REVISED UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
____________
No. 95-31249 ____________
VALENTINO B ADEPEGBA,
Plaintiff-Appellant,
versus
BILLY G HAMMONS, Individually and in his official capacity as special agent assigned to F C I Oakdale; JOHN L NIXON, Individually and in his official capacity as acting supervisory special agent at F C I Oakdale,
Defendants-Appellees.
Appeal from the United States District Court For the Western District of Louisiana
December 31, 1996
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Valentino Adepegba, a federal prisoner, appeals the district
court’s dismissal of his in forma pauperis civil rights action as
frivolous. His appeal raises several issues of first impression in
this circuit regarding new in forma pauperis provisions of the
Prison Litigation Reform Act.
I
Adepegba is a Nigerian citizen who entered the United States legally in 1982. While in the United States, Adepegba has been
convicted of crimes including cocaine possession, illegal
possession of firearms, and mail fraud. Proceeding pro se and in
forma pauperis (“i.f.p.”), Adepegba filed this civil rights action
pursuant to Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619
(1971), against Billy Hammons and John Nixon, agents of the
Immigration and Naturalization Service (“INS”). Adepegba alleges
that Hammons and Nixon did not follow INS procedure in his
interview and that they falsified an INS report that was admitted
into evidence at his deportation hearing.
The district court construed Adepegba’s complaint to state two
causes of action and dismissed each, one as frivolous because it
was barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129
L. Ed. 2d 383 (1994), and the other for failure to exhaust
administrative remedies under the Federal Tort Claims Act, 28
U.S.C. §§ 1346, 2671 et seq. Adepegba filed a timely notice of
appeal December 14, 1995.
This appeal is not Adepegba’s first; indeed he is a frequent
filer in this court. We have considered eleven prior Adepegba
appeals, and we have dismissed all of them))three of them as
frivolous.1 On April 26, 1996, after Adepegba filed notice of
1 See Adepegba v. Sheriff, No. 94-40134 (5th Cir. Jul. 21, 1994) (affirmance of section 2241 dismissal without prejudice for failure to exhaust administrative remedies); Adepegba v. United States Postal Service, No. 94-10259 (5th Cir. Jul. 28, 1994) (reversal and remand of Bivens action dismissed by district court as frivolous); Adepegba v. Morgan, No. 94-10681 (5th Cir. Sept. 20, 1994) (affirming section 1983 dismissal under unamended section
-2- appeal in the instant case, the President signed into law the
Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
(1996) (“PLRA” or “Act”), which modifies the requirements for
proceeding in forma pauperis (“i.f.p.”) in federal courts. Among
other things, the PLRA revokes prisoners’ privileges to proceed
i.f.p. if they have, on three prior occasions during detention, had
an action or appeal dismissed as frivolous, malicious, or for
failing to state a claim. 28 U.S.C. § 1915(g), as amended by PLRA.
Section 1915(g) contains an exception that allows prisoners whose
privileges have been revoked to proceed i.f.p. in cases involving
imminent danger of serious physical injury. Id.
II
Before we address the merits of Adepegba’s dismissal in the
district court, we must first decide whether the new provisions of
the PLRA apply. The new statute provides:
In no event shall a prisoner bring a civil action or
1915(d)); Adepegba v. Louisiana, No. 94-40749 (5th Cir. Nov. 17, 1994) (affirming section 1983 dismissal as frivolous on statute of limitations grounds and dismissing appeal as frivolous); Adepegba v. INS, No. 94-40615 (5th Cir. Apr. 20, 1995) (petition for review of BIA decision dismissed as frivolous); Adepegba v. Caplinger, No. 95-30614 (5th Cir. Jul. 11, 1995) (appeal of section 2241 action dismissed for lack of jurisdiction); United States v. Adepegba, No. 95-10596 (5th Cir. Mar. 11, 1996) (dismissing habeas corpus appeal); United States v. Adepegba, No. 95-31297 (5th Cir. Mar. 20, 1996) (denial of motion for sanctions, temporary restraining order, and preliminary injunction); Adepegba v. INS, No. 95-60390 (5th Cir. Mar. 21, 1996) (dismissing as frivolous claims that district court erred in failing to consider objections to magistrate judge’s report and failing to provide hearing); In re Adepegba, No. 95-00065 (5th Cir. Jun. 6, 1996 (denying petition for mandamus); Adepegba v. INS, No. 95-30626 (5th Cir. July 3, 1996) (consolidated dismissal of Adepegba v. INS, No. 95-30470 (appealing dismissal of section 2241 petition challenging final order of deportation) and Adepegba v. Hall, No. 95-30808 (same)).
