Mitchell v. Federal Bureau of Prisons

• Decision Date: 20 November 2009
• Docket Number: No. 05-5420.,05-5420.
• Citation: 587 F.3d 415
• Parties: Ronald MITCHELL, Appellant v. FEDERAL BUREAU OF PRISONS, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

587 F.3d 415

Ronald MITCHELL, Appellant v. FEDERAL BUREAU OF PRISONS, Appellee.

No. 05-5420.

United States Court of Appeals, District of Columbia Circuit.

Argued October 5, 2009.

Decided November 20, 2009.

Appeal from the United States District Court for the District of Columbia (No. 05cv00512).

Sara Kaiser, Student Counsel, argued the cause as amicus curiae in support of appellant. With her on the briefs were Steven H. Goldblatt, appointed by the court, Cecily Baskir and Charlotte Garden, Supervisory Attorneys, and James E. Burke, Tony Diab and Prashina Gagoomal, Student Counsel.

Ronald Mitchell, pro se, filed briefs.

Harry B. Roback, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney.

Before: TATEL and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Challenging the conditions of his incarceration, and having been denied in forma pauperis (IFP) status by the district court, appellant now seeks to proceed IFP on appeal. Although appellant has only two "strikes" and thus faces no Prison Litigation Reform Act (PLRA) bar to IFP status, we find that he qualifies as an abusive filer under Butler v. Department of Justice, 492 F.3d 440 (D.C.Cir.2007), in which we denied IFP status to a prisoner who, though not technically barred by the PLRA, had nonetheless abused the privilege. Also, even though we now recognize an exception under Butler for prisoners who face imminent danger of serious physical injury, appellant's allegations are insufficient to qualify for that exception. We therefore deny his motion for IFP status on appeal.

I.

Ronald Mitchell is a twice-convicted bank robber currently serving a fifteen-year sentence in the custody of the Bureau of Prisons (BOP). Over the course of his tenure in the prison system, he has been incarcerated in several different penitentiaries and has filed at least sixty-five unsuccessful lawsuits and appeals in the federal courts, virtually all of which challenged the legality of his conviction and the conditions of his confinement. This is one of those cases.

Proceeding under the Privacy Act, 5 U.S.C. § 552a, Mitchell filed a complaint in federal court in March 2005, alleging that his prison files omitted a required notation regarding his need for protective custody. He claimed that because of this omission, he was improperly transferred to USP Florence, a high-security prison in Colorado—his first stay at a high-security facility. According to Mitchell, even though BOP knew he had testified for the government against his co-defendants and that USP Florence is "known for murders and assaults on ... anyone who has been known as a snitch," it transferred him there so that he would be "murdered" by fellow prisoners. Compl. 3-4. In his request for relief, Mitchell also asserted that he "need[s] medical treatment for Hepatitis B & C which is incurable and administered to plaintiff at USP Florence." Compl. 8. He sought transfer to protective custody, medical treatment, and damages.

Mitchell filed a motion to proceed IFP in the district court. The district court, finding that Mitchell had three "strikes" within the meaning of the PLRA, 28 U.S.C. § 1915(g), denied the motion and later dismissed the complaint for failure to pay the filing fee.

Challenging the district court's denial of IFP status, Mitchell now seeks to proceed IFP on appeal. His appellate IFP motion has a long history in this court that we need not recount here. Suffice it to say that in January 2009, we appointed the Georgetown University Law Center Appellate Litigation Clinic as amicus curiae to support Mitchell's position.

II.

The PLRA prohibits a prisoner who has accumulated three or more "strikes" from proceeding IFP in any civil action or appeal in federal court. 28 U.S.C. § 1915(g). A strike is a civil "action or appeal [brought] in a court of the United States" by the prisoner while incarcerated "that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." Id. Amicus argues that Mitchell has only two strikes. BOP contends he has at least three.

Having thoroughly reviewed Mitchell's litigation history, we agree with amicus. Mitchell has two strikes, both complaints dismissed for failure to state a claim. See Mitchell v. Dep't of Justice, No. 1:06-cv-107 (N.D.W.Va. Nov. 11, 2006); Mitchell v. Hawk-Sawyer, No. 6:01-cv-3324 (W.D.Mo. July 19, 2001). None of the other sixty-three cases qualifies as a strike. They were either (1) dismissed or disposed of, at least in part, for reasons other than being "frivolous, malicious, or fail[ing] to state a claim upon which relief may be granted," see Thompson v. Drug Enforcement Admin., 492 F.3d 428, 437 (D.C.Cir.2007) (holding that the only cases that count as strikes are those identified in the statute), (2) habeas petitions, see Blair-Bey v. Quick, 151 F.3d 1036, 1039 (D.C.Cir.1998) (holding that habeas cases are not strikes), or (3) appellate affirmances of district court dismissals rather than dismissals of appeals, see Thompson, 492 F.3d at 436 (holding that the PLRA "speaks only of dismissals, not affirmances"). Accordingly, the PLRA does not prohibit Mitchell from proceeding IFP.

