Pettus v. Morgenthau

• Citation: 554 F.3d 293
• Decision Date: 28 January 2009
• Docket Number: Docket No. 07-0395-pr.
• Parties: James PETTUS, Plaintiff-Appellant, v. Robert MORGENTHAU, Charles Hynes, People of the City and State of New York, Randolph Clark, A.D.A. Frank Dubis, Glen Goord, Theresa Knapp, Ann and Any John Does, Donald Selsky, Capt. Richards, Lt. McGeever, Capt. Wenderlich, James Esgrow, Kenneth McLaughlin, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

554 F.3d 293

James PETTUS, Plaintiff-Appellant, v. Robert MORGENTHAU, Charles Hynes, People of the City and State of New York, Randolph Clark, A.D.A. Frank Dubis, Glen Goord, Theresa Knapp, Ann and Any John Does, Donald Selsky, Capt. Richards, Lt. McGeever, Capt. Wenderlich, James Esgrow, Kenneth McLaughlin, Defendants-Appellees.

Docket No. 07-0395-pr.

United States Court of Appeals, Second Circuit.

Argued: June 3, 2008.

Decided: January 28, 2009.

Wanda D. Brown,^* Jonathan D. Henry^* (Jon Romberg, Esq., of counsel), Newark, N.J., for Amicus Curiae Seton Hall University School of Law Center for Social Justice in Support of Plaintiff-Appellant.

Martin A. Hotvet, Assistant Solicitor General (Andrea Oser, Deputy Solicitor General, Barbara D. Underwood, Solicitor General, on the brief), Albany, N.Y., for Amicus Curiae Andrew M. Cuomo, Attorney General of the State of New York, in Support of Defendants-Appellees.

Before: McLAUGHLIN, LIVINGSTON, Circuit Judges, and GERSHON, District Judge.^**

LIVINGSTON, Circuit Judge:

Plaintiff-appellant James Pettus is a prisoner in New York State, where he is serving a sentence of six to twelve years for grand larceny in the third degree, welfare fraud in the third degree, offering a false instrument for filing in the first degree, and forgery in the second degree. He is also a frequent litigant in this Circuit, who appears on this Court's docket sheet as an appellant, movant, or petitioner in over sixty matters and in countless matters before the district courts. See, e.g., Pettus v. Brown, No. 9:06-cv-152, 2007 WL 1791220, at *2-3 (N.D.N.Y. June 19, 2007) (collecting cases); Pettus v. Goord, No. 9:04-cv-0253 (LEK/RFT), 2006 WL 2806551, at *1 n. 1 (N.D.N.Y Sept. 28, 2006) (same); Pettus v. Horn, No. 04 Civ. 459(WHP), 2005 WL 2296561, at *1 n. 1 (S.D.N.Y. Sept.21, 2005) (same). Because three or more of his lawsuits while he has been detained have been dismissed as "frivolous [or] malicious or [for] fail[ure] to state a claim upon which relief may be granted," Pettus is ineligible by statute to file in forma pauperis ("IFP") "unless [he] is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

Pettus filed this suit in the United States District Court for the Western District of New York, asserting two principal claims: (1) that the People of the City and State of New York and the judges and district attorneys involved in his criminal trial did not follow proper procedures and sentenced him harshly, irrationally, without evidence, and out of racial animus; and (2) that various New York State Department of Correctional Services ("DOCS") employees who were involved with adjudicating alleged disciplinary infractions lodged against him at the Elmira Correctional Facility or who transferred him from Elmira to the Southport Correctional Facility, a so-called supermax facility for especially violent offenders, were biased and incorrectly classified him. Pettus's complaint also alleges that at Southport he has been surrounded by hostile, aggressive, violent inmates who beat, rob, assault, extort, and sexually abuse him, and that he has been denied access to needed medication. However, the complaint does not seek any relief specifically related to the abusive conditions Pettus allegedly is enduring at Southport. Pettus does not appear to name anyone at Southport as a defendant, instead naming defendants, with one possible exception, involved in his original criminal trial or in the subsequent disciplinary proceedings brought against him at Elmira.

