Jones v. Smith

• Decision Date: 19 June 2013
• Docket Number: Docket No. 12–401–pr.
• Citation: 720 F.3d 142
• Parties: Michael JONES, Plaintiff–Appellant, v. Joseph SMITH, Superintendent, Shawangunk Correctional Facility, John Maly, Superintendent, Shawangunk Correctional Facility, Pedro Diaz, Regional Health Service Administration, Lt. Gardner, Lieutenant, Shawangunk Correctional Facility, John Rapp, Food Service Administration, Shawangunk Correctional Facility, Maryann Genovese, MD, Shawangunk Correctional Facility, Catherine Wells, Administrative Nurse, Shawangunk Correctional Facility, Rabbi A. Hirowitz, Rabbi, Shawangunk Correctional Facility, Palen, Lieutenant, Shawangunk Correctional Facility, Brooks, Correctional Officer, Shawangunk Correctional Facility, Kimbler, Sergeant, Shawangunk Correctional Facility, William Brown, Superintendent, Eastern Correctional Facility, Thomas Griffin, Dept. Superintendent, Eastern Correctional Facility, Mikhail Gusman, MD, Eastern Correctional Facility, Olga Khramova, Nurse, Eastern Correctional Facility, Louis Pingotti, Captain, Eastern Correctional Facility, Steven Schoonmaker, Correctional Officer, Eastern Correctional Facility, Jane Doe, Sergeant, Eastern Correctional Facility, Earnel Bodison, Correctional Counselor, Shawangunk Correctional Facility, Brian Fischer, Commissioner of Corrections, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

720 F.3d 142

Michael JONES, Plaintiff–Appellant,

v.Joseph SMITH, Superintendent, Shawangunk Correctional Facility, John Maly, Superintendent, Shawangunk Correctional Facility, Pedro Diaz, Regional Health Service Administration, Lt. Gardner, Lieutenant, Shawangunk Correctional Facility, John Rapp, Food Service Administration, Shawangunk Correctional Facility, Maryann Genovese, MD, Shawangunk Correctional Facility, Catherine Wells, Administrative Nurse, Shawangunk Correctional Facility, Rabbi A. Hirowitz, Rabbi, Shawangunk Correctional Facility, Palen, Lieutenant, Shawangunk Correctional Facility, Brooks, Correctional Officer, Shawangunk Correctional Facility, Kimbler, Sergeant, Shawangunk Correctional Facility, William Brown, Superintendent, Eastern Correctional Facility, Thomas Griffin, Dept. Superintendent, Eastern Correctional Facility, Mikhail Gusman, MD, Eastern Correctional Facility, Olga Khramova, Nurse, Eastern Correctional Facility, Louis Pingotti, Captain, Eastern Correctional Facility, Steven Schoonmaker, Correctional Officer, Eastern Correctional Facility, Jane Doe, Sergeant, Eastern Correctional Facility, Earnel Bodison, Correctional Counselor, Shawangunk Correctional Facility, Brian Fischer, Commissioner of Corrections, Defendants–Appellees.

Docket No. 12–401–pr.

United States Court of Appeals,

Second Circuit.

Argued April 9, 2013.

Decided June 19, 2013.

Gabrielle Glemann (Vilia B. Hayes and Marc B. Weinstein, on the brief), Hughes, Hubbard & Reed LLP, New York, NY, for Plaintiff–Appellant.

Kate H. Nepveu, Assistant Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, for Defendants–Appellees.

Before: LEVAL, KATZMANN, and HALL, Circuit Judges.

KATZMANN, Circuit Judge:

Plaintiff–Appellant Michael Jones, an inmate in the New York correctional system, appeals from a judgment of the United States District Court for the Northern District of New York (Sharpe, C.J.). The district court denied Jones's motion to proceed in forma pauperis and entered a conditional order dismissing Jones's civil rights complaint if he failed to pay the required filing fee. This appeal raises an issue of first impression in our circuit concerning the interpretation of the so-called three strikes provision of the Prison Litigation Reform Act (“PLRA”). The three strikes provision bars prisoners from bringing a “civil action” or “ appeal[ing] a judgment in a civil action ... [ in forma pauperis ] if the prisoner” has, while in prison, filed three prior “action[s] or appeals” in federal court that were dismissed “on the grounds that [they] were frivolous, malicious, or failed to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g).

Jones filed a lawsuit under 42 U.S.C. § 1983 alleging that Defendants–Appellees, a number of prison officials, violated his Eighth Amendment rights. Jones moved for leave to proceed in forma pauperis, but the district court denied the motion on the ground that he had five strikes. The district court found that Jones had accumulated three of these strikes while he was litigating a prior petition for habeas corpus relief. Jones contends, inter alia, that dismissals of habeas petitions and dismissals of appeals in habeas proceedings—at least where the habeas petitions do not raise claims challenging prison conditions—cannot constitute strikes. We agree and, therefore, reverse the district court.

