Abdul-Akbar v. McKelvie

239 F.3d 307, 2001 WL 76277
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 29, 2001
Docket98-7307
StatusUnknown
Cited by119 cases

This text of 239 F.3d 307 (Abdul-Akbar v. McKelvie) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abdul-Akbar v. McKelvie, 239 F.3d 307, 2001 WL 76277 (3d Cir. 2001).

Opinions

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The primary issue for decision is whether we should overrule the holding of Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997), interpreting 28 U.S.C. § 1915(g). Under this statute, popularly known as the “three strikes” rule, a prisoner may not file a new action or appeal in forma pauperis (“I.F.P.”) if, on three or more prior occasions while incarcerated or detained, the prisoner has brought a federal action or appeal that was dismissed on the grounds that it was frivolous, malicious or fails to state a claim, unless the prisoner “is under imminent danger of serious physical inju[311]*311ry.” We held in Gibbs that “imminent danger” is measured at the time of the alleged incident, not at the time the complaint is filed. 116 F.3d at 86. Three of our sister courts of appeals have since rejected our teachings in Gibbs, holding instead that the court should assess “imminent danger” as of the time the prisoner’s complaint is filed and that a prisoner’s allegation that he faced danger in the past is insufficient to allow him to proceed I.F.P. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.1998); Banos v. O’Guin, 144 F.3d 883, 884-885 (5th Cir.1998). We now abandon the interpretation set forth in Gibbs and adopt that of our sister courts of appeals. We hold also that § 1915(g), as so interpreted, is constitutional.

I.

Appellant Debro Siddiq Abdul-Akbar was most recently incarcerated by the Delaware Department of Corrections from June 10, 1994 through May 15, 1999 on state charges including robbery, conspiracy, assault and shoplifting. During the time material to Appellant’s underlying proposed Complaint based on 42 U.S.C. § 1983, he was incarcerated at the Sussex Correctional Institute in Georgetown, Delaware. On May 17,1999, Appellant reported to a community confinement center, and on May 27, 1999, he was released from the custody of the Department of Corrections.

Appellant has filed at least 180 civil rights or habeas corpus claims. Abdul-Akbar v. Dept. of Corrections, 910 F.Supp. 986, 998 (D.Del.1995). In Abdul-Akbar v. Watson, 901 F.2d 329 (3d Cir.1990), this court reviewed a district court order barring Appellant from filing any further § 1983 claims I.F.P. and held that a district court may enter an injunction precluding a prisoner from filing any § 1983 claims without leave of court and without making certain good faith certifications. 901 F.2d at 333. We stated that Abdul-Akbar’s “history of repetitious and frivolous filings indicates a clear intent to abuse the courts and the I.F.P. process.” Id. at 334. An injunction subsequently was entered by the district court. Abdul-Akbar v. Dept. of Corrections, 910 F.Supp. at 1009.

On February 10, 1998, Appellant filed a motion for leave to file a § 1983 Complaint, a proposed Complaint and a motion to proceed I.F.P. The proposed Complaint alleged that on or about January 9, 1998, prison officials arbitrarily sprayed Appellant with pepper gas and refused to provide him with medical treatment even though they knew that he suffers from asthma. Appellant also claimed that certain prison officials violated his civil rights by belonging to a racist organization, that one defendant failed to investigate properly the pepper spray incident, and that the district court judge violated his Sixth Amendment right of access to the courts by preventing his complaints from being heard.

The district court denied the motion to proceed I.F.P., reasoning that (1) Appellant had brought actions that the court had dismissed as frivolous on more than three prior occasions, and (2) he did not claim to be in imminent danger of serious physical injury.

The district court had jurisdiction over this case under 28 U.S.C. § 1331. We have jurisdiction because an order denying leave to proceed I.F.P. is a final, collateral order appealable under 28 U.S.C. § 1291. The appeal was timely filed. This court reviews de novo issues of statutory interpretation, Pennsylvania Mines Corp. v. Holland, 197 F.3d 114, 119 n. 2 (3d Cir.1999), and the constitutionality of a statute, DeSousa v. Reno, 190 F.3d 175, 180 (3d Cir.1999).

II.

The discretionary power to permit indigent plaintiffs to proceed without first paying a filing fee was initially codified in the federal statutes in 1892. See Act of July 20, 1892, ch. 209 1-5, 27 Stat. 252. Congress enacted the I.F.P. statute, currently codi[312]*312fied at 28 U.S.C. § 1915, “to ensure that administrative court costs and filing fees, both of which must be paid by everyone else who files a lawsuit, would not prevent indigent persons from pursuing meaningful litigation.” Deutsch v. United States, 67 F.3d 1080, 1084 (3d Cir.1995) (citing Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992)). Congress was also aware of the potential for abuse, and it included a subsection allowing for dismissal of frivolous or malicious actions. Denton, 504 U.S. at 31, 112 S.Ct. 1728.

Congress subsequently enacted the Prison Litigation Reform Act (“PLRA” or “Act”), Pub.L. No. 104-134, 110 Stat. 1321 (1996), largely in response to concerns about the heavy volume of frivolous prisoner litigation in the federal courts. See 141 Cong. Rec. S14408-01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole) (explaining that the number of prisoner suits filed “has grown astronomically— from 6,600 in 1975 to more than 39,000 in 1994”). In enacting the PLRA, Congress concluded that the large number of merit-less prisoner claims was caused by the fact that prisoners easily obtained I.F.P. status and hence were not subject to the same economic disincentives to filing meritless cases that face other civil litigants. See 141 Cong. Rec. S7498-01, S7526 (daily ed, May 25, 1995) (statement of Sen. Kyi) (“Filing frivolous civil rights lawsuits has become a recreational activity for long-term residents of prisons.”); 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen. Dole) (“[Pjrison-ers will now ‘litigate at the drop of a hat,’ simply because they have little to lose and everything to gain.”). To curb this trend, the PLRA instituted a number of reforms in the handling of prisoner litigation.

Among other things, the PLRA amended the I.F.P. statute as it applies to prisoners. Under the statute as amended, a prisoner who is allowed to proceed I.F.P. is not excused from paying filing fees, but is only excused from pre-paying them in full if they meet certain criteria. The PLRA now requires prisoners who qualify for I.F.P. status to pay by way of an initial partial fee, followed by installment payments until the entire fee is paid. 28 U.S.C. § 1915(b)(1).

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Bluebook (online)
239 F.3d 307, 2001 WL 76277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abdul-akbar-v-mckelvie-ca3-2001.