Abdul-Akbar v. McKelvie, ABDUL-AKBA

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtALDISERT; MANSMANN
Citation239 F.3d 307
Docket NumberNo. 98-7307,A,ABDUL-AKBA,98-7307
Decision Date18 February 2000

On Appeal from the United States District Court for the District for Delaware District Judge: Honorable Roderick R. McKelvie (D.C. Civ. No. 98-CV-00137) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Jerold S. Solovy, Esq., Barry Levenstam, Esq. (argued) Paul M. Smith, Esq., Jessie K. Liu, Esq., JENNER & BLOCK, Chicago, IL, ATTORNEYS FOR APPELLANT.

Carl Schnee, United States Attorney, Keith M. Rosen (argued), Assistant United States Attorney, Chase Manhattan Centre, Wilmington, DE, ATTORNEYS FOR APPELLEE,

Hon. Roderick R. McKelvie

Loren C. Meyers, Chief of Appeals Division, Robert F. Phillips (argued), Deputy Attorney General, Stuart B. Drowos, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE, ATTORNEYS FOR APPELLEES, James Collins; James Tyndall; Earl Messick; Turrit, Capt.; Melvin Henessey; Michael Deloy; Joe Johnson, Lt.; Stephen Smyk

D. Michael Fisher, Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section, Calvin R. Coons, Senior Deputy Attorney General, Office of the Attorney General of Pennsylvania, Harrisburg, PA, ATTORNEYS FOR COMMONWEALTH OF PENNSYLVANIA, Amicus Curiae.


Filed January 29, 2000.


ALDISERT, Circuit Judge.

The primary issue for decision is whether we should overrule the holding of Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997), interpreting 28 U.S.C. S 1915(g). Under this statute, popularly known as the "three strikes" rule, a prisoner may not file a new action or appeal in forma pauperis ("I.F.P.") if, on three or more prior occasions while incarcerated or detained, the prisoner has brought a federal action or appeal that was dismissed on the grounds that it was frivolous, malicious or fails to state a claim, unless the prisoner "is under imminent danger of serious physical injury." We held in Gibbs that "imminent danger" is measured at the time of the alleged incident, not at the time the complaint is filed. 116 F.3d at 86. Three of our sister courts of appeals have since rejected our teachings in Gibbs, holding instead that the court should assess "imminent danger" as of the time the prisoner's complaint is filed and that a prisoner's allegation that he faced danger in the past is insufficient to allow him to proceed I.F.P. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 884-885 (5th Cir. 1998). We now abandon the interpretation set forth in Gibbs and adopt that of our sister courts of appeals. We hold also that S 1915(g), as so interpreted, is constitutional.


Appellant Debro Siddiq Abdul-Akbar was most recently incarcerated by the Delaware Department of Corrections from June 10, 1994 through May 15, 1999 on state charges including robbery, conspiracy, assault and shoplifting. During the time material to Appellant's underlying proposed Complaint based on 42 U.S.C. S 1983, he was incarcerated at the Sussex Correctional Institute in Georgetown, Delaware. On May 17, 1999, Appellant reported to a community confinement center, and on May 27, 1999, he was released from the custody of the Department of Corrections.

Appellant has filed at least 180 civil rights or habeas corpus claims. Abdul-Akbar v. Dept. of Corrections, 910 F.Supp. 986, 998 (D. Del. 1995). In Abdul-Akbar v. Watson, 901 F.2d 329 (3d Cir. 1990), this court reviewed a district court order barring Appellant from filing any further S 1983 claims I.F.P. and held that a district court may enter an injunction precluding a prisoner from filing any S 1983 claims without leave of court and without making certain good faith certifications. 901 F.2d at 333. We stated that Abdul-Akbar's "history of repetitious and frivolous filings indicates a clear intent to abuse the courts and the I.F.P. process." Id. at 334. An injunction subsequently was entered by the district court. Abdul-Akbar v. Dept. of Corrections, 910 F. Supp. at 1009.

