Lyon v. Vande Krol

• Decision Date: 09 September 1996
• Docket Number: Civil No. 4-96-cv-10356.
• Citation: 940 F.Supp. 1433
• Parties: Everett R. LYON, Plaintiff, v. Del VANDE KROL; Paul Hedgepeth; James Helling; Rabbi Jacobson; Chavbad Lubavitch of Iowa, Defendants.
• Court: U.S. District Court — Southern District of Iowa

940 F.Supp. 1433

Everett R. LYON, Plaintiff, v. Del VANDE KROL; Paul Hedgepeth; James Helling; Rabbi Jacobson; Chavbad Lubavitch of Iowa, Defendants.

Civil No. 4-96-cv-10356.

United States District Court, S.D. Iowa, Central Division.

September 9, 1996.

Philip P. Mears, Patrick E. Ingram, Mears Law Office, Iowa City, IA, for plaintiff.

William A. Hill, Assistant Attorney General of Iowa, Des Moines, IA, for defendants.

Frank W. Hunger, Assistant Attorney General, Christopher D. Hagen, Assistant U.S. Attorney, Des Moines, IA, Vincent M. Garvey, Deputy Director, Kathryn D. Ray, Trial Attorney, U.S. Department of Justice, Washington, DC, for Intervenor.

ORDER

LONGSTAFF, District Judge.

The court has before it for consideration plaintiff's motion to alter or amend judgment. The court certified to the United States Attorney General that plaintiff had drawn into question the constitutionality of the Prison Litigation Reform Act and granted time within which the United States could intervene. Defendants have resisted plaintiff's motion, and the United States has elected to intervene and has filed its brief. The motion is submitted.

Background

On April 26, 1996, the president signed into law the Prison Litigation Reform Act (PLRA), Pub.L. No. 104-134, § 801 et seq., 110 Stat. 1321 (1996). Section 804(d) of the PLRA created a new subsection, 28 U.S.C. § 1915(g):

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.

(Emphasis added.) The underlined phrase "under this section" refers to § 1915, the statute authorizing proceedings in forma pauperis (IFP). Therefore, § 1915(g) applies only to inmates who seek to qualify for IFP status to file their civil action or appeal.

On May 8, 1996, plaintiff Everett Lyon, an inmate of the Iowa State Penitentiary, attempted to bring an action pro se under 42 U.S.C. § 1983 claiming that he had recently been denied participation in Jewish services and other practices of the Jewish faith. Because Lyon had previously filed at least three civil actions that were dismissed as frivolous, and his complaint did not meet the "imminent danger of serious physical injury" standard, the court dismissed his complaint pursuant to the three-dismissal rule of 28 U.S.C. § 1915(g). The three actions previously dismissed as frivolous were dismissed prior to the enactment of the PLRA. Other inmates who filed similar claims prior to enactment of the PLRA were granted preliminary injunctive relief. See Shelton v. Halford, Civ. No. 4-96-cv-80336, Ruling on Plaintiff's Motion for Preliminary Injunction (May 22, 1996).

Because of the special issues raised by this case, the court appointed an attorney to represent plaintiff. Plaintiff then filed a motion to alter or amend the court's judgment, challenging the constitutionality of § 1915(g).

Retroactivity

Plaintiff contends § 1915(g) has an impermissible retroactive effect based on the nature and extent of the changes under the PLRA, and based on considerations of fair notice, reasonable reliance, and settled expectations. Plaintiff argues he had no notice that his earlier dismissals would affect his later ability to proceed IFP, the PLRA failed to protect his reasonable reliance and expectation based on years of prison litigation that he would be able to file future actions IFP, and the change in the law substantially affected his ability to seek redress in the courts.

To determine the applicability of the new federal statute, the court first must decide whether Congress "expressly prescribed the statute's proper reach." Landgraf v. USI Film Prods., 511 U.S. 244, ___, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994). If Congress did so in the statute, that clearly expressed statement governs. If the statute is unclear, the court must determine whether the statute operates retroactively, that is, "whether it [] impair[s] rights a party possessed when he acted, increase[s] a party's liability for past conduct, or impose[s] new duties with respect to transactions already completed." Id. If it does, the traditional presumption is against retroactive application of the law "absent clear congressional intent favoring such a result." Id.

