Garrett v. Murphy

• Decision Date: 29 October 2021
• Docket Number: Nos. 20-2719 & 21-2810,s. 20-2719 & 21-2810
• Citation: 17 F.4th 419
• Parties: Allen Dupree GARRETT, Appellant v. Phil MURPHY, Governor of the State of New Jersey; Rebecca Franceschini, Captain of Camden County Correctional Facility
• Court: U.S. Court of Appeals — Third Circuit

17 F.4th 419

Allen Dupree GARRETT, Appellant

v.Phil MURPHY, Governor of the State of New Jersey; Rebecca Franceschini, Captain of Camden County Correctional Facility

Nos. 20-2719 & 21-2810

United States Court of Appeals, Third Circuit.

Submitted: September 22, 2021

Filed: October 29, 2021

Allen Dupree Garrett, Camden County Correctional Facility, 330 Federal Street, Camden, NJ 08101, Pro Se Appellant

Grace Harter, Courtney Hinkle, Eva Schlitz, Georgetown University Law Center, Appellate Courts Immersion Clinic, 600 New Jersey Avenue, N.W., Suite 312, Washington D.C., 20001, Madeline Meth, Brian S. Wolfman, Hannah Mullen, Georgetown University Law Center, Appellate Courts Immersion Clinic, 600 New Jersey Avenue, N.W., Suite 312, Washington D.C., 20001, Court-Appointed Amicus Curiae

Andrew J. Bruck, Tasha M. Bradt, Deborah A. Hay, Agnes I. Rymer, Matthew J. Lynch, Office of Attorney General of New Jersey, Division of Criminal Justice, 25 Market Street, Richard J. Hughes Justice Complex, Trenton, NJ 08625, Counsel for Appellees

Before: JORDAN, PORTER, and RENDELL, Circuit Judges.

OPINION OF THE COURT

PORTER, Circuit Judge.

Allen Dupree Garrett is a prisoner at the Camden County Correctional Facility. He has commenced numerous civil actions against prison officials, state officials, and the United States. Garrett has so far avoided paying filing fees for these lawsuits by proceeding in forma pauperis. All his lawsuits have been unsuccessful. Garrett appeals the dismissal of his latest lawsuit to this Court, asking once more to proceed in forma pauperis. Because Garrett has filed many fruitless lawsuits, this Court queried whether he should be allowed to avoid prepaying filing fees under the three-strikes rule. 28 U.S.C. § 1915(g). Garrett's eligibility to avoid prepaying fees turns in part on whether suits barred by Heck v. Humphrey are properly dismissed for failure to state a claim.

512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Because this is an important question of law that has divided the circuits, we appointed the Georgetown Law Appellate Courts Immersion Clinic as amicus to address this and other issues relevant to Garrett's application. Amicus has ably discharged its responsibilities, but we nevertheless conclude that Garrett has struck out. A suit dismissed under Heck is dismissed for failure to state a claim and counts as a strike. We will deny Garrett's motion to proceed in forma pauperis. To press his appeal, Garrett must first pay the filing fee.

I

Garrett is a New Jersey state prisoner and frequent litigant. Since his federal conviction in 2012, Garrett has brought at least ten civil suits in federal court.

In his latest suit, Garrett sued the Governor of New Jersey and another state official under 42 U.S.C. § 1983. App. 25 – 26. Garrett's complaint asserts two claims. First, that New Jersey state officials are keeping him in pretrial detention with deliberate indifference to his imminent risk of contracting COVID-19 and suffering severe physical injury, in violation of his substantive due process rights. Second, that he has been kept in prison for too long without a trial, in violation of his right to a "speedy trial." Garrett requests immediate release and $100 million in damages.

At Garrett's request, the District Court granted Garrett in forma pauperis status. Under the Prison Litigation Reform Act ("PLRA"), before serving the complaint, the District Court had to screen and dismiss Garrett's complaint sua sponte if it is frivolous or malicious, fails to state a claim, or seeks monetary relief from an immune defendant. 28 U.S.C. § 1915(e)(2)(B)(i)–(iii). In performing this preliminary screening duty, the District Court first addressed Garrett's due process claim and concluded that his complaint "is a string of non-sequiturs and case citations, and there are no facts to support any claim ... for due process violations." App. 8. The District Court dismissed Garrett's due process claim "without prejudice" and with leave to amend "within 45 days" of the order. App. 12. The District Court also dismissed Garrett's speedy trial claim but did so "with prejudice," because the claim was properly raised only "in a habeas corpus action." App. 11–12.

