Patton v. Jefferson Correctional Center, 97-30547
| Decision Date | 13 March 1998 |
| Docket Number | No. 97-30547,97-30547 |
| Citation | 136 F.3d 458 |
| Parties | John W. PATTON, Plaintiff-Appellant, v. JEFFERSON CORRECTIONAL CENTER; Harry Lee, Sheriff of Jefferson Parish; Ernest V. Richards, IV, Judge, Division B; Karen Morgen, Assistant District Attorney; Pat Hand, III, Assistant District Attorney; and Susan D. Rushing, Lt. Detective, JPSO, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John W. Patton, Livingston, TX, pro se.
Daniel R. Martiny, Franz L. Zibilich, Lee, Martiny and Caracci, Metairie, LA, for Jefferson Correctional Center, Harry Lee, and Susan D. Rushing.
Sandra Ema Gutierrez, Dept. of Justice, Litigation Div., New Orleans, LA, for Ernest V. Richards, IV.
Terry Michael Boudreaux, Asst. Dist. Atty., Gretna, LA, for Karen Morgen, and Pat Hand, III.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before JONES and SMITH, Circuit Judges, and FITZWATER, District Judge. *
We decide in this appeal whether dismissal of a 42 U.S.C. § 1983 action as frivolous is a strike within the meaning of the "three strikes" provision of the Prison Litigation Reform Act of 1995 ("PLRA"), 28 U.S.C. § 1915(g), when the suit is also construed to allege a habeas claim and is in part dismissed without prejudice for failure to exhaust state court remedies. Because we hold that it is a countable strike, and because under this interpretation of § 1915(g) plaintiff had three strikes prior to filing this appeal, we conclude that he is precluded from appealing in forma pauperis ("IFP"), and we dismiss. 1
Plaintiff John W. Patton ("Patton"), Texas prisoner # 751103, brought this § 1983 action, alleging that his constitutional rights were violated when prison officials placed him in administrative segregation after they were advised that he had written a threatening letter. 2 Patton sued six defendants, including a sheriff, a state judge, two assistant district attorneys, and Susan D. Rushing ("Detective Rushing"), a detective employed by the Jefferson Parish Sheriff's Office. He maintained that Detective Rushing and another individual had fabricated the threatening correspondence for the purpose of interfering with child custody proceedings in which he was involved. According to Patton, he missed a court hearing because he had been placed in lockdown.
The district court dismissed Patton's claims against all defendants except Detective Rushing. The magistrate judge recommended that the action against the detective be administratively closed, without prejudice to reopening the case following Patton's release from Texas custody. The district judge adopted the recommendation, stayed the case against Detective Rushing, and administratively closed the action subject to Patton's right to reopen it within 30 days of his release. Patton appealed, and we vacated and remanded the indefinite stay order for reconsideration. Patton v. Jefferson Correction, 106 F.3d 397 (5th Cir.1997) (unpublished opinion) (per curiam). 3
Following remand, the district court revoked Patton's IFP status. The court concluded that because Patton had filed at least five actions that had been dismissed as frivolous, he was barred by § 1915(g) from proceeding IFP. The court held that Patton's complaint against Detective Rushing would be dismissed with prejudice unless Patton paid the appropriate filing fee within 30 days. Patton objected to the order and did not pay the fee. The district court overruled Patton's objections and dismissed his lawsuit for failure to prosecute. Patton later moved for leave to pay a partial filing fee and to continue his case in the district court IFP. The district court construed the motion as a notice of appeal and a motion to proceed IFP on appeal. Based on its prior decision revoking Patton's IFP status pursuant to the PLRA's "three strikes" provision, the court denied Patton's requests for leave to appeal IFP and to pay a partial filing fee.
Patton appeals the orders dismissing his action and denying him leave to appeal. He also moves for leave to appeal IFP and to appeal upon payment of a partial filing fee.
The PLRA contains a so-called "three strikes" provision, which states:
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.
28 U.S.C. § 1915(g). We must decide whether Patton already had three strikes against him prior to filing the instant appeal.