The district court (Arcara, C.J.) held that Pettus did not qualify for § 1915(g)'s "imminent danger" exception permitting so-called three-strike litigants to proceed IFP because there was no nexus between the claims Pettus sought to pursue in this action and the imminent danger of serious physical injury alleged in his complaint. Pettus appealed, and we appointed amicus curiae counsel to argue in support of his position. The Attorney General of the State of New York submitted a letter brief, as amicus curiae, on behalf of the various named defendants (who were not served before the complaint was dismissed). We agree with the district court that § 1915(g) allows a three-strikes litigant to proceed IFP only when there exists an adequate nexus between the claims he seeks to pursue and the imminent danger he alleges. For the following reasons, we conclude that such a nexus exists when the three-strikes litigant seeks to redress an imminent danger of serious physical injury that is fairly traceable to a violation of law that the complaint asserts.

* * *

We begin, as we must, with the plain text of the Prison Litigation Reform Act ("PLRA"). United States v. Gayle, 342 F.3d 89, 92 (2d Cir.2003) ("Statutory construction begins with the plain text and, if that text is unambiguous, it usually ends there as well."). Prisoners who do not have the financial resources to prepay docketing fees may proceed IFP. See 28 U.S.C. § 1915(a)-(b). However, the PLRA contains a "three-strikes" rule that bars prisoners from proceeding IFP if they have a history of filing frivolous or malicious lawsuits unless the exception for imminent danger applies. The statute reads 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.

28 U.S.C. § 1915(g). This Court has previously held that for a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint — in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed. Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir.2001) (en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir.1999); Banos v. O'Guin, 144 F.3d 883, 884-85 (5th Cir.1998) (per curiam); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.1998) (per curiam). But we have not previously addressed the question whether there must exist some nexus between the danger the petitioner alleges and the claims he asserts.

The amicus supporting Pettus argues that, by its terms, § 1915(g)'s "imminent danger" exception imposes no nexus requirement. In its view, as long as the prisoner claims to be under imminent danger of serious physical injury, he can proceed IFP on any claim. We disagree. This position disregards our duty to consider the text and the context of the statute. The amicus essentially is asking us to construe the exception clause verbatim ac litteratim, ignoring the exception's place in the overall statutory framework. But when construing the plain text of a statutory enactment, we do not construe each phrase literally or in isolation. Rather, we attempt to ascertain how a reasonable reader would understand the statutory text, considered as a whole. See Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ("The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."); County of Nassau v. Leavitt, 524 F.3d 408, 414 (2d Cir.2008) ("Statutory construction is a holistic endeavor. In interpreting statutes, this Court reads statutory language in light of the surrounding language and framework of the statute." (quoting Field Day, LLC v. County of Suffolk, 463 F.3d 167, 177 (2d Cir.2006)) (internal quotation marks omitted)); Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir.2003) ("The text's plain meaning can best be understood by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute.").

As we have previously noted, "Congress adopted the Prison Litigation Reform Act with the principal purpose of deterring frivolous prisoner lawsuits and appeals." Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.1997). Once three of an indigent prisoner's lawsuits have been dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, the prisoner must pay the standard filing fee if he wishes to file additional lawsuits. In the context of this statutory scheme, the imminent danger exception is designed to provide "a safety valve for the `three strikes' rule." Malik, 293 F.3d at 563 (emphasis added) (quoting Abdul-Akbar, 239 F.3d at 315) (internal quotation marks omitted). Its unmistakable purpose is to permit an indigent three-strikes prisoner to proceed IFP in order to obtain a judicial remedy for an imminent danger. Under the amicus's proposed reading of the statute, however, an indigent prisoner with a history of filing frivolous complaints could, by merely alleging an imminent danger, file an unlimited number of lawsuits, paying no filing fee, for anything from breach of a consumer warranty to antitrust conspiracy. No reasonable reader would understand the self-evidently narrow "imminent danger" exception to sweep so broadly. Congress, after all, does not "hide elephants in mouseholes." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001).

Instead, we adopt the view of the district court that there must be a nexus between the imminent danger a three-strikes prisoner alleges to obtain IFP status and the legal claims asserted in his complaint. We thus confront the question of what this nexus might be. Cf. United States v. Santos, 541 F.3d 63, 69 (2d Cir. 2008) (observing, with regard to a different statute, that a ...