Nearly one hundred days later, Garrett appealed the District Court's order. But it is well settled that "a dismissal without prejudice and with leave to amend isn't a final order." Weber v. McGrogan , 939 F.3d 232, 237 (3d Cir. 2019). We therefore advised Garrett that we likely lacked jurisdiction over his appeal. Garrett then elected to stand on his complaint and sought a final judgment from the District Court to perfect his right to appeal. App. 19. The District Court obliged, dismissing Garrett's complaint "with prejudice" in a final judgment order. App. 18 – 21. But Garrett never filed a new or amended notice of appeal in the District Court, and a notice of appeal must be filed within thirty days "after the entry" of judgment, not before entry of judgment. 28 U.S.C. § 2107(a) (emphasis added); Marshall v. Comm'r Pa. Dep't of Corr. , 840 F.3d 92, 97 (3d Cir. 2016). This filing requirement is jurisdictional. Selkridge v. United of Omaha Life Ins. Co. , 360 F.3d 155, 161 (3d Cir. 2004).

II

We must first confirm our jurisdiction to hear this appeal. The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction over timely appeals from the District Court's "final" orders. 28 U.S.C. § 1291. But Garrett appealed too early, and he appealed from the District Court's initial non-final dismissal order, not the final order dismissing his action.

Garrett, however, has filed what we construe to be a second notice of appeal in this Court. The document, labeled "2nd Notice," cites the docket number for the District Court proceeding, names the parties, and asserts Garrett's "right" to bring suit before this Court after a final judgment. ECF No. 20. That is enough to constitute a notice of appeal under Rule 3(c) and the liberal standards we apply to pro se litigants. Fed. R. App. P. 3(c)(4). While Garrett mistakenly filed the second notice of appeal in our Court, that is not fatal. Under Rule 4(d), when a notice of appeal is "mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted." Fed. R. App. P. 4(d). Garrett's second notice was received by this Court on October 5, 2020, less than thirty days after the District Court's judgment order, so it is timely. We have transmitted Garrett's second notice of appeal to the District Court, and we have consolidated the appeals.

We have jurisdiction over Garrett's second notice of appeal, so we will proceed to consider Garrett's application for in forma pauperis status.¹

III

By the mid-1990s, Congress was concerned about the "sharp rise in prisoner litigation in the federal courts." Woodford v. Ngo , 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). To address that concern, Congress enacted reforms to "filter out the bad claims filed by prisoners and facilitate consideration of the good." Coleman v. Tollefson , 575 U.S. 532, 535, 135 S.Ct. 1759, 191 L.Ed.2d 803 (2015) (brackets and citation omitted). One of those reforms was the PLRA's three-strikes rule. 28 U.S.C. § 1915(g). That rule prevents a prisoner² from suing in forma pauperis—that is, without first paying the filing fee—if three or more civil actions or appeals filed by the prisoner have previously been "dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] 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). After Garrett sought to proceed in forma pauperis, we invoked the three-strikes rule. Garrett denied that he had struck out and claimed to be under imminent danger of serious physical harm.

We now proceed to count Garrett's strikes, stopping if we count to three. If Garrett has three strikes, we will consider whether he is in imminent danger of serious physical injury. If he is not, we will deny his application for in forma pauperis status, and we will defer consideration of the merits until he pays the filing fee.

A

We first address whether Garrett's three dismissals under Heck v. Humphrey count as strikes for "failure to state a claim" under 28 U.S.C. § 1915(g). In Heck , the Supreme Court held that a prisoner lacks a "cause of action" under § 1983 if the prisoner is challenging an "allegedly unconstitutional conviction or imprisonment" before having the conviction or sentence overturned. 512 U.S. at 486–87, 489, 114 S.Ct. 2364. Analogizing the claim to a "common-law cause of action for malicious prosecution," the Supreme Court noted that "[o]ne element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused." Id. at 484, 114 S.Ct. 2364 (emphasis added) (citing W. Keeton et al., Prosser and Keeton on Law of Torts 874 (5th ed. 1984)). To prevent improper collateral attacks on convictions or sentences through money damages actions, the Supreme Court applied an analogous favorable-termination requirement to § 1983 actions. Id. at 484–87, 114 S.Ct. 2364. The Court held that:

[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.

Id. at 487, 114 S.Ct. 2364. More precisely, the plaintiff seeking damages "must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or...