-3- 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.
28 U.S.C. § 1915(g), as amended. This case presents two threshold
issues: First, does section 1915(g) govern Adepegba’s appeal,
which was filed before the Act became law? Second, do Adepegba’s
prior dismissals bring him within the ambit of the “three strikes”
provision of section 1915(g)? Both are issues of first impression
in this circuit.
A
First we decide whether section 1915(g) applies to cases
pending on the effective date of the statute. Adepegba filed a
notice of appeal in this case on December 14, 1995, months before
the PLRA became law. The question of whether to apply a new
statute to a case pending on its effective date is governed by the
Supreme Court’s recent opinion in Landgraf v. USI Film Products,
511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).
Landgraf established a two-part test to determine whether the
statute should apply. First, courts should determine “whether
Congress has expressly prescribed the statute’s proper reach.”
Landgraf, 511 U.S. at ___, 114 S. Ct. at 1505 (emphasis added). If
it has, the court must respect the stated will of Congress. Id.
Second, where the statute does not contain an express effective
date, courts must determine whether the statute would “impair
rights a party possessed when he acted, increase a party’s
-4- liability for past conduct, or impose new duties with respect to
transactions already completed.” Id. If it does, courts should
not apply the statute to the pending case. Id.
Employing this analysis, we find that Congress has specified
no effective date for the PLRA. See Green v. Nottingham, 90 F.3d
415, 419 (10th Cir. 1996) (holding that PLRA lacks the kind of
“unambiguous directive” required by Landgraf). No section
evidences Congressional intent, so we apply the default rule that
the PLRA became effective on the day it was signed into law.
Norman J. Singer, 2 Sutherland Statutory Construction, § 33.06 at
12 (5th ed. 1993). Congress was also silent as to whether courts
should apply the new statute in cases pending on the PLRA’s
effective date. However, as the Court noted in Landgraf, the
absence of specific legislative authorization does not
automatically render improper a court’s decision to apply a new
statute to events that predated its passage. 511 U.S. at ___, 114
S. Ct. at 1501. We therefore turn to step two of the Landgraf
analysis.
Under step two, we should not apply the statute if we find
that it would do any of three things: “impair rights a party
possessed when he acted, increase a party’s liability for past
conduct, or impose new duties with respect to transactions already
completed.” Id. at ___, 114 S. Ct. at 1505. We do not believe
that applying the provisions of section 1915(g) in this case runs
afoul of the second step of Landgraf. We have long recognized that
there is no absolute “right” to pursue a civil appeal i.f.p.;
-5- rather it is a privilege extended to those unable to pay filing
fees in a timely manner. Startti v. United States, 415 F.2d 1115,
1116 (5th Cir. 1969). Furthermore, every limitation of a privilege
does not count as a liability or a duty. Section 1915(g) governs
procedure, and it does little more than apply the same rules to
prisoners that apply to everyone else who brings an action or
appeal.
We note that “[c]hanges in procedural rules may often be
applied in suits arising before their enactment without raising
concerns about retroactivity.” Landgraf, 511 U.S. at ___, 114 S.
Ct. at 1502. The Supreme Court has long held that, because rules
of procedure govern secondary conduct rather than primary conduct,
applying them to cases pending on their effective date does not
violate presumptions against retroactivity. Id. at ___, 114 S. Ct.
at 1502, citing McBurney v. Carson, 99 U.S. 567, 569, 25 L Ed. 378
(1879). Therefore the Court has upheld procedural changes even
where they work to the disadvantage of defendants in pending cases.
Landgraf, 511 U.S. at ___, 114 S. Ct. at 1502 n.28, citing Dobbert
v. Florida, 432 U.S. 282, 293-94, 97 S. Ct. 2290, 2298-99, 53 L.
Ed. 2d 344 (1977); Collins v. Youngblood, 497 U.S. 37, 110 S. Ct.
2715, 111 L. Ed. 2d 30 (1990); Beazell v. Ohio, 269 U.S. 167, 46 S.
Ct. 68, 70 L. Ed. 216 (1925).
