Dubuc v. Johnson

314 F.3d 1205, 2003 WL 23113

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 2, 2003
• Docket: No. 01-5122
• Status: Published

Opinions

ORDER

We VACATE the district court’s grant of Plaintiffs motion to proceed in forma pauperis and direct Plaintiff to pay the full filing fee within thirty days. Plaintiffs failure to pay the filing fee as directed will result in the dismissal of his appeal for failure to prosecute. See Young v. Miller, 144 F.3d 1298 (10th Cir.1998). The opinions of the panel in support of and in opposition to this Order are attached.

OPINION

McKAY, Circuit Judge.

Plaintiff Dubuc appeals for the second time claims brought pursuant to 42 U.S.C. § 1983. On Plaintiffs first appeal, we affirmed the district court’s dismissal and grant of summary judgment on several of his original claims. However, we remanded for further proceedings Plaintiffs claims based on his allegation that detention officers had used excessive force while moving him to a new cell for disciplinary reasons. See Dubuc v. Johnson, No. 99-5107, 1999 WL 1101851, 1999 U.S.App. LEXIS 31594 (10th Cir.1999).

Upon remand, the district court granted Defendants’ Fed.R.Civ.P. 50(a) motion for judgment as a matter of law as to the supervisory defendants. The jury returned a verdict in favor of the remaining Defendants. The district court granted Plaintiffs motion to proceed in forma pau-peris on appeal. Accordingly, Plaintiff filed his appeal without prepayment of the appropriate fees. Plaintiff challenges the district court’s denial of a transcript at government expense, the district court’s denial of Plaintiffs motion to amend his complaint, various juror issues, and alleged defects occurring during trial proceedings.

Plaintiff is a prisoner bringing a civil appeal after having at least three prior actions or appeals dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief can be granted. See D.C. No. 97-CV-650 (N.D.Okla. Apr. 13, 1998); D.C. No. 93-CV-192 (E.D.Okla. Jan. 30, 1995); D.C. No. 92-CV-193 (N.D.Okla. Apr. 22, 1993). Title 28 U.S.C. § 1915(g) applies to prisoners who have filed at least three prior frivolous actions or appeals. Section 1915(g) states:

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.

Id. An action or appeal that has been dismissed as frivolous, malicious, or for failure to state a claim is commonly referred to as a “strike.”

There is some confusion in this circuit concerning the effect that an appeal filed pursuant to § 1915(g) has on our ability to review the merits of a three-strike-prisoner-plaintiffs claims who has not paid the requisite appellate fees. It is possible to read into our cases three separate approaches — § 1915(g) is a jurisdictional rule preventing any review of the merits, § 1915(g) is not jurisdictional in nature but contains a condition precedent (prepayment of appellate fees) which prevents review of the merits until appellate fees have been paid, or § 1915(g) is not a jurisdictional rule and the court in its discretion may review the merits of a prisoner’s claims.

Whether viewed from the so-called plain language perspective or more broadly to determine Congress’ intent, § 1915(g)’s mandate is that “in no event” shall a post-three-strikes civil action be brought. To the extent that the language of our cases or our practice may have departed from this absolute bar, they are contrary to the statute.

We first addressed the proper scope of § 1915(g) in Green v. Nottingham, 90 F.3d 415, 420 (10th Cir.1996). In Green we stated, “Section 1915(g) generally prevents a prisoner from proceeding in forma pau-peris in civil actions if three or more of his prior suits have been dismissed as frivolous or malicious, or for failure to state a claim.” Id. at 418. While the words “generally prevents” may subsequently have been viewed as importing some discretion, properly read they merely alert readers that § 1915(g)’s “in no event” language is subject to a single statutory exception for circumstances where “the prisoner is under imminent danger of serious physical injury.” The court concluded that § 1915(g) was a “procedural rule governing in forma pauperis filings by prisoners[,]” and that Green was precluded from proceeding in forma pauperis on appeal because he had accumulated at least three strikes. Id. at 420.

The notion that § 1915(g) might be considered jurisdictional in nature was raised in our subsequent decisions. In Pigg v. FBI, 106 F.3d 1497 (10th Cir.1997), we held that “[sjection 1915(g) is not a jurisdictional limitation but merely requires the full prepayment of fees where the conditions of the statute are met.” Id. (citation omitted). In In re Washington, 122 F.3d 1345 (10th Cir.1997), we denied the petitioner’s request to proceed in forma pau-peris on appeal because he had accumulated at least three strikes. We held that “[petitioner may resubmit his petition by paying the required filing fee.” Id. In these two cases, § 1915(g) is viewed not as announcing a jurisdiction rule but instead as imposing a condition precedent to filing an appeal after a prisoner has accumulated three strikes. Accordingly, the technical language of jurisdiction is unnecessary to fully implement § 1915(g)’s clear intent.

