Chavis v. Chappius

• Decision Date: 17 August 2010
• Docket Number: Docket No. 07-2304-pr.
• Citation: Chavis v. Chappius, 618 F.3d 162 (2nd Cir. 2010)
• Parties: George M. CHAVIS, Plaintiff-Appellant,v.P. CHAPPIUS, P. Corcoran, S. Skowly, J. Northrop, R. Barnard, C. Retrossi, C. Kerbein, C. Washburn, P. Jayne, E. Delany, M. Delaro, T. Hana, T. Morton, M. Miles, J. Ayers, R. Squires, M. Deburgomaster, S. Hodge, B. Brandt, Walsh, Jillston, B. Wolnarek, Angie, Carpenter, Shumaker, J. Irrizarry, Furhman, M. Mcginnis, H.A. Collect, D. Selsky, J. Escrow, Defendants,Andrew M. Cuomo, Attorney General of the State of New York, Amicus Curiae.
• Court: U.S. Court of Appeals — Second Circuit

618 F.3d 162

George M. CHAVIS, Plaintiff-Appellant,v.P. CHAPPIUS, P. Corcoran, S. Skowly, J. Northrop, R. Barnard, C. Retrossi, C. Kerbein, C. Washburn, P. Jayne, E. Delany, M. Delaro, T. Hana, T. Morton, M. Miles, J. Ayers, R. Squires, M. Deburgomaster, S. Hodge, B. Brandt, Walsh, Jillston, B. Wolnarek, Angie, Carpenter, Shumaker, J. Irrizarry, Furhman, M. Mcginnis, H.A. Collect, D. Selsky, J. Escrow, Defendants,Andrew M. Cuomo, Attorney General of the State of New York, Amicus Curiae. ^*

Docket No. 07-2304-pr.

United States Court of Appeals Second Circuit.

Argued: June 17, 2010.

Decided: Aug. 17, 2010.

COPYRIGHT MATERIAL OMITTED

Savvas A. Foukas(Vilia B. Hayes, on the brief), Hughes Hubbard & Reed LLP, New York, N.Y., for Plaintiff-Appellant.

Martin A. Hotvet, Assistant Solicitor General, for Nancy A. Spiegel, Senior Assistant Solicitor General, Barbara D. Underwood, Solicitor General, and Andrew M. Cuomo, Attorney General, New York, N.Y., for Amicus Curiae.

Before McLAUGHLIN, CALABRESI and LIVINGSTON, Circuit Judges.

CALABRESI, Circuit Judge:

Plaintiff-AppellantGeorge Chavis brought suit in the United States District Court for the Western District of New York, claiming inter alia, that he had been beaten and denied medical treatment by staff members and officials of Southport Correctional Facility (“Southport”), where he was incarcerated.Chavis sought leave to proceed in forma pauperis(“IFP”) under 28 U.S.C. § 1915.The District Court(Elfvin, J.) denied Chavis's motion, holding that Chavis had three “strikes” under § 1915(g) and had failed to allege an imminent danger of serious physical injury.The Court gave Chavis an opportunity to pay the filing fee, on pain of dismissal.Rather than pay the filing fee, Chavis filed a motion for leave to amend his complaint, making new allegations of threats and intimidation by Southport personnel; subsequently, he filed a motion seeking a preliminary injunction and temporary restraining order, claiming that the threats had been repeated on numerous occasions.The District Court(Siragusa, J.) construed Chavis's filings as a motion for reconsideration, denied the motion, and dismissed the complaint.

On appeal, Chavis argues that the District Court(1) miscounted his prior strikes, attributing two strikes to one case in which both Chavis's complaint and his subsequent appeal therefrom were dismissed as frivolous; (2) erred in finding that his original complaint did not allege imminent danger of serious physical injury; and (3) abused its discretion in denying leave to amend.We disagree with Chavis's first contention-resolving a previously open question in this Circuit-and hold that an incarcerated plaintiff incurs two strikes when a complaint and a subsequent appeal are independently dismissed for grounds listed in § 1915(g).But we agree that the District Court abused its discretion in denying leave to amend, and therefore remand.Because Chavis's complaint as supplemented by the facts added in his motions might well satisfy the imminent danger standard, we need not decide whether his original complaint would similarly have sufficed.Accordingly, we VACATE and REMAND to the District Court to allow amendment.

I.Background

A.Proceedings in the District Court

On August 10, 2006, George Chavis filed a pro se complaint against more than three dozen staff members and officials of Southport Correctional Facility (collectively, “Defendants”), where he was then incarcerated.¹Alleging that the defendants had committed a wide variety of wrongs, he sought relief under 42 U.S.C. § 1983 and the First, Sixth, Eighth, and Fourteenth Amendments.For present purposes, the only relevant allegations are those in which Chavis describes physical injury, threats of violence, and deprivation of medical treatment.He claimed that eight officers severely beat him on July 17, 2006 in retaliation for his filing grievances alleging prior misconduct by prison officials.This attack came shortly after Chavis received a threat of physical abuse.²He also asserted that a similar assault took place a year earlier, on August 12, 2005.

