Rivera v. Allin

Citation144 F.3d 719
Decision Date23 June 1998
Docket NumberNo. 97-2868,97-2868
Parties11 Fla. L. Weekly Fed. C 1570 Vincent F. RIVERA, Plaintiff-Appellant, v. Catherine B. ALLIN, Health Services Administrator; Teresa K. Dowling, Health Information Specialist, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Kathleen M. Williams, Tim Cone, Fed. Pub. Defender's Office, Miami, FL, H. Jay Stephens, Fed. Pub. Defender's Office, Orlando, FL, for Plaintiff-Appellant.

Robert A. Butterworth, Atty. Gen., Charlie McCoy, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, FL, for Defendants-Appellees.

Barbara L. Herwig, John Hoyle, U.S. Dept. of Justice, Civil Div., Washington, DC, Thomas E. Scott, Adalberto Jordan, U.S. Attys., Miami, FL, for United States.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT, Chief Judge, and RONEY and LAY *, Senior Circuit Judges.

HATCHETT, Chief Judge:

In this appeal, we uphold as constitutional the "three strikes" in forma pauperis provision of 28 U.S.C.A. § 1915(g) (West Supp.1998), section 804(d) of the Prison Litigation Reform Act of 1995 (PLRA), Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321, 1374-75 (April 26, 1996).

I. BACKGROUND

On May 9, 1997, appellant Vincent Rivera, a Florida prisoner, filed a civil rights complaint under 42 U.S.C. § 1983 in the United States District Court for the Northern District of Florida. Proceeding without counsel, Rivera alleged that a prison doctor "disregard[ed]" his medical needs and "fondle[d]" his genitals during a physical examination. Rivera sought punitive damages, correction of records and restoration of "gain time" lost due to disciplinary action.

Contemporaneously with his complaint, Rivera sought leave to proceed in forma pauperis (IFP), that is, without prepaying the entire $150 filing fee, and attached an affidavit of indigency and a certified copy of his prison account statement. A magistrate judge issued a report and recommendation that the district court transfer Rivera's case to the Middle District of Florida, which encompassed Rivera's place of incarceration. Rivera objected to the recommendation, contending that the Middle District had previously "refused to provide [him] with due process of law" in two prior cases, Rivera v. Singletary, 96-1307-CIV-J-99C, and Rivera v. Perrin, 96-650-CIV-J-20B. A district judge of the Northern District, however, adopted the magistrate judge's recommendation and transferred the case.

On June 23, 1997, before service of process on the defendants, a district judge of the Middle District denied Rivera's pending application to proceed IFP. The court took judicial notice of three of Rivera's prior prison-generated lawsuits that judges of the Middle District had dismissed as frivolous, malicious or failing to state a claim upon which relief may be granted: (1) Rivera v. Tornin, 93-170-CIV-ORL-22; (2) Rivera v. Arocho, 96-275-CIV-J-99S; and (3) Rivera v. Parker, 96-325-CIV-J-10. Because of these three "prior occasions" and Rivera not being in "imminent danger of serious physical injury[,]" the court concluded that 28 U.S.C. § 1915(g) rendered Rivera ineligible for IFP status. The court dismissed Rivera's case without prejudice, advising that he "may initiate a new civil rights action by filing a new civil rights complaint form and the full $150.00 filing fee."

Following the dismissal of his case, Rivera filed a notice of appeal and an updated affidavit of indigency in the district court. Finding that Rivera did not appeal in good faith, the district court ordered him to prepay the entire $105 appellate filing fee. Rather than requiring him to prepay the entire fee, however, the clerk of this court obtained Rivera's written consent to deduct from his prison account an initial partial payment, and subsequent monthly installment payments, to satisfy the appellate filing fee.