The relationship of § 1915(g)’s prohibition and our ability to nevertheless proceed to the merits of a prisoner’s appeal was further complicated by our decision in Garcia v. Silbert, 141 F.3d 1415 (10th Cir.1998). In a footnote, the court reiterated ■our prior holdings that § 1915(g) was not jurisdictional and concluded “we therefore [can] elect to reach the merits of this action.” Id. at 1417, n. 1. Garcia’s claims were then addressed on the merits. Many of our unpublished decisions have relied upon Garcia to justify reaching the merits of a prisoner’s appeal when the prisoner has failed to prepay the appellate fees and has accumulated at least three prior strikes.

While Garcia apparently held that the court could within its discretion determine a prisoner’s appeal on the merits despite § 1915(g)’s provisions, a separate panel of this court indirectly rejected Garcia’s holding just two weeks later. In Young v. Miller, 144 F.3d 1298 (10th Cir.1998), the court refused to reach the merits of a prisoner’s appeal ■ holding that since the prisoner had three prior strikes and was not “in imminent danger of serious physical injury, he cannot proceed under the in forma pauperis provisions.” Id. at 1299. The court concluded that “the district court erred in granting Young’s motion to proceed in forma pauperis, and th[e] appeal was not properly filed.” Id. It then vacated the district court’s order and directed the prisoner to pay the full filing fee within thirty days or face dismissal of his appeal.

Section 1915(g) on its face allows but one statutory exception to the otherwise comprehensive requirement that prisoners with at least three prior strikes prepay appellate fees. That exception applies only in situations where “the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Apart from this single statutory exception, § 1915(g)’s “in no event” language must be applied.

Section 1915(g) represents Congress’ attempt to balance the needs of overloaded judges to hear cases of individuals who have not abused the judicial process in the past with prisoners who have abused the judicial process on at least three prior occasions through frivolous filings. There is no question that § 1915(g) is constitutional. See White v. Colorado, 157 F.3d 1226, 1232-35 (10th Cir.1998) (holding that if status is not a fundamental right and that § 1915(g) is rationally related to the legitimate end of deterring frivolous lawsuits). As we have stated previously, “The right of access to the courts is neither absolute nor unconditional.” Schlicher v. Thomas, 111 F.3d 777, 781 (10th Cir.1997) (quotation omitted). Section 1915(g) simply removes the government’s temporary subsidy for prisoner appeals in cases where the prisoner has filed at least three prior frivolous petitions. A prisoner may continue to file actions, even frivolous ones, but must prepay all applicable filing fees.

I recognize the potential danger of Congress’ choice. Section 1915(g) can prevent a prisoner who has filed three or more frivolous actions from litigating a meritorious constitutional claim until that prisoner can pay the appropriate filing fees. Yet, this is the consequence of Congress’ choice. A natural hazard of balancing the potentially divergent needs of two or more distinct groups is the possibility that one of the groups is disadvantaged. Yet, the court must proceed in the manner directed by Congress. See, e.g., Hukkanen-Campbell v. Commissioner, 274 F.3d 1312, 1315 (10th Cir.2001) (Congress, not courts, must correct any perceived inadequacies in statutes).

I also recognize the irony that ascertaining whether a particular prisoner litigant has accumulated at least three strikes may require the use of more judicial resources than addressing the prisoner’s claims on the merits. Thus, a statute intended to conserve judicial resources might on occasion require expending additional resources. While such a result is certainly ironic, it cannot justify the judicial repeal of § 1915(g)’s “in no event” language.

Whatever conflict may exist between § 1915(g) and the Federal Rule of Appellate Procedure 3(a)(2), which allows courts to potentially consider the merits of an appeal without the prepayment of appellate fees, must be resolved in favor of § 1915(g). See Houchin v. Zavaras, 107 F.3d 1465, 1469 (10th Cir.1997) (“In reconciling this apparent conflict between the statute and the [R]ule [of Appellate Procedure], we bear in mind that when construing a statute, the text of each provision should be read so as to give effect to all the statute’s provisions.”). To the extent Rule 3(a)(2) conflicts with the statute, it is clear that the general rule cannot supersede the specific statutory command found in § 1915(g).

Only an en banc panel may overrule a prior panel’s decision. See United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir.2000) (stare decisis permits the overturn of a prior panel’s decision only through rehearing en banc, “a superseding contrary Supreme Court decision, or authorization of all currently active judges on the court”). Id. After careful review, even though I disagree with Garcia’s construction of the statute, I cannot say that it is in clear conflict with prior precedent. As a result, until otherwise modified by the en banc court, its base holding that the court retains discretion to ignore the “in no event” language of the statute cannot be overruled. However, I believe it not inconsistent with Garcia and Miller to conclude that discretion should be exercised only in extraordinary circumstances. This is not an extraordinary case, and I therefore abide by the language of the statute which says “in no event.”

