103 F.3d 383 (5th Cir. 1996), 95-31249, Adepegba v. Hammons

Docket Nº:95-31249.
Citation:103 F.3d 383
Party Name:Valentino B. ADEPEGBA, Plaintiff-Appellant, v. 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.
Case Date:December 31, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 383

103 F.3d 383 (5th Cir. 1996)

Valentino B. ADEPEGBA, Plaintiff-Appellant,

v.

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.

No. 95-31249.

United States Court of Appeals, Fifth Circuit

December 31, 1996

Page 384

Valentino B. Adepegba, Marksville, LA, pro se.

Appeal from the United States District Court for the Western District of Louisiana.

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

Page 385

Adepegba filed notice of 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 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...

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