Dubuc v. Johnson

• Decision Date: 02 January 2003
• Docket Number: No. 01-5122.,01-5122.
• Citation: 314 F.3d 1205
• Parties: Brian Dale DUBUC, Plaintiff-Appellant, v. Satayabama JOHNSON, sued as: Dr. Johnson of the Tulsa County Jail; Nurse Rose; Nurse Linda; Doyle Edge, Sgt.; Earl McClaflin, sued as: Corporal McLoughlon; Diana Jane Cook, sued as: Corporal Cook; Zachary J. Vierheller, sued as: Detention Officer Zack Veirhiller; Officer Warren, detention officer; Officer Shawn, detention officer; Wenceslao Aguila, sued as: detention officer Aguila; Officer Martain, detention officer; Stanley Glanz, Sheriff Tulsa County; Ron Isman, medical administrator, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

314 F.3d 1205

Brian Dale DUBUC, Plaintiff-Appellant, v. Satayabama JOHNSON, sued as: Dr. Johnson of the Tulsa County Jail; Nurse Rose; Nurse Linda; Doyle Edge, Sgt.; Earl McClaflin, sued as: Corporal McLoughlon; Diana Jane Cook, sued as: Corporal Cook; Zachary J. Vierheller, sued as: Detention Officer Zack Veirhiller; Officer Warren, detention officer; Officer Shawn, detention officer; Wenceslao Aguila, sued as: detention officer Aguila; Officer Martain, detention officer; Stanley Glanz, Sheriff Tulsa County; Ron Isman, medical administrator, Defendants-Appellees.

No. 01-5122.

United States Court of Appeals, Tenth Circuit.

January 2, 2003.

Brian Dale DuBuc, Granite, OK, for Plaintiff-Appellant.

Daniel S. Sullivan, Catherine Louise Campbell, Best & Sharp, Bobby L. Latham, Jr., Kenneth E. Wagner, Latham & Wagner, Scott F. Lehman, Fuller, Chlouber, Frizzell & Lehman, Steven E. Holden, Holden Glendening & McKenna, Fred J. Morgan, Dick A. Blakely, Linda K. Greaves, Tulsa, OK, for Defendants-Appellees.

Before MURPHY, McKAY, and HARTZ, Circuit Judges.

ORDER

We VACATE the district court's grant of Plaintiff's motion to proceed in forma pauperis and direct Plaintiff to pay the full filing fee within thirty days. Plaintiff's failure to pay the filing fee as directed will result in the dismissal of his appeal for failure to prosecute. See Young v. Miller, 144 F.3d 1298 (10th Cir.1998). The opinions of the panel in support of and in opposition to this Order are attached.

OPINION

McKAY, Circuit Judge.

Plaintiff Dubuc appeals for the second time claims brought pursuant to 42 U.S.C. § 1983. On Plaintiff's first appeal, we affirmed the district court's dismissal and grant of summary judgment on several of his original claims. However, we remanded for further proceedings Plaintiff's claims based on his allegation that detention officers had used excessive force while moving him to a new cell for disciplinary reasons. See Dubuc v. Johnson, No. 99-5107, 1999 WL 1101851, 1999 U.S.App. LEXIS 31594 (10th Cir.1999).

Upon remand, the district court granted Defendants' Fed.R.Civ.P. 50(a) motion for judgment as a matter of law as to the supervisory defendants. The jury returned a verdict in favor of the remaining Defendants. The district court granted Plaintiff's motion to proceed in forma pauperis on appeal. Accordingly, Plaintiff filed his appeal without prepayment of the appropriate fees. Plaintiff challenges the district court's denial of a transcript at government expense, the district court's denial of Plaintiff's motion to amend his complaint, various juror issues, and alleged defects occurring during trial proceedings.

Plaintiff is a prisoner bringing a civil appeal after having at least three prior actions or appeals dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief can be granted. See D.C. No. 97-CV-650 (N.D.Okla. Apr. 13, 1998); D.C. No. 93-CV-192 (E.D.Okla. Jan. 30, 1995); D.C. No. 92-CV-193 (N.D.Okla. Apr. 22, 1993). Title 28 U.S.C. § 1915(g) applies to prisoners who have filed at least three prior frivolous actions or appeals. Section 1915(g) states:

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. An action or appeal that has been dismissed as frivolous, malicious, or for failure to state a claim is commonly referred to as a "strike."

There is some confusion in this circuit concerning the effect that an appeal filed pursuant to § 1915(g) has on our ability to review the merits of a three-strike-prisoner-plaintiff's claims who has not paid the requisite appellate fees. It is possible to read into our cases three separate approaches — § 1915(g) is a jurisdictional rule preventing any review of the merits, § 1915(g) is not jurisdictional in nature but contains a condition precedent (prepayment of appellate fees) which prevents review of the merits until appellate fees have been paid, or § 1915(g) is not a jurisdictional rule and the court in its discretion may review the merits of a prisoner's claims.

