143 F.3d 1210 (9th Cir. 1998), 95-35161, Canell v. Lightner

Docket Nº:95-35161.
Citation:143 F.3d 1210
Party Name:D.A.R. 4827 Alvin Howard CANELL, Plaintiff-Appellant, v. Officer Roderick LIGHTNER; Robert Skipper, Multnomah County Sheriff; Multnomah County Detention Center, Defendant-Appellee.
Case Date:May 08, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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143 F.3d 1210 (9th Cir. 1998)

D.A.R. 4827

Alvin Howard CANELL, Plaintiff-Appellant,

v.

Officer Roderick LIGHTNER; Robert Skipper, Multnomah County

Sheriff; Multnomah County Detention Center,

Defendant-Appellee.

No. 95-35161.

United States Court of Appeals, Ninth Circuit

May 8, 1998

Argued and Submitted April 7, 1997.

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Nicholas W. Marchi, De La Cruz, Carney, and Marchi, Seattle, Washington, for plaintiff-appellant.

Gerald H. Itkin, Office of Multnomah County Counsel, Portland, Oregon, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Owen M. Panner, Chief District Judge, Presiding. D.C. No. CV-93-00723-OMP.

Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District Judge. [*]

REINHARDT, Circuit Judge:

Alvin Howard Canell appeals the district court's grant of summary judgment dismissing his § 1983 action against Officer Roderick Lightner, Sheriff Robert Skipper, and the Multnomah County Detention Center for violations of his First Amendment rights. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

BACKGROUND

During the two-month period from March 4, 1993 to May 17, 1993, Canell was held in pretrial detention at the Multnomah County Detention Center. During a part of that time, Lightner worked three nights a week as a correctional officer in the unit where Canell was housed. Canell alleges that Lightner, a licensed minister of the Church of God, actively sought to convert inmates to his Christian faith. According to Canell, Lightner regularly brought his Bible to work and placed it in the inmates' plain view. He engaged in religious debate and discussion with inmates, performed mock preaching, and sang Christian songs while on duty. For example, one evening while Canell was

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watching a television program about a gay pride march, Lightner told him that homosexuality was wrong and proceeded to cite several Bible passages. Canell further alleges that Lightner disturbed his Muslim prayers by singing Christian songs or preaching. Canell complained to several officers about these occurrences. Subsequently, in mid-April 1993, Lightner was transferred out of the module which housed Canell. In total, Lightner was on duty in Canell's module for only six weeks and worked a maximum of eighteen days in that location during that period.

Canell filed this action alleging that Lightner's proselytizing activities and the prison officials' failure to stop those activities immediately violated his rights under the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution. In granting the defendants' summary judgment motion, with respect to the Multnomah County Detention Center, the district court held that Canell did not allege facts or provide evidence tending to show that Lightner had acted pursuant to an official policy or custom. With respect to Sheriff Skipper, it held that, because he had not personally participated in the activities and there was no vicarious liability under § 1983, the only way to hold him liable would be under a "failure to train" theory. As to this claim the court granted summary judgment in favor of Skipper on the ground that Canell failed to offer sufficient evidence that Skipper had acted with deliberate indifference in training officers regarding prisoners' First Amendment rights. Regarding Canell's Establishment Clause claim against Officer Lightner, the district court held that because Lightner's actions "were sporadic, of short duration, and ceased when he no longer supervised Canell," Lightner was entitled to summary judgment. With respect to the Free Exercise claim against Lightner, the district court rejected Canell's contention that Lightner's interference with his ability to pray constituted an unreasonable interference with his rights. Canell appealed.

Prison Litigation Reform Act

Before we address the merits of Canell's claim, we must consider two threshold issues. Both arise out of the Prison Litigation Reform Act ("the Act"), which President Clinton signed into law on April 26, 1996. The newly enacted § 1915(g) of Title 28 of the United States Code affects the ability of prisoners to file in forma pauperis, while the new § 1997e(e) permits the filing of prisoner actions for mental or emotional injury only if there is a prior showing of physical injury.

A.

The first provision, § 1915(g), provides in relevant part:

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.

The plain language of the section indicates that it does not apply to pending cases on appeal, as is the case here. See Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 2062, 138 L.Ed.2d 481 (1997) ("[I]n determining a statute's temporal reach generally, our normal rules of construction apply."). The provision states that "in no event shall a prisoner bring a civil action or appeal a judgment in a civil action ... under this section." 28 U.S.C. § 1915(g) (emphasis added). Canell was permitted to proceed in forma pauperis when he filed his action on June 17, 1993. The final order granting summary judgment in this case was entered on January 20, 1995 and Canell filed his notice of appeal on February 3. Therefore, Canell both brought his original action and appealed the judgment prior to the signing of the Act on April 26, 1996. Accordingly, § 1915(g) does not apply in Canell's case.

Our conclusion is consistent with Marks v. Solcum, 98 F.3d 494, 496 (9th Cir.1996). In that case we considered whether 28 U.S.C. § 1915(e)(2) applied to cases pending prior to its enactment date of April 26, 1996. That provision permits any prisoner action to be dismissed, regardless of whether a filing fee

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has been paid, if it is "frivolous or malicious" or "fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2). Under that section, an action may be dismissed at any time regardless of when it was brought, if it falls within the defined category. Under the provision at issue in this case, § 1915(g), however, whether dismissal is warranted does not depend upon the merits of the case being brought; certain parties are simply barred from bringing certain actions. While we recognize that the circuits are divided on this question, 2 we hold that § 1915(g) does not apply to actions filed or appeals noticed prior to its enactment on...

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