One of the necessary strikes is easily discernible from the record. In Patton v. New Orleans Police Dep't, Civil Action No. 93-3074 (E.D.La. Nov. 17, 1993), Patton alleged that he had been the victim of an armed robbery. He sued two New Orleans police officers pursuant to § 1983, alleging that they violated his rights by failing to arrest the perpetrators. At the time he filed suit, Patton was incarcerated in a county detention center in Texas. Patton contended that the robbers attempted to intimidate him by contacting one of the officers and advising him that Patton was on probation in Texas. The officer then contacted Texas officials, obtained a copy of an outstanding arrest warrant, and arrested Patton when he appeared at the police station. Patton was also told that he had no right to lodge a criminal complaint because of his probation and criminal record.
The district court dismissed the suit as frivolous pursuant to former § 1915(d) 4 because the decision whether to file criminal charges against an individual does not give rise to § 1983 liability and because Patton had not alleged a policy, pattern, or practice of such inaction on the part of New Orleans as a municipality. Patton did not appeal the dismissal, and it became a countable strike. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996) (). It is of no consequence that this strike (or, for that matter, the others that we address in this opinion) occurred prior to the effective date of the PLRA. See id. at 387 (); accord Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir.1997); Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d 143, 144 (3d Cir.1997) (per curiam)(collecting cases).
We next consider whether a § 1983 action that is in part dismissed as frivolous, and is in part construed as a habeas claim, which is dismissed without prejudice for failure to exhaust state court remedies, is a countable strike.
In Patton v. Mamoulides, Civil Action No. 94-3311-I (E.D.La. Nov. 16, 1994), Patton brought a § 1983 action against a district attorney and an assistant district attorney, alleging that they had denied him his constitutional right to a speedy trial. The district court 5 examined Patton's complaint sua sponte to ascertain whether it should be construed as a petition for habeas corpus. Because Patton was attacking the fact and length of his confinement, the court concluded that he was seeking both habeas and § 1983 relief. Based on its determination that Patton had not exhausted his state court remedies, the court concluded that his habeas claim should be dismissed without prejudice for failure to exhaust.
The court dismissed Patton's § 1983 claim as frivolous pursuant to former § 1915(d). Applying Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), as construed in Boyd v. Biggers, 31 F.3d 279 (5th Cir.1994) (per curiam), the court held that the action must be dismissed because defendants were entitled to absolute prosecutorial immunity. 6 "Plaintiff's § 1983 complaint against defendants is frivolous under the broadest reading [of his complaint] since the allegations clearly lack an arguable basis in law." (footnote and citation omitted). Patton did not appeal the dismissal.
In Patton v. Machado, No. SA-95-CV-672 (W.D.Tex.1995), aff'd, No. 95-50785, 82 F.3d 414 (5th Cir.1996)(unpublished opinion) (per curiam), Patton, at the time a Texas state prisoner, brought a § 1983 suit against a state judge and two assistant district attorneys. He had been convicted for cocaine possession, for which he received deferred adjudication. The State of Texas later moved to adjudicate Patton's guilt after he was convicted in Louisiana on a misdemeanor charge of stalking and telephone harassment. Following a hearing, the state court granted the motion.
While awaiting sentencing, Patton filed a § 1983 action in federal court, seeking only injunctive relief in the form of a stay of the criminal proceedings and the recusal of the state judge. In response to a questionnaire, Patton alleged that the state judge and prosecutors had conspired with non-parties to deprive him of his rights. He also complained that the judge had violated his rights by certain acts and omissions committed during or in connection with the adjudication proceeding, and that the assistant district attorneys had infringed his rights by several acts taken in prosecuting him.
The magistrate judge recommended dismissal of the claims against the state judge and prosecutors based on judicial and prosecutorial immunity, respectively. Relying on Heck, the magistrate judge concluded that Patton could not collaterally attack his conviction in a § 1983 action, and recommended that his request for injunctive relief be denied.
The magistrate judge also recommended that Patton be sanctioned for filing a frivolous suit. 7 Patton had previously filed three civil rights suits in that federal court,...
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