the amended complaint on August 5, 2008. The answer did not allege that Harris 22 was in violation of the PLRA s three strikes rule. On September 30, 2008, the defendants sent a 23 letter motion requesting that the court issue an order to show cause why Harris s in forma 3 1 pauperis status should not be revoked under the three strikes rule (or, alternatively, hold a 2 conference concerning that request). The defendants asserted that Harris had previously filed 3 five claims or appeals constituting strikes under § 1915(g) while incarcerated. 4 On October 3, 2008 the district court issued an order to show cause instructing Harris to 5 show, by October 30, 2008, why the court should not revoke his in forma pauperis status 6 pursuant to the three strikes rule of 28 U.S.C. § 1915(g). On October 16, 2008, Harris filed a 7 motion for leave to file non-prison service papers. He also filed an opposition to the order to 8 show cause, asserting that he did not have three prior strikes and that he should not be deprived 9 of in forma pauperis status under 28 U.S.C. § 1915(g) because, inter alia, he remains [in] and 10 11 has suffered imminent danger of serious injury. On October 27, 2008 the district issued an order revoking Harris s in forma pauperis 12 status and dismissing his complaint without prejudice on the grounds that Harris had 13 accumulated four strikes under the PLRA, was not entitled to in forma pauperis status, and had 14 not paid any filing fees. Harris v. City of New York, 07-cv-7894 (S.D.N.Y. Oct. 27, 2008) (order 15 of dismissal). The order stated that Harris could refile the case upon payment of the filing fee 16 and court costs. Id. Harris, however, had apparently been released from prison in mid-2008, 17 prior to the district court s order of dismissal. 18 Harris filed a timely notice of appeal to this Court, which appointed pro bono counsel to 19 represent Harris on appeal. The motions panel instructed counsel to argue (1) whether the 20 three strikes provision of the Prison Litigation Reform Act of 1995 ( PLRA ) applies to a 21 prisoner who has been released from custody; and (2) if the PLRA three strikes provision does 22 apply, whether the district court correctly determined that Appellant had four prior PLRA 23 strikes. 4 1 2 II Under the PLRA, prisoner-litigants granted in forma pauperis status must pay the full 3 amount of the filing fee to the extent they can afford to, as measured by the funds in their prison 4 accounts. 28 U.S.C. § 1915(b)(1). The fees are paid through periodic debits from the plaintiff s 5 prison account, which are forwarded to the court by the custodial agency. Id. § 1915(b)(2). 6 There is an exception to the PLRA s payment structure: Prisoner-plaintiffs who have 7 accumulated three strikes are prohibited by the PLRA from bringing further actions or appeals in 8 forma pauperis. Id. § 1915(g). The full text of the provision is as follows: 9 10 11 12 13 14 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. 15 Id. When a prisoner-plaintiff satisfies the imminent danger exception, the suit continues as if the 16 plaintiff did not have three strikes. 17 18 III Harris argues that § 1915(g) is inapplicable in the present case because he was no longer 19 a prisoner at the time the district court determined that he had previously brought at least three 20 meritless actions. This Court reviews questions of statutory interpretation de novo. Williams v. 21 Beemiller, Inc., 527 F.3d 259, 264 (2d Cir. 2008). 22 Harris s interpretation of § 1915(g) runs counter to the text of the provision. See Phong 23 Thanh Nguyen v. Chertoff, 501 F.3d 107, 112 (2d Cir. 2007) ( The law is well established that 24 statutory construction begins with text because if the language of a statute is unambiguous, no 25 further inquiry is required. ). Section 1915(g) begins: In no event shall a prisoner bring a civil 26 action or appeal if on three or more occasions he has brought a suit that qualifies as a strike. 28 5 1 U.S.C. § 1915(g) (emphasis added). The use of the word bring offers a clear indication that 2 the provision goes into effect and bars the suit under the in forma pauperis section at the 3 moment the plaintiff files his complaint or notice of appeal. See Banos v. O Guin, 144 F.3d 883, 4 885 (5th Cir. 1998) (in determining when the imminent danger exception applies, noting that 5 the language of § 1915(g), by using the present tense, clearly refers to the time when the action 6 or appeal is filed or the motion for IFP status is made ). 