Whether viewed from the so-called plain language perspective or more broadly to determine Congress' intent, § 1915(g)'s mandate is that "in no event" shall a post-three-strikes civil action be brought. To the extent that the language of our cases or our practice may have departed from this absolute bar, they are contrary to the statute.

We first addressed the proper scope of § 1915(g) in Green v. Nottingham, 90 F.3d 415, 420 (10th Cir.1996). In Green we stated, "Section 1915(g) generally prevents a prisoner from proceeding in forma pauperis in civil actions if three or more of his prior suits have been dismissed as frivolous or malicious, or for failure to state a claim." Id. at 418. While the words "generally prevents" may subsequently have been viewed as importing some discretion, properly read they merely alert readers that § 1915(g)'s "in no event" language is subject to a single statutory exception for circumstances where "the prisoner is under imminent danger of serious physical injury." The court concluded that § 1915(g) was a "procedural rule governing in forma pauperis filings by prisoners[,]" and that Green was precluded from proceeding in forma pauperis on appeal because he had accumulated at least three strikes. Id. at 420.

The notion that § 1915(g) might be considered jurisdictional in nature was raised in our subsequent decisions. In Pigg v. FBI, 106 F.3d 1497 (10th Cir.1997), we held that "[s]ection 1915(g) is not a jurisdictional limitation but merely requires the full prepayment of fees where the conditions of the statute are met." Id. (citation omitted). In In re Washington, 122 F.3d 1345 (10th Cir.1997), we denied the petitioner's request to proceed in forma pauperis on appeal because he had accumulated at least three strikes. We held that "[p]etitioner may resubmit his petition by paying the required filing fee." Id. In these two cases, § 1915(g) is viewed not as announcing a jurisdiction rule but instead as imposing a condition precedent to filing an appeal after a prisoner has accumulated three strikes. Accordingly, the technical language of jurisdiction is unnecessary to fully implement § 1915(g)'s clear intent.

The relationship of § 1915(g)'s prohibition and our ability to nevertheless proceed to the merits of a prisoner's appeal was further complicated by our decision in Garcia v. Silbert, 141 F.3d 1415 (10th Cir. 1998). In a footnote, the court reiterated our prior holdings that § 1915(g) was not jurisdictional and concluded "we therefore [can] elect to reach the merits of this action." Id. at 1417, n. 1. Garcia's claims were then addressed on the merits. Many of our unpublished decisions have relied upon Garcia to justify reaching the merits of a prisoner's appeal when the prisoner has failed to prepay the appellate fees and has accumulated at least three prior strikes.

While Garcia apparently held that the court could within its discretion determine a prisoner's appeal on the merits despite § 1915(g)'s provisions, a separate panel of this court indirectly rejected Garcia's holding just two weeks later. In Young v. Miller, 144 F.3d 1298 (10th Cir.1998), the court refused to reach the merits of a prisoner's appeal holding that since the prisoner had three prior strikes and was not "in imminent danger of serious physical injury, he cannot proceed under the in forma pauperis provisions." Id. at 1299. The court concluded that "the district court erred in granting Young's motion to proceed in forma pauperis, and th[e] appeal was not properly filed." Id. It then vacated the district court's order and directed the prisoner to pay the full filing fee within thirty days or face dismissal of his appeal.

Section 1915(g) on its face allows but one statutory exception to the otherwise comprehensive requirement that prisoners with at least three prior strikes prepay appellate fees. That exception applies only in situations where "the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Apart from this single statutory exception, § 1915(g)'s "in no event" language must be applied.

Section 1915(g) represents Congress' attempt to balance the needs of overloaded judges to hear cases of individuals who have not abused the judicial process in the past with prisoners who have abused the judicial process on at least three prior occasions through frivolous filings. There is no question that § 1915(g) is constitutional. See White v. Colorado, 157 F.3d 1226, 1232-35 (10th Cir.1998) (holding that if status is not a fundamental right and that § 1915(g) is rationally related to the legitimate end of deterring frivolous lawsuits). As we have stated previously, "The right of access to the courts is neither absolute nor unconditional." Schlicher v. Thomas, 111 F.3d 777, 781 (10th Cir.1997) (quotation omitted). Section 1915(g) simply removes the government's temporary subsidy for prisoner appeals in cases where the prisoner has filed at least three prior frivolous petitions. A prisoner may continue to file actions, even frivolous ones, but must prepay all applicable filing fees.

I recognize the potential danger of Congress' choice. Section 1915(g) can prevent a prisoner who has filed three or more frivolous actions from litigating a meritorious constitutional claim until that prisoner can pay the appropriate filing fees. Yet, this is the consequence of Congress' choice. A natural hazard of balancing the potentially divergent needs of two or more distinct groups is the possibility that one of...