Medberry v. Butler, 97-4516

• Decision Date: 23 August 1999
• Docket Number: No. 97-4516,97-4516
• Parties: (11th Cir. 1999) DANIEL C. MEDBERRY, Plaintiff-Appellant, v. JOE BUTLER, in his official and individual capacity, J. JOHNSON, in his official and individual capacity, et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1189

185 F.3d 1189 (11th Cir. 1999)

DANIEL C. MEDBERRY, Plaintiff-Appellant, v. JOE BUTLER, in his official and individual capacity, J. JOHNSON, in his official and individual capacity, et al., Defendants-Appellees.

No. 97-4516

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

August 23, 1999

Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 97-319-CV-UUB Before ANDERSON, Chief Judge, MARCUS, Circuit Judge, and MILLS^*, Senior District Judge.

RICHARD MILLS, Senior District Judge:

This appeal raises two issues, one of which is an issue of first impression in this Circuit.

The first issue raised is whether the "three strikes" in forma pauperis provision of 28 U.S.C. 1915(g) violates the United States Constitution's guarantee against ex post facto laws.

The second issue raised--the one which is of first impression--is what showing must a prisoner with three strikes against him make in order to be allowed to proceed in forma pauperis because he is in imminent danger of serious physical injury.

We affirm.

I. BACKGROUND

Daniel C. Medberry is an inmate in the Florida Department of Corrections who is serving a 27 year prison sentence for sexual battery. Upon arriving at the Everglades Correctional Institute on August 22, 1996, Medberry informed the prison officials of his concern of being placed in the prison's general population. Specifically, Medberry advised the prison officials that because his offense of conviction was considered to be "repugnant" by the other inmates, he feared for his physical safety if he were to be placed in the prison's general population.

Nevertheless, the prison officials placed Medberry in the prison's general population, and as predicted by Medberry, he was verbally abused and harassed by the other inmates. The inmate's verbal assaults against Medberry, however, became physical on December 6, 1996, when members of the "Latin Kings" gang physically assaulted him and when the gang's leader threatened him with a "blade." Medberry reported the incident to the prison officials, and that same day, the prison officials placed him in administrative confinement.

After exhausting all of his administrative remedies, Medberry filed suit on February 6, 1997, in the United States District Court for the Southern District of Florida pursuant to 42 U.S.C. 1983 against four prison officials, Joe Butler, J. Johnson, R. Ashley, and Carl Berry, in their individual and official capacities, alleging that these four individuals acted with deliberate indifference for his safety in violation of the Eighth Amendment by placing him in the prison's general population. Medberry also alleged that he had been in administrative confinement since December 6, 1996. Along with his Complaint, Medberry filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. 1915.

On February 10, 1997, United States Magistrate Judge Charlene H. Sorrentino entered a report and recommendation recommending that Medberry's Complaint be dismissed pursuant to 28 U.S.C. 1915(g) because he had filed three or more suits which had been dismissed as frivolous, malicious, or failed to state a cause of action upon which relief may be granted and because he had failed to allege that he was under imminent danger of serious physical injury. Medberry filed objections to Magistrate Judge Sorrentino's report and recommendation, and on March 11, 1997, United States District Judge Ursula Ungaro-Benages denied his objections and adopted the report and recommendation. On March 25, 1998, Medberry filed a timely notice of appeal and a motion to proceed in forma pauperis on appeal. On April 22, 1998, the district court allowed Medberry's motion to proceed in forma pauperis on appeal. See Choyce v. Dominguez, 160 F.3d 1068, 1071 (5th Cir. 1998)(noting the seeming incongruity in the district court's denying a prisoner's motion to proceed in forma pauperis with the district court because he was not in imminent danger of serious physical injury but allowing him to proceed in forma pauperis on appeal).

II. ANALYSIS

Title 28 U.S.C. 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.

Id. Thus, if a prisoner has had three or more cases dismissed for one of these three reasons, a court must dismiss the prisoner's case.

Medberry does not deny that he has had three or more law suits dismissed as being frivolous, malicious, or for failing to state a cause of action upon which relief may be granted. Rather, Medberry argues that the cases which were dismissed should not be considered in determining whether he may proceed in forma pauperis pursuant to 28 U.S.C. 1915(g) because all of those previous suits were dismissed prior to the effective date¹ of the Prison Litigation Reform Act ("PLRA") which imposed the three strikes rule. As such, Medberry asserts that considering those cases would violate the United States Constitution's guarantee against ex post facto laws.

However, this Court has recently held that the three strikes in forma pauperis provision of 28 U.S.C. 1915(g) passes constitutional muster. Rivera v. Allin, 144 F.3d 719, 721 (11th Cir. 1998). Specifically, this Court has held that 1915(g)'s language makes it clear that the three strikes rule applies to claims dismissed prior to the effective date of the PLRA. Id. at 728-30 (citing cases). Accordingly, Medberry's ex post facto argument is without merit. See also Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir. 1998)(holding that 1915(g) does not violate the Constitution's Ex Post Facto Clause).

Alternatively, Medberry argues that he falls within 1915(g)'s exception to the three strikes rule because he is under imminent danger of serious physical injury. Medberry asserts that in his Complaint, he alleged that he feared for his life if he were forced to go onto the compound at the Everglades Correctional Institution. Therefore, Medberry claims that he has properly alleged an ongoing danger which satisfies 1915(g)'s exception to the three strikes rule.

Exactly what a prisoner with three strikes must show in order to be allowed to proceed in forma pauperis because he is in imminent danger of serious physical injury is an issue of first impression in this Circuit. The three circuit courts which have addressed this issue have reached three different conclusions. In Gibbs v. Roman, 116 F.3d 83 (3rd Cir. 1997), the Third Circuit held "that the proper focus when examining an inmate's complaint filed pursuant to 1915(g) must be the imminent danger faced by the inmate at the time of the alleged incident, and not at the time the complaint was filed." Id. at 86.

On the other hand, the Eighth Circuit held in ...