112 F.3d 818 (5th Cir. 1997), 96-41003, Carson v. Johnson

Docket Nº:96-41003.
Citation:112 F.3d 818
Party Name:Arthur X. CARSON, Plaintiff-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Defendant-Appellee.
Case Date:May 15, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 818

112 F.3d 818 (5th Cir. 1997)

Arthur X. CARSON, Plaintiff-Appellant,


Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Defendant-Appellee.

No. 96-41003.

United States Court of Appeals, Fifth Circuit

May 15, 1997

Rehearing Denied June 16, 1997.

Page 819

Arthur X. Carson, New Boston, TX, pro se.

Appeal from the United States District Court for the Eastern District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Texas state prisoner # 517349, Arthur Carson, proceeding pro se and in forma pauperis ("IFP"), appeals the construction of his habeas corpus petition as a 42 U.S.C. § 1983 suit, its dismissal, sanctions imposed upon him, and an order barring him from filing further actions IFP. Concluding that his petition is properly characterized as a § 1983 suit and that he is barred from proceeding IFP by 28 U.S.C. § 1915(g), we dismiss the appeal.


Carson alleges that he was placed in administrative segregation on the basis of his criminal conviction and his previous disciplinary offenses. He further states that the parole board will not grant parole to prisoners in administrative segregation. Finally, he claims that his placement is not reviewed as often as prison policy requires.

Carson filed in the district court for a writ of habeas corpus, contending that his placement in administrative segregation violates the Double Jeopardy and Ex Post Facto Clauses of the Constitution. The district court, adopting the recommendation of the magistrate judge, held that Carson's complaint was properly characterized as a civil rights suit under 42 U.S.C. § 1983 and dismissed it as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). 1 The court then sanctioned Carson $250 for his frequent filing of frivolous complaints and barred him from further filings under 28 U.S.C. § 1915(g).

The district court granted Carson leave to proceed IFP on appeal. Pursuant to Jackson v. Stinnett, 102 F.3d 132, 136-37 (5th Cir.1996), Carson has paid the partial filing fees required by 28 U.S.C. § 1915(a)-(b), as amended by the PLRA.



Section 804(c) of the PLRA added § 1915(g), which prohibits a prisoner from proceeding IFP if he has had three actions or appeals dismissed for frivolousness, maliciousness, or failure to state a claim. See Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir.1996). This provision often is referred to as the " 'three strikes' provision." Id. It states:

Page 820

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.


In considering the effect of the "three strikes" provision, we first must determine whether Carson's action falls under the PLRA's definition of "a civil action or proceeding." This requires us to determine (1) whether the PLRA applies to a habeas petition under 28 U.S.C. § 2254 and (2) whether Carson's action is properly characterized as a habeas petition or a § 1983 suit.

The PLRA requirements do not apply to habeas actions under 28 U.S.C. § 2255. See United States v. Cole, 101 F.3d 1076, 1077 (5th Cir.1996). We gave three reasons for this conclusion. First, "habeas proceedings are often determined to be outside the reach of the phrase 'civil action.' " Id. (quoting Santana v. United States, 98 F.3d 752, 754-55 (3d Cir.1996)) (some internal quotations marks omitted).

Second, we noted that Title I of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, §§ 101-108, Pub.L. No. 104-132, 110 Stat. 1214, 1217-26 (1996) (to be codified at 28 U.S.C. § 2244-2266; FED. R.APP. P. 22), which became effective two days before the PLRA did, contained separate procedures for addressing abuses of the habeas process. We held that this fact strongly suggests that Congress did not intend the PLRA to apply to habeas petitions. See Cole, 101 F.3d at 1077 (quoting Reyes v. Keane, 90 F.3d 676, 678 (2d Cir.1996)).

Finally, we recognized that applying the three strikes provision to habeas petitions "would be contrary to a long tradition of ready access of prisoners to federal habeas corpus...." Id. (quoting Martin v. United States, 96 F.3d 853, 855-56 (7th Cir.1996)) (internal quotation marks omitted). We were reluctant to find that Congress...

To continue reading