Lucien v. Jockisch

• Decision Date: 07 January 1998
• Docket Number: No. 96-2450,96-2450
• Citation: 133 F.3d 464
• Parties: Rudolph LUCIEN, Plaintiff-Appellant, v. Diane JOCKISCH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 464

133 F.3d 464

Rudolph LUCIEN, Plaintiff-Appellant, v. Diane JOCKISCH, Defendant-Appellee.

No. 96-2450.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 1997.

Decided Jan. 7, 1998.

Alan S. Mills (argued), Uptown People's Law Center, Chicago, IL, for Plaintiff-Appellant.

Rita M. Novak, Office of the Attorney General, A. Benjamin Goldgar, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for State of Illinois.

Barbara L. Herwig, Robert M. Loeb (argued), Department of Justice, Civil Division, Appellate Section, Washington, DC, for Intervenor.

Before CUDAHY, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Rudolph Lucien, a prisoner currently incarcerated at Stateville Correctional Center, attempted to sue a prison official who had transferred him to a different prison. Lucien alleged that the transfer was in retaliation for earlier litigation commenced by Lucien against the official. The district court denied Lucien's petition to proceed in forma pauperis (IFP); dismissed his complaint as time-barred; and barred him from proceeding IFP in the future pursuant to the "three-strikes" provision of the Prison Litigation Reform Act of 1996, 28 U.S.C. § 1915(g). For the reasons given below, we hold that the complaint was filed within the statute of limitations and that the prospective order under § 1915(g) was improper. We therefore reverse the district court's dismissal of Lucien's complaint as time-barred, vacate the portion of the order relating to the prospective bar under § 1915(g), and remand for further proceedings consistent with this opinion.

I. Background

On March 14, 1996, Rudolph Lucien lodged ¹ a pro se complaint and petition to proceed in forma pauperis with the district court for the Northern District of Illinois. The complaint named Diane Jockisch, the Transfer Coordinator of the Illinois Department of Corrections, as the defendant. It alleged that on December 5, 1995, Jockisch transferred Lucien from Menard Correctional Center to Stateville Correctional Center in retaliation for earlier lawsuits filed by Lucien against Jockisch and other officials in 1993 and 1995. The complaint asserted that this retaliatory transfer violated Lucien's due process and equal protection rights, and it sought damages and injunctive relief under 42 U.S.C. § 1983.

On April 25, 1996, the district court ² entered a prepayment order concluding that, although Lucien was unable to prepay the entire filing fee, Lucien must prepay a partial filing fee in the amount of $34.43. If Lucien paid the partial fee within 45 days, the court would grant Lucien's request to proceed IFP; alternatively, the court stated that it would waive the partial fee if Lucien could show why partial prepayment should not be required. On May 8, 1996, Lucien asked the court to reconsider the imposition of the partial prepayment fee and submitted an affidavit claiming that he was totally without funds. The district court denied this motion on May 16 but granted Lucien additional time to come up with the $34.43. Lucien again moved that the court reconsider the partial fee.

On June 4, 1996, the district court entered a final order dismissing the case. The court found that Lucien's § 1983 claim was barred by the statute of limitations, and it concluded that "[t]herefore, the plaintiff's petition for leave to proceed in forma pauperis must be denied and his complaint must be dismissed." Order of June 4, 1996 at 3. ³ In addition, the court barred the plaintiff from ever proceeding in forma pauperis in the future:

As a final concern, the court's Order of May 16, 1995, warned the plaintiff about possible ramifications of pursuing a time-barred claim. In addition, this court and the other divisions of the Central District of Illinois have dismissed previous cases of the plaintiff's as frivolous, see e.g., Lucien v. Johnson (Case Number 91-2067) and repeatedly admonished him about potential sanctions for frivolous litigation. See, e.g., Lucien v. Roper, 90-2420 (Order of May 9, 1991); Lucien v. Wollberg, 93-1388 (Order of January 21, 1994). [The plaintiff's appeals in each of those cases were also dismissed as groundless.] This lawsuit constitutes at least the plaintiff's fourth "strike."

Because the plaintiff has filed at least three frivolous lawsuits in federal court while incarcerated, he is hereby barred from proceeding in forma pauperis in any case unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g) (enacted April 26, 1996).

Id. at 3.

Lucien appeals the district court's dismissal of his complaint. ⁴ He argues that the district court erred in concluding that his complaint was time-barred, and he further contends that applying § 1915(g) to bar him from proceeding IFP in the future violates his constitutional rights of equal protection and meaningful access to the courts. Because of the procedural posture of the case, Defendant Jockisch had never been served with process. Accordingly, at the court's request, the Attorney General of Illinois filed a brief defending the constitutionality of § 1915(g). In addition, the United States intervened in the appeal and also filed a brief defending § 1915(g).