Section 1915 is a procedural statute governing the process by
which indigent individuals, including prisoners, bring civil
actions or appeals in the federal courts. Before amendment,
section 1915 allowed qualifying prisoners to bring an action or
-6- appeal without prepaying court fees, which are normally in excess
of $100. See 28 U.S.C. § 1913 note (Judicial Conference Schedule
of Fees). The amended provisions of section 1915(b) allow
qualifying individuals to pay the filing fee in installments over
time. 28 U.S.C. § 1915(b), as amended. Although section 1915(g)
attaches consequences to past actions, we find that these
consequences are matters of procedure. Section 1915(g) does not
affect a prisoner’s substantive rights, and it does not block his
or her access to the courts. A prisoner may still pursue any claim
after three qualifying dismissals, but he or she must do so without
the aid of the i.f.p. procedures. We therefore find that
application of this procedural rule to pending appeals does not
raise the retroactivity concerns discussed in Landgraf. Accord
Green v. Nottingham, 90 F.3d, 415, 420 (10th Cir. 1996) (holding
that section 1915(g) does not run afoul of Landgraf because it is
a “procedural rule”);2 Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025
(7th Cir. 1996) (“All § 1915 has ever done is excuse prepayment of
docket fees; a litigant remains liable for them, and for other
costs, although poverty may make collection impossible.”).
The second reason that application of section 1915(g) does not
raise retroactivity concerns is that it does not impose new or
2 Green’s case is on slightly different procedural footing, however, since he filed his appeal on May 7, 1996, after the President signed the PLRA. It is unclear to us that Landgraf is the proper mode of analysis for such cases. See Landgraf, 511 U.S. at ___, 114 S. Ct. at 1488 (noting that the Court granted certiorari to decide whether provisions of the Civil Rights Act of 1991 applied to a Title VII case pending on appeal when the statute was enacted). We limit today’s holding to appeals pending when the PLRA was signed.
-7- additional liabilities, but instead requires collection of a fee
that was always due. In providing procedures to litigate in forma
pauperis, Congress created an exception to the general rules under
28 U.S.C. §§ 1911-14, which impose filing fees on federal court
litigants. Section 1915(g) puts prisoners on the same footing as
every other petitioner in federal court. We hold that this is not
a duty or a liability under Landgraf.
The revocation of this privilege is not new, either. Before
the PLRA, courts routinely revoked a prisoner’s ability to proceed
i.f.p. after numerous dismissals. See, e.g., Green v. Carlson,
649 F.2d 285, 287 (5th Cir.) (per curiam) (court enjoined
petitioner, who had filed over 500 state and federal suits, from
proceeding i.f.p. unless complaints specifically alleged
constitutional deprivation), cert. denied, 454 U.S. 1087, 102 S.
Ct. 646, 70 L. Ed. 2d 623 (1981). By adding section 1915(g),
Congress determined that three qualifying dismissals constituted
per se abuse of the i.f.p. procedures. The “three strikes”
provision merely codifies an existing practice in the courts
designed to prevent prisoners from abusing the i.f.p. privilege.
Prisoners who are not allowed to proceed i.f.p. may pursue
their substantive claims just as anyone else by paying the filing
fee. This requirement is neither novel nor penal. It does not
increase a prisoner’s liability, but merely puts prisoners who
abuse a privilege on the same footing as everyone else. We find
that section 1915(g) does not impair prisoners’ rights, nor
increase their liability, nor impose a new duty under Landgraf. We
-8- therefore apply the statute to this appeal. See Green, 90 F.3d at
420 (holding that “three strikes” provision does not raise
retroactivity concerns).
B
Having determined that section 1915(g) governs this appeal, we
must now consider whether Adepegba has three or more qualifying
dismissals under the statute. Congress provided no instructions to
aid us in determining exactly what counts as a dismissal under
amended section 1915(g). To complicate this determination,
Adepegba has afforded us a number of different and creative
dismissal combinations.
It is straightforward that affirmance of a district court
dismissal as frivolous counts as a single “strike.” In September
1994, we affirmed a district court’s dismissal of an Adepegba
section 1983 claim against the City of Balch Springs. Adepegba v.
Morgan, No. 94-10681 (5th Cir. Sept. 20, 1994). Adepegba failed to
allege any policy or custom of the city that resulted in the
violation of his constitutional rights; the district court
dismissed as frivolous and we affirmed. We interpret the fact that
actions or appeals qualify, and the fact that any “court of the
United States” may provide the forum, to mean that dismissals as
frivolous in the district courts or the court of appeals count for
the purposes of the statute. In Adepegba v. Morgan, we only
addressed the merits below, not the merits of the appeal. Such a
disposition merely states that the district court did not err in
determining that the underlying action was frivolous. Therefore we
-9- find that the district court’s dismissal of Adepegba’s section 1983
claim counts, but our affirmance, standing alone, does not.
Adepegba’s claim against Balch Springs is strike one.