Chavis also alleged that, from November or December 2005 to May 2006, he was denied treatment for hepatitis B along with other needed medications, supplements, and medically issued clothing.Later in his complaint, he stated that “[o]n 100 numerous separate dates from this present date of civil suit activation dating back nearly eight to ten months” a medical staff member named Walsh had denied “emergency medical needs and prescription refills needs [sic],” which allegedly resulted in “extreme cruel and unusual punishment and further an atypical and significant hardship.”

Along with his complaint, Chavis sought leave to proceed IFP pursuant to 28 U.S.C. § 1915(a).In an order docketed on October 23, 2006, the District Court(Elfvin, J.) denied Chavis's motion.Under § 1915(g), a prisoner is barred from proceeding IFP if he or she has on three or more prior occasions “brought an action or appeal ... 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 found that Plaintiff had three such “strikes”: (1)Chavis v. Charnes,No. 99-CV-05072(S.D.N.Y.July 14, 1999), a complaint dismissed by the district court because it lacked an arguable basis in law or fact; (2) the subsequent appeal in Charnes, which was dismissed by the Second Circuit as frivolous seeNo. 99-0265(2d Cir.Feb. 25, 2000); and (3)Chavis v. Cunningham,No. 04-2814-pr(2d Cir.Mar. 11, 2005), in which the Second Circuit dismissed as frivolous an appeal from a grant of summary judgment in defendants' favor.³The District Court also found that “none of the [complaint's] wholly conclusory allegations rise to the level of imminent danger of serious physical injury.”Accordingly, the District Court held that the complaint must be dismissed unless plaintiff paid the filing fee by November 28, 2006.

On November 8, 2006, Chavis responded by filing a motion for leave to amend, emphasizing that he was in fact “in imminent danger of physical injury.”Although he did not assert other violent incidents, he claimed, inter alia, that one of the officers involved in the July 17 beating had “visit[ed]Plaintiff['s] new SHU-solitary cell verbally threatening to assault Plaintiff again” and that another had “visit[ed]Plaintiff['s] SHU-solitary cell for intimidation reasons.”Subsequently, on February 16, 2007, Chavis filed a motion seeking an order to show cause why a preliminary injunction should not issue.In his motion, Chavis claimed “repeated verbal threats of injury/death by defendants ... without cease,” citing to four newly filed grievances “and nearly a dozen more dated in this new year of 2007.”

On May 10, 2007, the District Court(Siragusa, J.) denied both motions and ordered the complaint dismissed.Despite Chavis's explicit statement that he was not filing a motion for reconsideration, the District Court viewed the motion to amend as “in substance a motion to reconsider the October 24, 2006 Order,” because most of the motion attempted to distinguish the case from a Second Circuit case upon which the District Court relied in concluding that the “imminent danger” exception did not apply.Considering the motion as such, the District Court found no reason to reexamine the October 24 order and therefore denied the motion to amend and dismissed the complaint for failure to pay the filing fee; the motion for a preliminary injunction was therefore deemed moot and hence appropriately dismissed.

B.Arguments on Appeal

Chavis timely appealed.The Second Circuit granted Chavis leave to proceed IFP and appointed counsel, directing counsel to address whether “(1) each case the district court cited as a strike was actually dismissed as frivolous, malicious, or for failure to state a claim; and (2) if a district court case that is a strike and an appeal therefrom that is also a strike should be counted as one or two strikes.”Chavis concedes that the three cases on which the District Court principally relied were dismissed on grounds listed in § 1915(g), but argues that they only count as two strikes, because a district court dismissal of a complaint and a circuit court dismissal of an appeal in the same action “are sequential proceedings in a single case and therefore are part of one ‘action’ for purposes of 28 U.S.C. § 1915(g).”As a result, Chavis argues, he had only two strikes at the time of filing and was not barred from proceeding IFP.Additionally, Chavis contends (a) that the District Court erred in concluding that his complaint did not allege an imminent danger of serious physical injury, and (b) that it abused its discretion in denying leave to file an amended complaint.

Because Defendants were never served, they are not parties to this appeal.In their stead, the State of New York(“the State”) filed an amicus brief to address the issue of whether the dismissals of a district court case and an appeal therefrom count as one or two strikes.The State argues that § 1915(g) treats the dismissal of suits and of their appeals as separate strikes.The amicus brief does not address the other issues raised in Chavis's appeal: whether Chavis alleged an imminent danger and whether his motion to amend was properly denied.

II.Discussion

A.Standard of Review

We review de novoa district court's ruling pursuant to 28 U.S.C. § 1915(g)Polanco v. Hopkins,510 F.3d 152, 155(2d Cir.2007), and review the denial of leave to amend a complaint for abuse of discretion, McCarthy v. Dun & Bradstreet Corp.,482 F.3d 184, 200(2d Cir.2007).

B.Section 1915(g)'s “Three Strikes” Rule

As amended by the Prison Litigation Reform Act of 1995 (PLRA), 28 U.S.C. § 1915 allows indigent prisoners to defer paying filing fees under a structured payment plan.See28 U.S.C. §...