Gibbs v. Roman, 96-3534

Decision Date06 June 1997
Docket NumberNo. 96-3534,96-3534
Citation116 F.3d 83
PartiesHenry GIBBS, Jr., Appellant, v. Ms. Marcia ROMAN, SCI Somerset Librarian, United States of America, Intervenor * .
CourtU.S. Court of Appeals — Third Circuit

Nancy Winkelman (Argued), Joseph Lukens, Dee Dee Rutkowski, Schnader Harrison Segal & Lewis, Philadelphia, PA, for Appellant.

D. Michael Fisher, Attorney General, Amy Zapp, Senior Deputy Attorney General, John G. Knorr, III (argued), Chief Deputy Attorney General, Chief, Litigation Section, Office of the Attorney General of Pennsylvania, Department of Justice, Harrisburg, PA, John P. Hoyl, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Appellee.

Before MANSMANN, McKEE and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Appellant Henry Gibbs appeals from the final order of the district court dismissing his § 1983 suit under the "three strikes rule" of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). 1 We will vacate the district court's order and remand for further proceedings.

I.

Appellant Henry Gibbs, a prisoner who filed his complaint pro-se but is presently represented by counsel, brings this § 1983 action against Marcia Roman, the librarian at SCI-Somerset. Gibbs was formerly incarcerated at SCI-Somerset. Gibbs alleges that defendant Roman violated his constitutional rights when, in November 1995, she permitted an inmate-law clerk to read Gibbs' legal papers, reflecting information that he had been a government informant. This allegedly resulted in threats against Gibbs' life and physical attacks against him by other inmates. 2

On August 27, 1996, after entertaining Gibbs' Motion to Proceed In Forma Pauperis ("i.f.p."), the district court adopted the Report and Recommendation of the Magistrate Judge, and dismissed Gibbs' complaint under 28 U.S.C. § 1915(g). 3 The court found that Gibbs did not qualify for i.f.p. status since he had previously filed three frivolous lawsuits and was not in "imminent danger of serious physical injury". 28 U.S.C. § 1915(g). Gibbs then filed the instant appeal.

The district court had subject matter jurisdiction over this § 1983 matter pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary.

II.

The primary question that we must answer in this appeal is whether Gibbs' i.f.p. petition meets the criterion of § 1915(g) which provides an exception to the "three strikes" rule for inmates who are in "imminent danger of serious physical injury". 4

Gibbs' complaint charged that on December 4th and 10th 1995, among other things,

1. Inmate Holmes threatened to kill Plaintiff because of the letter from U.S. Attorney [name deleted], that revealed that Plaintiff was a government witness ...

* * * * * *

4. Plaintiff states as a fact that, on two seperate [sic] occasions, Plaintiff was physically attacked by several inmates, because of the exposure that Plaintiff was a government witness ...

5. Plaintiff alleges that, due to this life threatening situation, Plaintiff has suffered further mental stress ...

5. [sic] Plaintiff alleges that ... Plaintiff's life is in constant danger because of Defendants [sic] delibrate [sic] indifference to Plaintiff 's safety.

In dismissing Gibbs' case, the district court found that although Gibbs had made vague allegations that his "life is in constant danger" as a result of one inmate calling him a "snitch" and threatening his life, and other inmates attacking him, Gibbs had failed to demonstrate imminent harm, and therefore did not fall within the statutory exception.

On appeal, Gibbs argues that his contention that he was physically attacked on at least two occasions satisfies the"imminent danger" exception to the statute. He further argues that, when considering an i.f.p. application, a court must construe all factual allegations in favor of the petitioner, citing Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

In response, defendant Roman argues that Gibbs' life was not in danger at the time he filed his complaint, since he waited six months to file suit and did not produce any evidence of actual danger. Roman further argues that, by filing a suit for damages rather than injunctive relief, Gibbs was not seeking to protect his physical safety. Therefore she claims that allowing Gibbs' suit to go forward (i.e. by finding that he falls within the statutory exception) would not serve to remedy the alleged dangerous situation, which is the goal of the exception. Finally, Roman argues that, even if Gibbs had been in danger when he filed the suit, he has since been transferred to another prison, and therefore need no longer fear assaults. 5

The amicus brief filed by United States argues that we should remand this case to the district court for further fact-finding on the issue of imminent danger. The United States contends that the district court dismissed Gibbs' claim of danger "without substantive discussion", and that further probing of the issue is necessary in order to determine whether Gibbs falls within the "imminent danger" exception. The United States argues that, although Gibbs' allegations of danger were vague, "his allegations are sufficient to require further inquiry". The amicus brief also recommends that the district court explore the impact of Gibbs' subsequent transfer to another prison, and whether the transfer served to alleviate any "imminent danger".

III.

Upon review, we hold that the district court erred in discrediting Gibbs' allegations of imminent danger when it summarily dismissed his complaint under the "three strikes" rule. Under our liberal pleading rules, during the initial stage of litigation, a district court should construe all allegations in a complaint in favor of the complainant. See,e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996)(discussing 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990) (same). 6 In this case, Gibbs' claims of danger as stated in his complaint were rejected on their face by both the Magistrate Judge and the district court. Neither reviewed the complaint in light of our standard which requires that credit be given to all allegations in the complaint. No challenge to the allegations was made by defendant Roman (understandably, because the complaint had yet to be served upon her).

Gibbs' complaint clearly set out: (1) allegations of past attacks by other inmates; (2) allegations of death threats made by other inmates--thereby substantiating a claim of imminent danger of serious physical harm; (3) a claim for damages stemming directly from the physical harm posed to him by other inmates as an alleged result of Roman's actions. Gibbs' complaint therefore provided allegations of imminent danger experienced at the time the alleged incidents took place (December 1995), sufficient to survive the "three strikes" rule. By failing to consider the allegations of imminent danger, the district court ignored both the dictates of 1915(g) and, more particularly, the standard of giving credit to the allegations of the complainant as they appeared in the complaint.

We hold, therefore, that a complaint alleging imminent danger--even if brought after the prior dismissal of three frivolous complaints--must be credited as having satisfied the threshold criterion of § 1915(g) unless the "imminent danger" element is challenged. If the defendant, after service, challenges the allegations of imminent danger (as Roman has done here on appeal), the district court must then determine whether the plaintiff's allegation of imminent danger is credible, as of the time the alleged incident occurred, in order for the plaintiff to proceed on the merits i.f.p. Of course, if the defendant disproves the charge that the plaintiff was placed in imminent danger at the time of the incident alleged, then the threshold criterion of § 1915(g) will not have been satisfied and the plaintiff may not proceed absent the payment of the requisite filing fee. We emphasize that the proper focus when examining an inmate's complaint filed pursuant to § 1915(g) must be the imminent danger faced by the inmate at the time of the alleged incident, and not at the time the complaint was filed.

In resolving a contested issue of imminent danger, the district court may rely upon evidence supplied by sworn affidavits or depositions, or,...

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