However, we find it plain that reversal of a dismissal as
frivolous nullifies the “strike.” In Adepegba v. United States
Postal Service, No. 94-10259 (5th Cir. Jul. 28, 1994), we reversed
and remanded a district court frivolousness dismissal. Although
Adepegba filed a claim that was dismissed by the district court,
our subsequent reversal lifts the strike from his record. We note
that it is possible to read the statute otherwise; section 1915(g)
only requires that on three or more prior occasions a prisoner have
had an action dismissed. The statute does not proscribe any cure
for erroneous dismissals. Such an extreme reading would count the
entry of three dismissals, even though each had been reversed, an
absurd result we cannot believe Congress intended. We hold that,
by using the phrase “dismissed on the grounds that it is
frivolous,” Congress did not mean to include dismissals later
reversed. Because such dismissals are reinstated on appeal, such
claims are not properly considered “dismissed” for the purposes of
the statute.
By similar reasoning, we decline to count against Adepegba the
district court’s dismissal as frivolous in the instant case))at
least for now. A dismissal should not count against a petitioner
until he has exhausted or waived his appeals. Any other reading of
the statute poses a risk of inadvertently punishing nonculpable
conduct. For example, an indigent prisoner’s fourth claim could
-10- expire while his first three dismissals were being reversed on
appeal. A hyper-literal reading of the statute might also bar a
prisoner’s appeal of an erroneous third strike, since the appeal
would follow three prior dismissals. It is uncontroversial from
the plain language of the statute that Congress intended section
1915(g) only to penalize litigation that is truly frivolous, not to
freeze out meritorious claims or ossify district court errors. We
accordingly read dismissals under the statute to include only those
for which appeal has been exhausted or waived. Because Adepegba
did not appeal the Fifth Circuit cases cited in this opinion (two
affirmances and one dismissal as frivolous) within ninety days,
those strikes qualify under the statute. See S. Ct. Rule 13
(establishing deadlines for appeal).
By contrast, both the frivolous appeal and a lower court’s
dismissal as frivolous count. In November 1995, we affirmed a
district court order dismissing as frivolous Adepegba’s Fourth
Amendment claims against the State of Louisiana arising out of a
1985 traffic stop. Adepegba v. Louisiana, No. 94-40749 (5th Cir.
1994). In his appeal, Adepegba did not argue the merits of his
dismissed claims, which we deemed abandoned; thus we affirmed the
district court’s dismissal. Strike two.
In the same appeal, Adepegba raised different issues, arguing
that the district court improperly dismissed his complaint without
service of process and without issuing interrogatories. Neither is
required, and we separately dismissed his appeal as frivolous under
Fifth Cir. R. 42.2. Congress suggests in the statute that any
-11- appeal dismissed as frivolous counts against the petitioner; it
makes no exception for frivolous appeals of district court
dismissals. Therefore we find that Congress would have us count
both the dismissal in the district court and the separate dismissal
of the appeal as frivolous. This holds true whether the case is
dismissed under Fifth Cir. R. 42.2, unamended section
1915(d)(allowing courts to dismiss cases or appeals as frivolous),
the new section 1915(e)(2) (as amended by PLRA) (allowing courts to
dismiss cases at any time for a broad array of reasons), new
section 1915A(b) (as amended by PLRA) (same), 42 U.S.C.
§ 1997(e)(7)(c) (as amended by PLRA) (allowing courts to dismiss
section 1983 prison conditions cases) or any other grounds
independent of the district court’s disposition. Adepegba’s appeal
in Adepegba v. Louisiana is strike three.3
We therefore find that Adepegba has three or more strikes
under the statute. Adepegba is out, and not just in this appeal.
Under the terms of the statute, he may pursue another action in
federal court i.f.p. only if he is in “imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g), as amended. Therefore,
except for cases involving an imminent danger of serious physical
injury, we bar him from proceeding further under the statute and
dismiss all of Adepegba’s i.f.p. appeals pending in this court. He
3 In addition, we dismissed as frivolous two other Adepegba appeals before the effective date of the PLRA, which would also count under the statute. See Adepegba v. INS, No. 94-40615 (5th Cir. April 20, 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 228, 133 L. Ed. 2d 157 (1995); United States v. Adepegba, No. 95-10596 (5th Cir. Mar. 11, 1996).
-12- may resume any claims dismissed under section 1915(g), if he
decides to pursue them, under the fee provisions of 28 U.S.C.
§§ 1911-14 applicable to everyone else.
III
Therefore we DISMISS Adepegba’s appeal in this case, as well
as any other appeal not involving physical injury, pending in this
circuit on the date of this opinion.
-13-