Harris v. City Of N.Y.

• Decision Date: 02 June 2010
• Docket Number: Docket No. 09-0081-pr.
• Citation: 607 F.3d 18
• Parties: Tony HARRIS, Plaintiff-Appellant,v.CITY OF NEW YORK, Warden C-95, C.O. Miller, John Doe # 1, John Doe # 2, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

607 F.3d 18

Tony HARRIS, Plaintiff-Appellant,v.CITY OF NEW YORK, Warden C-95, C.O. Miller, John Doe # 1, John Doe # 2, Defendants-Appellees.

Docket No. 09-0081-pr.

United States Court of Appeals, Second Circuit.

Argued: April 12, 2010.

Decided: June 2, 2010.

Justine M. Mongan, Elizabeth S. Losey, (Jon Romberg, on the brief), Center for Social Justice, Seton Hall University School of Law, Newark, NJ, for Plaintiff-Appellant.

Karen M. Griffin, Assistant Corporation Counsel (Francis F. Caputo, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.

Before: LEVAL, KATZMANN and B.D. PARKER, Circuit Judges.

KATZMANN, Circuit Judge:

This case calls upon us in principal part to interpret the “three strikes rule” of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), which prohibits incarcerated prisoners from filing in forma pauperis in federal court if they have previously brought three or more actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief could be granted. In the matter at hand, our task is to determine whether, pursuant to the three strikes rule, a district court should dismiss a prisoner-plaintiff's complaint if he has been released from prison subsequent to the filing of his complaint. We hold that dismissal by the district court in such circumstances is appropriate. We also conclude that the three strikes rule need not be raised by the defendant in the pleadings in order to serve as grounds for dismissal. In addition, in determining whether prior dismissals constitute “strikes” under § 1915(g), courts may rely on docket sheet entries if they indicate with sufficient clarity the grounds for dismissal of the prior suits. Finally, we determine that the Plaintiff-Appellant does not qualify for the imminent danger exception under § 1915(g). We affirm the district court's dismissal of the Plaintiff-Appellant's complaint, but vacate the court's order of dismissal and remand to allow the court to issue a new order of dismissal permitting the Plaintiff-Appellant to apply for in forma pauperis status as a non-incarcerated plaintiff if he chooses to refile his complaint.

I

Plaintiff-Appellant Tony Harris filed a complaint under 42 U.S.C. § 1983 on September 7, 2007. Harris was an inmate at the City of New York Department of Corrections facility at Riker's Island at the time. The complaint alleged inter alia, that Harris was assaulted by approximately ten corrections officers at Riker's Island in New York City on or around July 14, 2005. Compl. at 2-3. Harris filed a grievance with prison authorities on July 15, 2005, additionally stating that his request for medical treatment for his injuries was denied. In an amended complaint filed March 14, 2008, Harris alleged that he was attacked again, in “January 2006 an[d] Spring 2007,” that he was “ass[a]ulted and taunted for filing suit by officers,” and that he suffered a ruptured eardrum, for which he was denied medical attention. Am. Compl. at 2-3. The amended complaint also alleged that he suffered a fractured jaw in the July 2005 attack. Id. at 3.

In tandem with his initial complaint, Harris sought leave to proceed in forma pauperis, which was granted by the court the same day the complaint was docketed. The defendants filed an answer to the amended complaint on August 5, 2008. The answer did not allege that Harris was in violation of the PLRA's three strikes rule. On September 30, 2008, the defendants sent a letter motion requesting that the court issue an order to show cause why Harris's in forma pauperis status should not be revoked under the three strikes rule (or, alternatively, hold a conference concerning that request). The defendants asserted that Harris had previously filed five claims or appeals constituting strikes under § 1915(g) while incarcerated.

On October 3, 2008 the district court issued an order to show cause instructing Harris to show, by October 30, 2008, why the court should not revoke his in forma pauperis status pursuant to the three strikes rule of 28 U.S.C. § 1915(g). On October 16, 2008, Harris filed a motion for leave to file non-prison service papers. He also filed an opposition to the order to show cause, asserting that he did not have three prior strikes and that he should not be deprived of in forma pauperis status under 28 U.S.C. § 1915(g) because inter alia, he “remains [in] and has suffered imminent danger of serious injury.”