This court agrees with the analysis in Green v. Nottingham, 90 F.3d 415, 419 (10th Cir.1996), that although the language of § 1915(g) suggests Congress meant for § 1915(g) to apply to dismissals that occurred before the Act, neither the language of § 1915(g) nor other provisions in the Act expressly dictate the reach of § 1915(g). The court therefore must consider whether § 1915(g) operates retroactively.

As the Court explained in Landgraf, A statute does not operate "retrospectively" merely because it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.

Landgraf, 511 U.S. at ___, 114 S.Ct. at 1499 (citations and footnote omitted). Guiding the court in this process are the "considerations of fair notice, reasonable reliance, and settled expectations." Id.

In Green, the Tenth Circuit considered the Landgraf decision in determining the applicability of § 1915(g) to dismissals that occurred before the enactment of the PLRA. It held that § 1915(g) is a procedural rule that "imposes stricter requirements for proceeding in forma pauperis in future actions on those prisoners who have shown a propensity toward filing meritless lawsuits in the past." Green, 90 F.3d at 420. The court held § 1915(g) does not alter the merits of a prisoner's action or the legal consequences of the previously dismissed actions. Id. Based on the plain language of § 1915(g) and its procedural nature, the court concluded § 1915(g) required it "to consider prisoner suits dismissed prior to the statute's enactment." Id.

This court finds the Tenth Circuit's analysis in Green persuasive. In addition, § 1915(g) does not impair any rights a prisoner had before the law's enactment because IFP status under the former version of the law was available at a judge's discretion. See Treff v. Galetka, 74 F.3d 191, 197 (10th Cir. 1996) (IFP status is a privilege, not a right). Finally, § 1915(g) does not require a prisoner to perform "new duties with respect to transactions already completed." Landgraf, 511 U.S. at ___, 114 S.Ct. at 1505. For all these reasons, the court concludes § 1915(g) does not operate retroactively simply because dismissals entered before the enactment of the PLRA are considered in applying § 1915(g).

Statutory Interpretation

Plaintiff also argues that because the application of the three-dismissal rule raises significant due process concerns, and Congress did not expressly make the provision applicable to pending cases, this court should decline to give the statute that interpretation. The court, however, did not apply the PLRA to a pending case. Plaintiff's case was filed after the date of enactment.

Equal Protection

Plaintiff argues that § 1915(g) violates the equal protection guarantee of the Fifth Amendment.¹ Although the Fifth Amendment contains no Equal Protection Clause, "the Fifth Amendment's Due Process Clause prohibits the Federal Government from engaging in discrimination that is `so unjustifiable as to be violative of due process.'" Schlesinger v. Ballard, 419 U.S. 498, 500 n. 3, 95 S.Ct. 572, 574 n. 3, 42 L.Ed.2d 610 (1975) (quoting Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954)).

The three-dismissal provision in § 1915(g) expressly applies to the class of inmates who have had three or more civil actions or appeals dismissed as frivolous and who seek to proceed IFP on claims not involving the imminent danger of serious physical injury. This section of the PLRA treats this class of indigent inmates differently from the similarly situated class of prisoners with three frivolous dismissals who do not seek to proceed IFP.

Under equal protection analysis, "if a law neither burdens a fundamental right nor targets a suspect class, [the court] will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Romer v. Evans, ___ U.S. ___, ___, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996).

Fundamental Right. Plaintiff argues that the PLRA directly and substantially burdens inmates' "fundamental constitutional right of access to the courts." See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). The Court in Bounds described the right of access to the courts as "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Id. at 825, 97 S.Ct. at 1496; see also Lewis v. Casey, ___ U.S. ___, ___, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996). The Supreme Court emphasized that habeas petitions and civil rights actions are fundamentally important because they directly protect our most valued rights. See Bounds, 430 U.S. at 827, 97 S.Ct. at 1497-98; see also Schrier v. Halford, 60 F.3d 1309, 1311 (8th Cir.1995). The Eighth Circuit has recognized that prisoners' right of access to the courts may stem from both the First Amendment right to petition and the due process and equal protection rights under the Fifth and ...