7 Had Congress intended that the three strikes rule would no longer apply once a prisoner 8 had been released, it would have written the statutory provision differently. See Tafari v. Hues, 9 473 F.3d 440, 442 (2d Cir. 2007) ( Statutory construction must begin with the language 10 employed by Congress and the assumption that the ordinary meaning of the language accurately 11 expresses the legislative purpose. ) (quoting Park N Fly, Inc. v. Dollar Park & Fly, Inc., 469 12 U.S. 189, 194 (1985)). Because Harris was a prisoner at the time he brought the present 13 action, the text of the statute mandates that the three strikes rule apply. 14 In support of his argument Harris cites this Court s decision in McGann v. 15 Commissioner, 96 F.3d 28 (2d Cir. 1996), which held that inmates who file suit while 16 incarcerated but who have subsequently been released from custody are no longer required to 17 pay filing fees under the payment scheme for incarcerated litigants, but are instead subject to the 18 general in forma pauperis regime for indigent litigants. Id. at 30. Harris argues that McGann 19 stands for the broad proposition that the provisions of 28 U.S.C. § 1915 do not apply to released 20 prisoners. 21 This Court in McGann, however, interpreted a different section of the PLRA than the one 22 at issue in the present case. The PLRA requires prisoner-litigants to pay the full amount of the 23 filing fee under a carefully-structured regime in which they pay a fixed percentage of their prison 6 1 account balances at regular intervals. See 28 U.S.C. § 1915(b). The difficulty the McGann 2 Court confronted is that, once a plaintiff is no longer a prisoner, there is no prison account from 3 which to calculate and debit the required payments, McGann, 96 F.3d at 29-30. Thus, the 4 PLRA s payment scheme cannot be extended beyond the moment of a prisoner s release, and § 5 1915(b) must be read to require that once a prisoner is no longer incarcerated, either he pay the 6 entire remaining amount of the filing fee or his obligation to pay fees is determined as it would 7 be for any non-prisoner. Id. at 30. The McGann Court found that the statute s detailed payment 8 system applicable only to prisoners indicated that Congress intended for the payment regime 9 to end once a prisoner was released. Requiring a just-released prisoner to pay the entire balance 10 of the fee in a single payment is a result that would be more onerous than that imposed on those 11 who remain incarcerated. It is not likely that Congress intended such a result. Id. at 30. 12 Unlike in McGann, in the present case application of the PLRA s three strikes rule to 13 released prisoners is fully consistent with the statutory scheme, and it does not impose upon 14 them any burden more onerous than the burden on those still incarcerated. Accordingly, this 15 Court s decision in McGann does not support Harris s argument that § 1915(g) no longer applies 16 once a prisoner has been released, and the district court was correct to apply § 1915(g) in this 17 case. 18 Harris argues that even if § 1915(g) can be applied once a prisoner has been released, the 19 three strikes rule is an affirmative defense that must be raised in the pleadings, and the 20 defendants waived this defense by failing to bring Harris s multiple meritless suits to the district 21 court s attention until almost two months after filing their answer to Harris s amended 22 complaint. As an initial matter, we note that Harris s Prisoner Complaint forms 23 misrepresented how many strike suits he had filed prior to bringing the instant action. Harris 7 1 should not benefit from his own misleading submissions, and as an equitable matter, he may 2 have waived this argument. But we need not determine whether waiver applies because we 3 conclude that the three strikes rule is not an affirmative defense that must be raised in the 4 pleadings. Other courts have reached the conclusion that district courts may apply the three 5 strikes rule sua sponte. See Thompson v. Drug Enforcement Admin., 492 F.3d 428, 435-36 (D.C. 6 Cir. 2007) ( [E]vidence showing the grounds for prior dismissals . . . . must be produced either 7 by the defendant challenging the prisoner s IFP status or, when readily available, by the court 8 itself. ); Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005) (stating that a prisoner can be 9 placed on notice of the potential disqualification under § 1915(g) by either the district court or 10 the defendant ). This conclusion makes sense. First, in addition to initial actions in the district 11 court, the three strikes rule applies to appeals, where there are no pleadings, and so it is unlikely 12 that Congress intended to require that it be raised as an affirmative defense. 