This, however, does not end our analysis. The government argues that we should nonetheless deny Mitchell IFP status as a discretionary matter under Butler, where we held that courts have authority to deny IFP status to prisoners who abuse the privilege but who are not technically barred by the PLRA. 492 F.3d at 445.

We believe the best solution to [the problem of abusive filers] lies in exercising our discretionary authority to deny IFP status to prisoners who have abused the privilege. Our ability to do so derives from both the PLRA itself, and our more general supervisory authority to manage our docket so as to promote[] the interests of justice.

Id. at 444-45 (alteration in original) (internal quotation marks and citation omitted). According to the government, the "number, frequency, content, and disposition" of Mitchell's sixty-five federal cases "reflect an unmistakable pattern of abuse." Appellee's Br. 24.

Amicus argues that in determining whether to invoke Butler we should consider only some of these sixty-five cases. Specifically, insisting that the Butler rule is designed to prevent abuse of this court's processes, amicus asks that we look only to the three cases Mitchell has filed in the D.C. Circuit. We disagree. In Butler itself we considered cases the prisoner had filed not just in this court, but also in our district court and in the District Court of Maryland. 492 F.3d at 446-47 & n. 8 & 9; see also Hurt v. Soc. Sec. Admin., 544 F.3d 308, 309 (D.C.Cir.2008) (referring to cases filed in the district courts as part of the evidence of Hurt's litigation history). Even in In re Sindram, 498 U.S. 177, 111 S.Ct. 596, 112 L.Ed.2d 599 (1991), on which amicus relies, the Supreme Court denied IFP status in part because the petitioner had raised the same issue "in five different state and federal courts on 27 prior occasions." Id. at 179, 111 S.Ct. 596. Moreover, the PLRA itself directs courts to consider cases filed "in a court of the United States," 28 U.S.C. § 1915(g), and we see no reason to consider a smaller set of cases when exercising our Butler discretion. The point is this: we deny IFP status to prisoners who have abused the privilege, and it would make no sense to disregard evidence that a prisoner who has yet to abuse the privilege here has blatantly abused it elsewhere.

Offering a second reason for considering fewer than all sixty-five cases, amicus points out that during the proceedings leading up to this appeal, the government had identified only twelve cases, but that in its appellate brief it listed a total of sixty-three (not including the district court or appellate stages of the instant case). According to amicus, because the government had "multiple opportunities to identify the cases on which it wishes to rely," we should limit our evaluation of Mitchell's IFP eligibility to the twelve previously identified cases. Amicus Curiae Reply Br. 6. Again, we disagree. Evaluating a prisoner's entitlement to IFP status is not a traditional adversarial proceeding where we serve as an "arbiter[] of legal questions presented and argued by the parties" and decline to consider arguments raised too late in order to prevent unfairness. McBride v. Merrell Dow & Pharma., Inc., 800 F.2d 1208, 1211 (D.C.Cir.1986) (internal quotation marks omitted). Rather, Butler calls on us to exercise our discretion to protect the federal courts from abusive filers, and proper exercise of that discretion requires that we act on the basis of as much information as we can obtain. Indeed, amicus could hardly object if we had uncovered the additional cases ourselves, as often happens in IFP proceedings.

At oral argument, amicus conceded that if we consider all sixty-five cases, Mitchell qualifies under Butler as an abusive filer. This time we agree. In determining whether to exercise our Butler discretion, we consider the "number, content, frequency, and disposition of the petitioner's previous filings." Butler, 492 F.3d at 445. Mitchell has filed sixty-five cases over fifteen years. All sought the same relief, and all were unsuccessful. Mitchell's record is comparable to those of others whose IFP status we have denied. See, e.g., Hurt, 544 F.3d at 309 (identifying "more than seventy appeals" in two years, all unsuccessful and many frivolous, such as one against the Declaration of Independence). Indeed, Mitchell's record—sixty-five cases over fifteen years—is even worse than Butler's, who in eight years had filed twenty-five unsuccessful cases raising the same legal issue. Butler, 492 F.3d at 446.

Again, however, this does not end our task. Amicus urges us to...