On February 12, 1998, this court sua sponte appointed the Federal Public Defenders for the Middle and Southern Districts of Florida to represent Rivera on appeal. The United States intervened pursuant to 28 U.S.C. § 2403(a), and the State of Florida accepted our invitation to participate as amicus curiae. Expediting the appeal, the court directed Rivera, the United States and Florida to address the constitutionality of section 1915(g) "in addition to other issues which they wish to raise." 1

II. DISCUSSION

Leave to proceed IFP is, and always has been, the exception rather than the rule. To commence a civil lawsuit in federal district court, the general rule is that initiating parties must prepay a filing fee. See 28 U.S.C.A. § 1914(a) (West Supp.1998). Similarly, to appeal a judgment of the district court, appellants ordinarily prepay a filing fee. See 28 U.S.C.A. § 1913 & note (schedule of fees). 2 Prior to the enaction of the PLRA, however, federal courts could waive the filing fee requirement for any indigent, regardless of prisoner status:

Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security thereof, by a person who makes affidavit that he is unable to pay such costs or give security thereof.

28 U.S.C. § 1915(a) (1994).

On April 26, 1996, this law changed when the President signed into law the PLRA. See Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir.1996) ("[T]he PLRA became effective on the day it was signed into law."). Under the PLRA, federal courts may continue to except non-prisoner indigents from prepaying filing fees. See 28 U.S.C.A. §§ 1915(a)(1) (West Supp.1998). Courts may not, however, continue to except prisoner indigents from prepaying filing fees. 3 Instead, prisoner indigents must prepay at least a partial filing fee:

[I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee ... [followed by] monthly payments....

28 U.S.C.A. § 1915(b)(1)-(2) (partial and installment payment formulas omitted). A limited exception exists only for prisoners who have "no assets and no means by which to pay the initial partial filing fee." 28 U.S.C.A. § 1915(b)(4). 4 In Mitchell v. Farcass, this court recently rejected a prisoner's equal protection challenge to the PLRA's filing fee provisions' disparate treatment of prisoner indigents vis-a-vis non-prisoner indigents, concluding that "Congress had ample justification (e.g., prisoners often have an abundance of free time, live in a nearly cost-free environment, and have unique incentives to file meritless or frivolous lawsuits) in differentiating between" them. 112 F.3d 1483, 1489 (11th Cir.1997).

At issue today is the PLRA's treatment of "frequent filer" prisoner indigents (that is, prisoners who have had at least three prior prison-generated lawsuits or appeals dismissed as frivolous, malicious or failing to state a claim upon which relief may be granted) vis-a-vis other prisoner indigents:

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.A. § 1915(g). This provision of the PLRA, "commonly known as the 'three strikes' provision," requires frequent filer prisoners to prepay the entire filing fee before federal courts may consider their lawsuits and appeals. Lyon v. Krol, 127 F.3d 763, 764 (8th Cir.1997). The only exception to section 1915(g) is if the frequent filer prisoner is "under imminent danger of serious physical injury." 28 U.S.C.A. § 1915(g).

Raising issues of first impression in this circuit, Rivera challenges the constitutionality of section 1915(g) on four grounds: (1) the First Amendment right to access the courts; (2) the separation of judicial and legislative powers; (3) the Fifth Amendment right to due process of law; and (4) the Fourteenth Amendment right to equal protection, as incorporated through the Fifth Amendment. Alternatively, Rivera raises retroactivity concerns, contending that the district court erred in counting as strikes lawsuits dismissed prior to April 26, 1996, the date the PLRA became effective. Finally, Rivera asserts that two of his prior cases, Rivera v. Arocho, 96-275-CIV-J-99(S), and Rivera v. Parker, 96-325-CIV-J-10, were not proper "strikes" that is, they were not dismissed as frivolous, malicious or failing to state a claim upon which relief may be granted.

Rivera's constitutionality and retroactivity arguments "present legal questions that we address in a plenary fashion." Mitchell, 112 F.3d at 1487. Similarly, we review the district court's determination of qualifying strikes de novo. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997); Adepegba, 103 F.3d at 387.

A.

The United States Constitution provides that "Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances." U.S. Const. amend I. Rivera focuses on one aspect of the First Amendment, "the right of access to the courts[.]" Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 2169, 76 L.Ed.2d 277 (1983). Specifically, Rivera argues that section 1915(g)'s purpose and effect is to prevent him and other frequent filer prisoner indigents from filing civil lawsuits--even meritorious ones--since they cannot afford to prepay the entire...

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