128 F.3d 1310 (9th Cir. 1997), 97-35200, Tierney v. Kupers

Docket Nº:97-35200, 97-35201.
Citation:128 F.3d 1310
Party Name:D.A.R. 13,531 Michael C. TIERNEY, Plaintiff-Appellant, v. Harold KUPERS, Defendant-Appellee. Michael C. TIERNEY, Plaintiff-Appellant, v. Crystal CORLISS; Loretta Lovano; Andrea Brynn, Defendants-Appellees.
Case Date:October 31, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1310

128 F.3d 1310 (9th Cir. 1997)

D.A.R. 13,531

Michael C. TIERNEY, Plaintiff-Appellant,

v.

Harold KUPERS, Defendant-Appellee.

Michael C. TIERNEY, Plaintiff-Appellant,

v.

Crystal CORLISS; Loretta Lovano; Andrea Brynn, Defendants-Appellees.

Nos. 97-35200, 97-35201.

United States Court of Appeals, Ninth Circuit

October 31, 1997

Submitted Sept. 10, 1997. *

Michael C. Tierney, Clallam Bay, Washington, Pro se, plaintiff-appellant.

No appearance for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-96-05958-RJB, D.C. No. CV-96-05959-RJB.

Before: CANBY, T.G. NELSON, and KLEINFELD, Circuit Judges.

Page 1311

T.G. NELSON, Circuit Judge:

A 1996 amendment to 28 U.S.C. § 1915 limited the ability of prisoners, if they had filed three previous actions dismissed as frivolous, to proceed in forma pauperis in order to avoid paying filing fees. 28 U.S.C. § 1915(g). Washington state prisoner Michael Tierney appeals pro se the district court's dismissal, pursuant to that section, of his 42 U.S.C. § 1983 actions. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because we conclude that the § 1915(g) calculation includes claims dismissed prior to the effective date of the statute, we affirm.

I.

Effective April 26, 1996, Congress enacted the Prison Litigation Reform Act ("PLRA"). Pub.L. No. 104-134, § 804(g), 110 Stat. 1321 (1996). In part, the PLRA amended the portion of 28 U.S.C. § 1915 which deals with "proceedings in forma pauperis." Specifically, the new law prohibited prisoners from bringing a civil action or appeal in forma pauperis

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).

On November 5, 1996, Tierney, a prisoner, filed two actions under 42 U.S.C. § 1983, both of which were accompanied by applications to proceed in forma pauperis. Prior to filing his present § 1983 actions, Tierney filed six other actions, while incarcerated in the State of Washington, which...

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