In sum, § 1915(g)’s provisions are not jurisdictional in nature but contain a condition precedent which prevents a review of the merits of a three-strike-prisoner-plaintiffs claims, except under extraordinary circumstances, until the prisoner has prepaid the applicable fees. Because Plaintiff has accumulated at least three strikes, failed to prepay the appropriate filing fees, and because his appeal does not involve imminent danger of serious physical injury or extraordinary circumstances invoking our discretion, this panel cannot reach the merits of his appeal.

MURPHY, Circuit Judge.

Like the other two members of this panel, I agree that § 1915(g) precludes a court from allowing a pro se prisoner-plaintiff with three prior strikes to proceed in a civil suit unless he has prepaid the filing fee or can demonstrate the one exception to this otherwise absolute bar: that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Judge McKay, however, concludes that our decision in Garcia v. Silbert, 141 F.3d 1415 (10th Cir.1998), constitutes binding precedent and permits this court to exercise discretion to address the merits of an appeal filed by a prisoner-plaintiff with three prior strikes. Judge Hartz believes that such discretion arises not from § 1915(g) but from Rule 3(a)(2) of the Federal Rules of Appellate Procedure. Thus, both of my colleagues conclude that this court has discretion to address the merits of an appeal filed by a prisoner-plaintiff with three pri- or strikes; they disagree only on the source of that discretion and whether it should be exercised in this case. I believe this court lacks discretion under either § 1915(g) or Rule 3(a)(2).

I first disagree with the conclusion that this court’s opinion in Garcia does not clearly conflict with prior circuit precedent. Shortly after 28 U.S.C. § 1915 was amended by the Prison Litigation Reform Act of 1995 (“PLRA”), this court addressed whether § 1915(g) applied to actions dismissed as malicious or frivolous prior to the effective date of the PLRA. See Green v. Nottingham, 90 F.3d 415, 418-20 (10th Cir.1996). The court began its analysis by taking judicial notice that more than three actions or appeals filed by the prisoner-plaintiff had been dismissed as frivolous or malicious prior to the enactment of the PLRA. See id. at 418. ■ The court then stated that the prisoner-plaintiff, therefore, “cannot proceed in forma pauperis if § 1915(g) applies to suits dismissed prior to its enactment.” Id. (emphasis added). After first concluding that § 1915(g) was a procedural rule, the court held that prisoner-plaintiff suits dismissed as malicious or frivolous prior to the enactment of the PLRA count against the three strikes allowed under § 1915(g). See id. at 420. The court then held “that § 1915(g) prevents Mr. Green from proceeding in forma pauperis in this proceeding.” Id. (emphasis added). The court dismissed the prisoner-plaintiffs appeal and “direct[ed] the Clerk of this Court not to accept from [the plaintiff] any further extraordinary writs in noncriminal matters, or appeals of judgments in civil actions or proceedings, unless he pays the filing fees established by our rules.”¹ Id. Although the Green court did not directly address the issue of discretion, the court’s opinion, including its unequivocal direction to the clerk of the court, left open no possibility that this court, even in the exercise of its discretion, could allow the prisoner-plaintiff to proceed in forma pauper-is unless he prepaid the filing fees.

Less than a year after Green, this court addressed the question of whether the district court’s dismissal of the case then before the court on appeal could be counted as one of the prisoner-plaintiffs three strikes. See Pigg v. FBI, 106 F.3d 1497, 1497 (10th Cir.1997). Although not dispos-itive to its conclusion that the dismissal of the present action could not be counted, the court cited Green for the proposition that “[ § ] 1915(g) is not a jurisdictional limitation but merely requires the full prepayment of fees where the conditions of the statute are met.” Id. (emphasis added). ■ The court then remanded the matter to the district court for a determination of whether other suits filed by the prisoner-plaintiff should be counted as strikes. See id. at 1498. Presumably, the court’s discussion of the rule established in Green was intended to provide guidance to the district court if it concluded on remand that the prisoner-plaintiff did have three strikes.

In an order published in 1997, this court relied on Green to support its conclusion that a prisoner-plaintiffs three prior strikes prevented him from proceeding in forma pauperis on appeal. See In re Washington, 122 F.3d 1345, 1345 (10th Cir.1997). The court denied the prisoner-plaintiffs request to proceed in forma pauperis and, as in Green, instructed the clerk of the court to not accept any future filings from him in noncriminal matters unless the filing fee was prepaid. See id. Again, the restriction, on future filings foreclosed any possibility that this court could exercise its discretion' to allow the prisoner-plaintiff to proceed without prepayment.