13 Moreover, although one of the PLRA s goals was protection of the corrections system, 14 see Ruggiero v. County of Orange, 467 F.3d 170, 174 (2d Cir. 2006), an equally compelling 15 purpose of the statute was to give district courts greater power to protect their dockets from 16 meritless lawsuits, see Ortiz v. McBride, 380 F.3d 649, 658 (2d Cir. 2004) ( [T]he purpose of the 17 PLRA . . . was plainly to curtail what Congress perceived to be inmate abuses of the judicial 18 process. ); 141 Cong. Rec. S14408-01, *S14418 (daily ed. Sept. 27, 1995) (statement of Sen. 19 Hatch) ( [The PLRA] will help bring relief to a civil justice system overburdened by frivolous 20 prisoner lawsuits. ). To hold that the three strikes rule is waived unless raised by the defendant 21 in the pleadings would strip the district courts of their ability to dismiss meritless suits. Indeed, 22 in his reply brief to this Court Harris concedes that a district court retains the discretion to 23 resolve the question of whether the plaintiff already has three strikes against him, even if not 8 1 raised by the parties. Reply Br. at 15 (emphasis added). We agree, and find that a district court 2 can invoke § 1915(g) to dismiss a prisoner lawsuit even if the three strikes rule has not be raised 3 by the defendant in the pleadings. 4 Harris also contends that the district court erred in relying exclusively on the docket 5 sheets of his past suits to determine whether he had previously brought three or more meritless 6 suits. Harris contends that docket entries may not accurately describe the grounds for dismissal, 7 and he urges this Court to adopt a rule mandating that courts review actual orders of dismissal in 8 determining a prisoner-litigants s prior strikes. Nothing in the PLRA or the caselaw of this or 9 other courts, however, suggests that courts have an affirmative obligation to examine actual 10 orders of dismissal. See Thompson 492 F.3d at 434-35 (accepting docket reports indicating that 11 prior dismissals satisfied at least one of the § 1915(g) criteria for a strike); Andrews, 398 F.3d at 12 1120 ( [D]istrict court docket records may be sufficient to show that a prior dismissal . . . counts 13 as a strike ); cf. Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir. 1996) ( A docket is a court s official 14 record of what occurs in a case. ). The district court may rely on the relevant docket sheets if 15 they indicate with sufficient clarity that the prior suits were dismissed on the grounds that they 16 were frivolous, malicious, or failed to state a claim upon which relief may be granted. See 17 Andrews, 398 F.3d at 1120. 18 In the present case, the docket sheets for three of the strikes found by the district court 19 clearly indicate that the actions were dismissed for one of the § 1915(g) grounds. See Johnson v. 20 Dinkins, 92-cv-5617 (S.D.N.Y. July 28, 1992) (order of dismissal); Doe v. Attorney General NY, 21 01-cv-04526 (S.D.N.Y. May 29, 2001) (order of dismissal); Harris v. City of New York , 07-cv- 22 11555 (S.D.N.Y. Apr. 22, 2008) (order of dismissal). In addition, Harris was given a full 23 opportunity to demonstrate that the dismissals at issue were for grounds not enumerated in the 9 1 PLRA. Accordingly, the district court was fully justified in relying on the docket sheets in order 2 to determine whether Harris had any prior strikes. 3 Finally, Harris argues in that even if the three strikes rule applies to him, its 4 exception when the prisoner is under imminent danger of serious physical injury does as 5 well. See 28 U.S.C. § 1915(g). The exception only applies to danger existing at the time the 6 complaint is filed. Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002). Construing 7 Harris s initial and amended complaints to raise the strongest arguments that they suggest, 8 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal 9 quotation marks and emphasis omitted), we do not conclude that the facts alleged support a 10 finding that he was in imminent danger at the time he filed his initial complaint. Accordingly, 11 Harris does not qualify for the statutory exception. 12 IV 13 We affirm the district court s dismissal of Harris s suit on the ground that he was in 14 violation of the PLRA s three strikes rule. The district court did err, however, in stating in its 15 order of dismissal that Harris could refile the case upon payment of the filing fee and court costs. 16 Harris was apparently no longer incarcerated at the time the district court issued its order. If that 17 is still the case, if he chooses to refile his suit and can establish his eligibility for in forma 18 pauperis status, he, like any non-incarcerated litigant, should be excused from paying the filing 19 fee. Accordingly, we affirm the district court s dismissal of Harris s complaint, but we vacate 20 the court s order of dismissal and remand to allow the court to issue a new order of dismissal 21 permitting Harris to apply for in forma pauperis status as a non-incarcerated plaintiff if he so 22 qualifies. 10

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