Covino v. Reopel

89 F.3d 105
CourtCourt of Appeals for the Second Circuit
DecidedJuly 16, 1996
DocketDocket Nos. 96-2295, 96-2329, 96-2146 and 95-1522
StatusPublished
Cited by30 cases

This text of 89 F.3d 105 (Covino v. Reopel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Covino v. Reopel, 89 F.3d 105 (2d Cir. 1996).

Opinion

JON 0. NEWMAN, Chief Judge.

These motions by incarcerated prisoners in four unrelated cases oblige this Court to consider to what extent, if any, the new fee requirements of the Prison Litigation Re[106]*106form Act of 1995 (PLRA) apply to appeals filed before the April 26, 1996, effective date of the new statute. We conclude that the PLRA applies to prisoners who filed a notice of appeal prior to the effective date, including those who filed a motion to proceed on appeal in forma pauperis prior to the effective date and those who have been granted i.f.p. status on appeal by virtue of the continuance of i.f.p. status granted in the district court and not revoked. Since none of the four appellants has complied with the PLRA, we will dismiss their appeals in 30 days unless within that time they comply with the PLRA procedure set forth in Leonard v. Lacy, 88 F.3d 181 (2d Cir.1996).

Facts

In No. 96-2295, Robert Henry Covino, an incarcerated Vermont prisoner, moves for leave to proceed in forma pauperis and other relief, in connection with his appeal from a judgment of the District Court for the District of Vermont (J. Garvan Murtha, Chief Judge). The judgment dismissed, on defendants’ motion for summary judgment, Covi-no’s suit, filed under 42 U.S.C. § 1983, against current and former employees and officials of a Vermont corrections facility. Covino filed his notice of appeal on April 10, 1996, and filed his motion to proceed i.f.p. on May 2,1996.

In No. 96-2329, Ernest William Vann, an incarcerated New York prisoner, moves for leave to proceed i.f.p. on his appeal from a judgment of the District Court for the Northern District of New York (Rosemary S. Pooler, Judge). The judgment dismissed Vann’s complaint, filed under 42 U.S.C. § 1983, against the attorney who represented him on his state court criminal appeal. Like Covino, Vann filed his notice of appeal before the effective date of the PLRA and his motion to proceed i.f.p. after the effective date.

In No. 96-2146, Eddie Kellams, an incarcerated New York prisoner, moves for leave to proceed i.f.p. on his appeal from a judgment of the District Court for the Southern District of New York (Thomas P. Griesa, Chief Judge). The judgment dismissed Kel-lams’s suit, filed under 42 U.S.C. § 1983, against the Commissioner of the New York Department of Corrections and a doctor at a New York corrections facility. Kellams filed both his notice of appeal and his motion to proceed i.f.p. before the effective date of the PLRA.

In No. 95-1522, Richard David, an incarcerated federal prisoner, moves for appointment of counsel on his appeal from an order of the District Court for the Eastern District of New York (Reena Raggi, Judge). The order denied David’s motion for the return of seized property. David filed his notice of appeal before the effective date of the PLRA. He was granted leave to proceed i.f.p. by the District Court, and, since the District Court did not revoke his i.f.p. status, that status continues in this Court. See Fed. R.App. P. 24(a).

Discussion

We have recently considered and resolved several issues arising under the PLRA, which Congress enacted as Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321 (1996). See Leonard, 88 F.3d at 184-87. Familiarity with that opinion is assumed. This opinion considers issues of ret-roactivity, arising in slightly differing circumstances. All four appellants filed their notices of appeal before the April 26, 1996, effective date of the PLRA. Covino and Vann filed their motions to proceed i.f.p. in this Court after the effective date, Kellams filed his i.f.p. motion before the effective date, and David acquired i.f.p. status in this Court before the effective date since that status was granted in the District Court and not revoked.

The PLRA contains no effective date provision, and none of its provisions gives any explicit indication as to whether the Act would have any application to pending appeals. We must therefore apply the standards recently enunciated by the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), for determining whether a statute has the sort of retroactive effect that may not be applied to pending litigation in the absence of clear Congressional intent. Though Justice Stevens’s opinion for the Court, id. at-, [107]*107114 S.Ct. at 1488, and Justice Sealia’s opinion concurring in the judgment, id. at-, 114 S.Ct. at 1522, express somewhat different approaches to deciding this question, some common themes emerge.

Statutes effecting changes in substantive law will normally be considered not to have retroactive effect, whereas many changes of a procedural nature may be applied to pending litigation. See Vernon v. Cassadaga Valley Central School District, 49 F.3d 886 (2d Cir.1995) (statute of limitations period fully available to litigant applied to pending case); id. at 891 (Cabranes, J., concurring) (cautioning against retroactive application of all procedural changes). Justice Stevens suggested that “the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at-, 114 S.Ct. at 1499. He noted that a presumption against retroac-tivity normally applies to new provisions affecting contractual or property rights. Id. at -, 114 S.Ct. at 1500. In discussing whether procedural changes may permissibly have retroactive application, he offered two examples, each pointing in opposite directions. A new attorney’s fee provision may be applied to pending litigation, id. at-, 114 S.Ct. at 1503, at least in circumstances like those presented in Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), but “[a] new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime.... ” Landgraf, 511 U.S. at-n. 29, 114 S.Ct. at 1502 n. 29. In general, he described the retroactivity that was presumptively prohibited in the absence of clear Congressional intent as arising where the new provision “would 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. He emphasized that parties are normally entitled to conform their conduct to the law’s requirements and “settled expectations should not be lightly disrupted.” Id. at-, 114 S.Ct. at 1497 (footnote omitted).

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Bluebook (online)
89 F.3d 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/covino-v-reopel-ca2-1996.