Adepegba v. Hammons

• Decision Date: 31 December 1996
• Docket Number: No. 95-31249,95-31249
• Citation: 103 F.3d 383
• Parties: Valentino B. ADEPEGBA, Plaintiff-Appellant, v. Billy G. HAMMONS, Individually and in his official capacity as special agent assigned to F C I Oakdale; John L. Nixon, Individually and in his official capacity as acting supervisory special agent at F C I Oakdale, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 383

103 F.3d 383

Valentino B. ADEPEGBA, Plaintiff-Appellant, v. Billy G. HAMMONS, Individually and in his official capacity

as special agent assigned to F C I Oakdale; John L. Nixon,

Individually and in his official capacity as acting

supervisory special agent at F C I Oakdale, Defendants-Appellees.

No. 95-31249.

United States Court of Appeals, Fifth Circuit.

Dec. 31, 1996.

Valentino B. Adepegba, Marksville, LA, pro se.

Appeal from the United States District Court for the Western District of Louisiana.

Before BARKSDALE, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Valentino Adepegba, a federal prisoner, appeals the district court's dismissal of his in forma pauperis civil rights action as frivolous. His appeal raises several issues of first impression in this circuit regarding new in forma pauperis provisions of the Prison Litigation Reform Act.

I

Adepegba is a Nigerian citizen who entered the United States legally in 1982. While in the United States, Adepegba has been convicted of crimes including cocaine possession, illegal possession of firearms, and mail fraud. Proceeding pro se and in forma pauperis ("i.f.p."), Adepegba filed this civil rights action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against Billy Hammons and John Nixon, agents of the Immigration and Naturalization Service ("INS"). Adepegba alleges that Hammons and Nixon did not follow INS procedure in his interview and that they falsified an INS report that was admitted into evidence at his deportation hearing.

The district court construed Adepegba's complaint to state two causes of action and dismissed each, one as frivolous because it was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and the other for failure to exhaust administrative remedies under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. Adepegba filed a timely notice of appeal December 14, 1995.

This appeal is not Adepegba's first; indeed he is a frequent filer in this court. We have considered eleven prior Adepegba appeals, and we have dismissed all of them--three of them as frivolous. ¹ On April 26, 1996, after Adepegba filed notice of appeal in the instant case, the President signed into law the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA" or "Act"), which modifies the requirements for proceeding in forma pauperis ("i.f.p.") in federal courts. Among other things, the PLRA revokes prisoners' privileges to proceed i.f.p. if they have, on three prior occasions during detention, had an action or appeal dismissed as frivolous, malicious, or for failing to state a claim. 28 U.S.C. § 1915(g), as amended by PLRA. Section 1915(g) contains an exception that allows prisoners whose privileges have been revoked to proceed i.f.p. in cases involving imminent danger of serious physical injury. Id.

II

Before we address the merits of Adepegba's dismissal in the district court, we must first decide whether the new provisions of the PLRA apply. The new statute 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.

28 U.S.C. § 1915(g), as amended. This case presents two threshold issues: First, does section 1915(g) govern Adepegba's appeal, which was filed before the Act became law? Second, do Adepegba's prior dismissals bring him within the ambit of the "three strikes" provision of section 1915(g)? Both are issues of first impression in this circuit.

A

First we decide whether section 1915(g) applies to cases pending on the effective date of the statute. Adepegba filed a notice of appeal in this case on December 14, 1995, months before the PLRA became law. The question of whether to apply a new statute to a case pending on its effective date is governed by the Supreme Court's recent opinion in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

Landgraf established a two-part test to determine whether the statute should apply. First, courts should determine "whether Congress has expressly prescribed the statute's proper reach." Landgraf, 511 U.S. at ----, 114 S.Ct. at 1505 (emphasis added). If it has, the court must respect the stated will of Congress. Id. Second, where the statute does not contain an express effective date, courts must determine whether the statute would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. If it does, courts should not apply the statute to the pending case. Id.