Notwithstanding the unequivocal holdings in Green and In re Washington, this court thereafter held that because § 1915(g) is not a bar to jurisdiction, it would exercise discretion to address the merits of a prisoner-plaintiffs claims even though he had not prepaid the appellate filing fee. See Garcia, 141 F.3d at 1417 n. 1. To support its conclusion, Garcia relied on Pigg’s statement that “[ § ] 1915(g) is not a jurisdictional limitation,” but then ignored Pigg’s admonition that § 1915(g) “requires the full prepayment of fees where the conditions of the statute are met.” Pigg, 106 F.3d at 1497 (emphasis added).

Although neither Green nor In re Washington directly addressed the issue of this court’s discretion to proceed to the merits of appeals filed by prisoner-plaintiffs with three strikes, stare decisis includes “precedent in which a court has decided identical factual issues.” FDIC v. Jennings, 816 F.2d 1488, 1492 (10th Cir.1987); see also United States v. Meyers, 200 F.3d 715, 720 (10th Cir.2000) (“The precedent of prior panels which this court must follow includes not only the very narrow holdings of those prior cases, but also the reasoning underlying those holdings, particularly when such reasoning articulates a point of law.”). I can discern no difference between the facts presented in Green, In re Washington, and Garcia which would explain the conflicting treatment of the prisoner-plaintiffs claims in Garcia. In all three cases, the prisoner-plaintiff had three strikes and was attempting to proceed in forma pauperis on appeal. In both Green and In re Washington, we concluded that the plaintiff was not only foreclosed from proceeding in forma pau-peris in the appeal before the court, but he was absolutely barred from proceeding in this court in all further noncriminal matters unless he prepaid the filing fee. Because the clerk of the court was specifically directed not to accept any future filings, no panel of this court could ever exercise discretion to allow the plaintiffs to proceed on appeal without prepaying. In Garcia, however, we concluded that § 1915(g) did not bar this court from addressing the merits of the claims raised by the prisoner-plaintiff notwithstanding his failure to prepay the appellate filing fee. The Garcia opinion contains no fact, factor, or reason that Garcia should be treated differently or more favorably than Green or Washington.

There is no basis on which the holdings in these cases can be reconciled. Thus, I can only conclude that the holding in Garcia, that this court has discretion to address the merits of claims raised on appeal even when a prisoner-plaintiff with three strikes has failed to prepay the appellate filing fee, clearly conflicts with the unambiguous and unequivocal holdings in both Green and In re Washington. Green, being the first case to decide the identical factual issue presented in Garcia and the case at bar, constitutes binding circuit precedent which must be followed by subsequent panels of this court, including this panel. See Haynes v. Williams, 88 F.3d 898, 900 n. 4 (10th Cir.1996) (“[W]hen faced with an intra-circuit conflict, a panel should follow earlier, settled precedent over a subsequent deviation therefrom.”). Consequently, I believe this court has no discretion under § 1915(g) to address the merits of the claims presented on appeal by Mr. Dubuc because he has had three prior noncriminal matters dismissed as frivolous, malicious, or for failure to state a claim. My interpretation of Garcia is not inconsistent with that of Judge Hartz who believes the discretion exercised in Garcia arose from Rule 3(a)(2), not § 1915(g).

Although I disagree with Judge McKay’s interpretation of Garcia, I agree with his conclusion that Rule 3(a)(2) of the Federal Rules of Appellate Procedure does not provide this court with an alternative basis on which to proceed to the merits of Mr. Dubuc’s claims. Section 1915(g) is rendered wholly superfluous under Judge Hartz’s interpretation of Rule 3(a)(2) because this court could ignore its prohibition in every instance in which a prisoner-plaintiff with three strikes seeks to proceed on appeal without the prepayment of filing fees. There is a real conflict between Rule 3(a)(2) and § 1915(g) and that conflict must be resolved in favor of § 1915(g).

Both Judge Hartz and I agree that this court has no discretion under § 1915(g) to consider an appeal filed by a prisoner-plaintiff with three strikes until he pays the appellate filing fee. Judge McKay and I agree there is no discretion under Rule 3(a)(2) and we agree that Mr. Dubuc has accumulated three strikes. Accordingly, because Mr. Dubuc has not paid the appellate filing fee, this court cannot proceed to the merits of his appeal and it should be dismissed if he fails to pay the fee in full within thirty days.

1 . Consistent with the sole exception found in § 1915(g), the court specifically stated that its prohibition did not apply to appeals or petitions in which Mr. Green alleged he was under imminent danger of serious physical injury. See Green v. Nottingham, 90 F.3d 415, 420 (10th Cir.1996).