On October 27, 2008 the district issued an order revoking Harris's in forma pauperis status and dismissing his complaint without prejudice on the grounds that Harris had accumulated four strikes under the PLRA, was not entitled to in forma pauperis status, and had not paid any filing fees. Harris v. City of New York, 07-cv-7894 (S.D.N.Y. Oct. 27, 2008) (order of dismissal). The order stated that Harris could refile the case upon payment of the filing fee and court costs. Id. Harris, however, had apparently been released from prison in mid-2008, prior to the district court's order of dismissal.

Harris filed a timely notice of appeal to this Court, which appointed pro bono counsel to represent Harris on appeal. The motions panel instructed counsel to argue “(1) whether the ‘three strikes' provision of the Prison Litigation Reform Act of 1995 (‘PLRA’) applies to a prisoner who has been released from custody; and (2) if the PLRA three strikes provision does apply, whether the district court correctly determined that Appellant had four prior PLRA strikes.”

II

Under the PLRA, prisoner-litigants granted in forma pauperis status must pay the full amount of the filing fee to the extent they can afford to, as measured by the funds in their prison accounts. 28 U.S.C. § 1915(b)(1). The fees are paid through periodic debits from the plaintiff's prison account, which are forwarded to the court by the custodial agency. Id. § 1915(b)(2). There is an exception to the PLRA's payment structure: Prisoner-plaintiffs who have accumulated three strikes are prohibited by the PLRA from bringing further actions or appeals in forma pauperis. Id. § 1915(g). The full text of the provision is as follows:

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. When a prisoner-plaintiff satisfies the imminent danger exception, the suit continues as if the plaintiff did not have three strikes.

III

Harris argues that § 1915(g) is inapplicable in the present case because he was no longer a prisoner at the time the district court determined that he had previously brought at least three meritless actions. This Court reviews questions of statutory interpretation de novo. Williams v. Beemiller, Inc., 527 F.3d 259, 264 (2d Cir.2008).

Harris's interpretation of § 1915(g) runs counter to the text of the provision. See Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 112 (2d Cir.2007) (“The law is well established that statutory construction begins with text because if the language of a statute is ‘unambiguous,’ no further inquiry is required.”). Section 1915(g) begins: “In no event shall a prisoner bring a civil action or appeal” if on three or more occasions he has brought a suit that qualifies as a strike. 28 U.S.C. § 1915(g) (emphasis added). The use of the word “bring” offers a clear indication that the provision goes into effect-and bars the suit under the in forma pauperis section-at the moment the plaintiff files his complaint or notice of appeal. See Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir.1998) (in determining when the “imminent danger” exception applies, noting that “the language of § 1915(g), by using the present tense, clearly refers to the time when the action or appeal is filed or the motion for IFP status is made”).

Had Congress intended that the three strikes rule would no longer apply once a prisoner had been released, it would have written the statutory provision differently. See Tafari v. Hues, 473 F.3d 440, 442 (2d Cir.2007) ( “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of the language accurately expresses the legislative purpose.”) (quoting Park N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985)). Because Harris was a prisoner at the time he “brought” the present action, the text of the statute mandates that the three strikes rule apply.

In support of his argument Harris cites this Court's decision in McGann v. Commissioner, 96 F.3d 28 (2d Cir.1996), which held that inmates who file suit while incarcerated but who have subsequently been released from custody are no longer required to pay filing fees under the payment scheme for incarcerated litigants, but are instead subject to the general in forma pauperis regime for indigent litigants. Id. at 30. Harris argues that McGann stands for the broad proposition that the provisions of 28 U.S.C. § 1915 do not apply to released prisoners.

This Court in McGann, however, interpreted a different section of the PLRA than the one at issue in the present case. The PLRA requires prisoner-litigants to pay the full amount of the filing fee under a carefully-structured regime in which they pay a fixed percentage of their prison account balances at regular intervals. See 28 U.S.C. § 1915(b). The difficulty the McGann Court confronted is that, once a plaintiff is no longer a prisoner, “there is no prison account from which to calculate and debit the required...