Employing this analysis, we find that Congress has specified no effective date for the PLRA. See Green v. Nottingham, 90 F.3d 415, 419 (10th Cir.1996) (holding that PLRA lacks the kind of "unambiguous directive" required by Landgraf ). No section evidences Congressional intent, so we apply the default rule that the PLRA became effective on the day it was signed into law. Norman J. Singer, 2 Sutherland Statutory Construction, § 33.06 at 12 (5th ed.1993). Congress was also silent as to whether courts should apply the new statute in cases pending on the PLRA's effective date. However, as the Court noted in Landgraf, the absence of specific legislative authorization does not automatically render improper a court's decision to apply a new statute to events that predated its passage. 511 U.S. at ----, 114 S.Ct. at 1501. We therefore turn to step two of the Landgraf analysis.

Under step two, we should not apply the statute if we find that it would do any of three things: "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. at ---, 114 S.Ct. at 1505. We do not believe that applying the provisions of section 1915(g) in this case runs afoul of the second step of Landgraf. We have long recognized that there is no absolute "right" to pursue a civil appeal i.f.p.; rather it is a privilege extended to those unable to pay filing fees in a timely manner. Startti v. United States, 415 F.2d 1115, 1116 (5th Cir.1969). Furthermore, every limitation of a privilege does not count as a liability or a duty. Section 1915(g) governs procedure, and it does little more than apply the same rules to prisoners that apply to everyone else who brings an action or appeal.

We note that "[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity." Landgraf, 511 U.S. at ----, 114 S.Ct. at 1502. The Supreme Court has long held that, because rules of procedure govern secondary conduct rather than primary conduct, applying them to cases pending on their effective date does not violate presumptions against retroactivity. Id. at ---, 114 S.Ct. at 1502, citing McBurney v. Carson, 99 U.S. 567, 569, 25 L.Ed. 378 (1878). Therefore the Court has upheld procedural changes even where they work to the disadvantage of defendants in pending cases. Landgraf, 511 U.S. at ---- n. 28, 114 S.Ct. at 1502 n. 28, citing Dobbert v. Florida, 432 U.S. 282, 293-94, 97 S.Ct. 2290, 2298-99, 53 L.Ed.2d 344 (1977); Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925).

Section 1915 is a procedural statute governing the process by which indigent individuals, including prisoners, bring civil actions or appeals in the federal courts. Before amendment, section 1915 allowed qualifying prisoners to bring an action or appeal without prepaying court fees, which are normally in excess of $100. See 28 U.S.C. § 1913 note (Judicial Conference Schedule of Fees). The amended provisions of section 1915(b) allow qualifying individuals to pay the filing fee in installments over time. 28 U.S.C. § 1915(b), as amended. Although section 1915(g) attaches consequences to past actions, we find that these consequences are matters of procedure. Section 1915(g) does not affect a prisoner's substantive rights, and it does not block his or her access to the courts. A prisoner may still pursue any claim after three qualifying dismissals, but he or she must do so without the aid of the i.f.p. procedures. We therefore find that application of this procedural rule to pending appeals does not raise the retroactivity concerns discussed in Landgraf. Accord Green v. Nottingham, 90 F.3d, 415, 420 (10th Cir.1996) (holding that section 1915(g) does not run afoul of Landgraf because it is a "procedural rule"); ² Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) ("All § 1915 has ever done is excuse prepayment of docket fees; a litigant remains liable for them, and for other costs, although poverty may make collection impossible.").

The second reason that application of section 1915(g) does not raise retroactivity concerns is that it does not impose new or additional liabilities, but instead requires collection of a fee that was always due. In providing procedures to litigate in forma pauperis, Congress created an exception to the general rules under 28 U.S.C. §§ 1911-14, which impose filing fees on federal court litigants. Section 1915(g) puts prisoners on the same footing as every other petitioner in federal court. We hold that this is not a duty or a liability under Landgraf.

The revocation of this privilege is not new, either. Before the PLRA, courts routinely revoked a prisoner's ability to proceed i.f.p. after numerous...