II. Discussion

A. Statute of Limitations

The state statute of limitations for personal injury suits provides the limitations period for Lucien's § 1983 action. See Wilson v. Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938, 1946-47, 85 L.Ed.2d 254 (1985). In Illinois, this period is two years. 735 Ill. Comp. Stat. § 5/13-202. Thus, Lucien's complaint is time-barred only if the events giving rise to his cause of action occurred more than two years prior to his filing suit.

Lucien's suit does not run afoul of the statute of limitations. The district court stated that Lucien's suit arises from an allegedly retaliatory transfer that occurred in October 1993. Order of June 4, 1996 at 2. Although the complaint does mention a transfer in October 1993, this is not the gravamen of Lucien's cause of action. According to the complaint, Lucien was transferred on October 25, 1993 in retaliation for previous litigation in which Lucien charged Department of Corrections officials with a different retaliatory transfer that occurred in June 1993. When Lucien sued on the October 1993 transfer, the complaint alleges, he was transferred again (on December 5, 1995) in retaliation for this suit. Thus, Lucien alleges a pattern of retaliatory transfers, culminating in the December 1995 transfer. The December 1995 transfer is the starting point for measuring the limitations period. Doe v. Montessori Sch. of Lake Forest, 287 Ill.App.3d 289, 223 Ill.Dec. 74, 678 N.E.2d 1082, 1089 (1997) (cause of action for torts accrues at the time the plaintiff suffers the injury); see also Nowak v. Szwedo, 704 F.Supp. 153, 157 (N.D.Ill.1989) (measuring the limitations period from the date of the retaliatory transfer). Lucien's complaint, which was received by the district court in March 1996, falls well within the two-year period. Accordingly, Lucien's complaint was not time-barred, and his complaint should not have been dismissed on that basis.

B. Effect of the Prison Litigation Reform Act's Three Strikes Provision

This leaves us with the district court's prospective order barring Lucien from proceeding IFP in the future. The court relied on 28 U.S.C. § 1915(g), which codifies § 804(d) of the Prison Litigation Reform Act (PLRA), Pub.L. 104134, 110 Stat. 1321-73, 1321-74 (effective April 26, 1996). This section prevents a prisoner from proceeding IFP if courts have previously dismissed three of the prisoner's suits as frivolous, malicious, or for failing to state a claim. ⁵ Lucien argues that § 1915(g) violates the Fifth Amendment's equal protection guarantee and his fundamental right of meaningful access to the federal courts.

Before we can consider these issues, however, we must first determine whether Lucien's complaint is subject to the PLRA. If the PLRA applies, then Lucien, whom the district court found to have three strikes against him (even prior to his present litigation), would be barred from proceeding in forma pauperis by § 1915(g). ⁶ Because he could not proceed IFP, Lucien would be obligated to prepay the entire filing fee. His failure to pay the fee would mandate dismissal of his complaint, regardless of its merits, and he would remain liable for the filing fee. See Newlin v. Helman, 123 F.3d 429, 434 (7th Cir.), petition for cert. filed, Oct. 20, 1997 (No. 97-6466). In contrast, if the PLRA does not apply to his complaint, then Lucien may proceed IFP if he meets the requirements of the pre-PLRA in forma pauperis regime.

The applicability of the PLRA to a prisoner's complaint normally depends on when the complaint is filed. In Lucien's case, although the complaint was received by the district court on March 14, 1996, which is before the PLRA's effective date of April 26, the complaint was not filed until June 4, 1996, the date on which the district court decided Lucien's petition to proceed IFP. See Hutchinson v. Spink, 126 F.3d 895, 899 (7th Cir.1997) ("A complaint is not deemed to be 'filed' ... until the requisite fees have been paid or the complainant has been granted leave to proceed IFP."); see also Thurman v. Gramley, 97 F.3d 185, 189 (7th Cir.1996) ("[A]n appeal lodged before April 26, but ineffective because the appellant lacks IFP status, does not become 'filed' until the motion has been acted on, one way or the other."). Thus, Lucien's complaint was filed after the effective date of the PLRA.

Establishing the filing date, however, does not end the inquiry into the applicability of the PLRA. When a complaint is actually received by the district court prior to the PLRA's effective date, the district court's delay in acting on the complaint (by granting or denying IFP status) until after the effective date does not automatically bring the complainant under the PLRA. In Thurman, we...