On February 10, 1998, Appellant filed a motion for leave to file a S 1983 Complaint, a proposed Complaint and a motion to proceed I.F.P. The proposed Complaint alleged that on or about January 9, 1998, prison officials arbitrarily sprayed Appellant with pepper gas and refused to provide him with medical treatment even though they knew that he suffers from asthma. Appellant also claimed that certain prison officials violated his civil rights by belonging to a racist organization, that one defendant failed to investigate properly the pepper spray incident, and that the district court judge violated his Sixth Amendment right of access to the courts by preventing his complaints from being heard.

The district court denied the motion to proceed I.F.P., reasoning that (1) Appellant had brought actions that the court had dismissed as frivolous on more than three prior occasions, and (2) he did not claim to be in imminent danger of serious physical injury.

The district court had jurisdiction over this case under 28 U.S.C. S 1331. We have jurisdiction because an order denying leave to proceed I.F.P. is a final, collateral order appealable under 28 U.S.C. S 1291. The appeal was timely filed. This court reviews de novo issues of statutory interpretation, Pennsylvania Mines Corp. v. Holland, 197 F.3d 114, 119 n.2 (3d Cir. 1999), and the constitutionality of a statute, DeSousa v. Reno, 190 F .3d 175, 180 (3d Cir.1999).


The discretionary power to permit indigent plaintiffs to proceed without first paying a filing fee was initially codified in the federal statutes in 1892. See Act of July 20, 1892, ch. 209 1-5, 27 Stat. 252. Congress enacted the I.F.P. statute, currently codified at 28 U.S.C.S 1915, "to ensure that administrative court costs and filing fees, both of which must be paid by everyone else who files a lawsuit, would not prevent indigent persons from pursuing meaningful litigation." Deutsch v. United States, 67 F.3d 1080, 1084 (3d Cir. 1995) (citing Denton v. Hernandez, 504 U.S. 25, 31 (1992)). Congress was also aware of the potential for abuse, and it included a subsection allowing for dismissal of frivolous or malicious actions. Denton, 504 U.S. at 31.

Congress subsequently enacted the Prison Litigation Reform Act ("PLRA" or "Act"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), largely in response to concerns about the heavy volume of frivolous prisoner litigation in the federal courts. See 141 Cong. Rec. S14408-01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole) (explaining that the number of prisoner suits filed "has grown astronomically--from 6,600 in 1975 to more than 39,000 in 1994"). In enacting the PLRA, Congress concluded that the large number of meritless prisoner claims was caused by the fact that prisoners easily obtained I.F.P. status and hence were not subject to the same economic disincentives to filing meritless cases that face other civil litigants. See 141 Cong. Rec. S7498-01, S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl) ("Filing frivolous civil rights lawsuits has become a recreational activity for long-term residents of prisons."); 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen. Dole) ("[P]risoners will now `litigate at the drop of a hat,' simply because they have little to lose and everything to gain."). To curb this trend, the PLRA instituted a number of reforms in the handling of prisoner litigation.

Among other things, the PLRA amended the I.F .P. statute as it applies to prisoners. Under the statute as amended, a prisoner who is allowed to proceed I.F.P . is not excused from paying filing fees, but is only excused from pre-paying them in full if they meet certain criteria. The PLRA now requires prisoners who qualify for I.F .P. status to pay by way of an initial partial fee, followed by installment payments until the entire fee is paid. 28 U.S.C. S 1915(b)(1). Congress also added S 1915(g), the "three strikes rule," which limits a prisoner's ability to proceed I.F.P. if the prisoner abuses the judicial system by filing frivolous actions. Prisoners may avoid the limitation in this provision, however, if they are under "imminent danger of serious physical injury."

This appeal requires us to decide when the existence of "imminent danger" is to be assessed; specifically, whether it is assessed as of the time the complaint is filed, or at some time in the past, even though that danger no longer exists when the complaint is filed.

Today we abandon the rule announced in Gibbs that "imminent danger" is assessed at the time of the alleged incident. We adopt, instead, the construction set forth by the Fifth, Eighth and Eleventh Circuit Courts of Appeals, that a prisoner may invoke the "imminent danger" exception only to seek relief from a danger which is "imminent" at the time the complaint is filed. We conclude that this interpretation is consistent with the plain language of S 1915(g), with congressional intent and with the legislative purpose of the PLRA as a whole.


This is a case of statutory construction, and we begin our analysis with the language of S 1915(g):

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...

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