BACKGROUND

In September of 2009, Jones filed the instant lawsuit against officials at the Shawangunk Correctional Facility in New York, alleging that the defendants had unconstitutionally denied him treatment for medical conditions, access to medical supplies, and accommodation of his religious practices. As a pro se litigant, Jones also moved to proceed in forma pauperis (“IFP”). Although the district court initially granted IFP status, the defendants moved that the status should be revoked because Jones had at least three prior strikes under the PLRA arising from multiple dismissals in two prior cases— Jones v. Coughlin, No. 93–CV–7341 (S.D.N.Y.), and Jones v. Herbert, No. 1:02–CV–4075 (S.D.N.Y.).

In Coughlin, Jones had asserted a claim under § 1983 alleging that the prison deprived him of reasonable access to the courts by failing to timely deliver legal documents related to his motion to vacate his conviction. The district court dismissed the complaint, finding that it failed to state a cognizable claim.¹ This court then denied Jones's motion to proceed IFP and dismissed his appeal.

In Herbert, Jones had filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that his New York State criminal conviction be vacated by reason of the New York Appellate Division's failure to decide his appeal for nineteen years. The district court dismissed the habeas petition, concluding that Jones had not made a substantial showing of the denial of a constitutional right. The court also stated that any appeal would not be taken in good faith. Jones nevertheless appealed the decision and moved for IFP status. This court denied IFP status and dismissed the appeal. Jones then moved in the district court to vacate the judgment under Federal Rule of Civil Procedure 60(b). The district court denied the motion, and Jones again appealed. This court again dismissed his appeal, holding that Jones failed to show that “jurists of reason would find it debatable whether the underlying habeas petition ... state[d] a valid claim for the denial of a constitutional right.” J. App'x at 95.

In the present case, the district court found that five of the dismissals in these two prior cases constituted strikes under the PLRA—(1) the district court's dismissal of Coughlin; (2) the dismissal of the appeal in Coughlin; (3) the district court's dismissal of the habeas petition in Herbert; (4) the dismissal of the initial appeal in Herbert; and (5) the dismissal of the appeal on Jones's Rule 60(b) motion. See Jones v. Smith, No. 09–CV–1058, 2011 WL 7073689, at *3–7 (N.D.N.Y. Dec. 6, 2011), report and recommendation adopted by2012 WL 177971 (N.D.N.Y. Jan. 23, 2012). In doing so, the district court rejected Jones's argument that dismissals in habeas proceedings cannot count as strikes. Although the court acknowledged that a habeas petition is not a “civil action” (and that a habeas petitioner can therefore proceed IFP even if he or she has three prior strikes), it reasoned that the statute uses “significantly broader language” to define the types of dismissals that can constitute strikes. Id. at *6. Specifically, the court explained that a strike can be based on the dismissal of any “action or appeal[ ],” and that this phrase, unlike a phrase earlier in the three strikes provision, was not explicitly modified by the word “civil.” ²Id. The district court also concluded that, even if the dismissal of a prior habeas petition could not count as a strike, the dismissal of an appeal would still be a strike because the district court had warned Jones that any appeal would not be in good faith. Id. at *7.

Because the court found that Jones had accumulated at least three strikes, it withdrew Jones's IFP status and entered a conditional order requiring Jones to pay the necessary filing fee or face dismissal of his complaint. Jones timely appealed, and we stayed the conditional order of dismissal pending appeal. We also ordered appointment of counsel to assist Jones in presenting this issue of first impression.

DISCUSSION

We review de novo a district court's conclusion that a prisoner is barred from proceeding IFP by the PLRA's three strikes provision. Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir.2007).

In full, the three strikes provision dictates that:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [ in forma pauperis ] 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.

28 U.S.C. § 1915(g). We have previously held that a habeas petition seeking to overturn a criminal conviction or sentence was not a “civil action” for purposes of the PLRA and, therefore, that prisoners filing such habeas claims were not subject to the special fee requirements of the PLRA.³Reyes v. Keane, 90 F.3d 676, 678 (2d Cir.1996), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

We reasoned that “the application of the PLRA ... depends” at least in part on “the nature of the relief sought” and whether the claim is analogous to the types of traditional civil suits that Congress was concerned about when it enacted the PLRA. Id. (citing In re Nagy, 89 F.3d 115, 117 (2d Cir.1996)). According to our reading of the legislative history, “Congress did not intend the PLRA to apply to [such] petitions for a writ of habeas corpus,” but, instead, “aimed [the legislation] primarily at prisoners' suits [under § 1983] challenging prison conditions.” Id. Therefore, we “h[e]ld that the PLRA d[id] not apply to the petitioner's habeas corpus petition [attacking his criminal conviction] or to an appeal from the denial of such a petition.” Id. We also emphasized that Congress had already given “specific attention to perceived abuses in the filing of [such] habeas corpus petitions by [separately] enacting” the Antiterrorism and Effective Death Penalty Act (“AEDPA”) around the same time. Id. In sum, there was simply no indication that the PLRA was intended to cover habeas petitions filed pursuant to 28 U.S.C. §§ 2254 or 2255. See id.

In light of this clear precedent, the defendants concede (as they must) that such a habeas petition is not a “civil action” under the three strikes provision and, as such, that a court...