Banos v. O'Guin, 97-40354

• Decision Date: 26 June 1998
• Docket Number: No. 97-40354,97-40354
• Citation: 144 F.3d 883
• Parties: John W. BANOS, Plaintiff-Appellant, v. Michael O'GUIN, Captain, Jeffery Catoe; Richard Pillot, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 883

144 F.3d 883

John W. BANOS, Plaintiff-Appellant, v. Michael O'GUIN, Captain, Jeffery Catoe; Richard Pillot,

Defendants-Appellees.

No. 97-40354.

United States Court of Appeals, Fifth Circuit.

June 26, 1998.

John W. Banos, New Boston, TX, pro se.

Leslie W. Dippel, Austin, TX, for Defendants-Appellants.

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

Before REAVLEY, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:

On March 28, 1996, John W. Banos, Texas prisoner # 54531, proceeding pro se and in forma pauperis ("IFP") filed a 42 U.S.C. § 1983 complaint alleging that on January 18, 1996 he had a verbal altercation with several Texas Department of Criminal Justice ("TDCJ") officers. Later that day, he was ordered to submit to a body cavity search. When Banos resisted, TDCJ officers used force to conduct the search. Banos filed additional pleadings alleging that a similar incident occurred on June 11, 1996, after he filed his original suit. Banos contended that the body cavity searches were conducted in violation of prison rules and for the purpose of sexually harassing him. He also alleged that "defendants sexually harassing & using excessive force & assaulting plaintiff places him in immediate physical injury."

The district court found that Banos had filed at least four prior actions that had been dismissed as frivolous, that he had not alleged that he was in imminent danger of serious bodily injury and therefore dismissed his complaint pursuant to 28 U.S.C. 1 1915(g). The dismissal order does not mention Banos' allegation of "immediate physical injury."

Banos filed a notice of appeal and an application to proceed IFP on appeal. The magistrate judge assessed a partial filing fee and allowed Banos to proceed IFP on appeal.

ANALYSIS

The district court's determination that § 1915(g) bars Banos from proceeding IFP in a civil action seems incongruous with the grant of leave to appeal IFP. Section 1915(g) provides:

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 district court did not err in finding, and Banos does not contest the fact, that he has had at least three dismissals on the basis of frivolousness. See Banos v. Caldwell, No. 97-40186 (5th Cir. Aug. 15, 1997) (unpublished); Banos v. Gail, No. 97-40466 (5th Cir. Aug. 15, 1997) (unpublished); Banos v. Brown, No. 97-40468 (5th Cir. Aug. 15, 1997) (unpublished).

In light of these three "strikes," Banos cannot proceed on appeal IFP unless the statutory exception applies, that is, unless he "is under imminent danger of serious physical injury." § 1915(g); see Adepegba v. Hammons, 103 F.3d 383, 388 (1996). This case requires us to determine what showing must be made by a plaintiff who asserts that he should be allowed to proceed IFP because he is in imminent danger of serious physical injury. The plain language of the statute leads us to conclude that a prisoner with three strikes is entitled to proceed with his action or appeal only if he is in imminent danger at the time that he seeks to file his suit in district court or seeks to proceed with his appeal or files a motion to proceed IFP. See 1915(g).

The only other circuit that has addressed this issue came to a different conclusion. The Third Circuit, in Gibbs v. Roman, 116 F.3d 83 (3rd Cir.1997), held that an inmate filing a complaint pursuant to § 1915(g) must allege imminent danger at the time of the alleged incident that serves as the basis of the complaint rather than at the time the complaint was filed. Gibbs, 116 F.3d at 86. We read the statute to require the inquiry concerning the prisoner's danger to be made at the time of the IFP motion.

In revising § 1915, the 104th Congress intended to discourage the filing of frivolous IFP law suits. See H.R.REP., No. 104-21, § 202, at 22 (1995). Congress designed the new IFP provision to require every IFP litigant to pay the requisite filing fees in full. 28 U.S.C. § 1915(b). However, IFP status allows an indigent...