Ibrahim v. District of Columbia , 208 F.3d 1032 ( 2000 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 7, 2000 Decided April 14, 2000
No. 96-7069
In re: Jibril L. Ibrahim a/k/a Grant Anderson,
Appellant
v.
District of Columbia and
The Board of Trustees of the University of the District of
Columbia,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 94cv02687)
(No. 95cv02367)
(No. 95ms00321)
---------
No. 96-7070
In re: Grant Anderson
Appellant
v.
District of Columbia and
District of Columbia Court of Appeals,
Appellees
Consolidated with
96-7272
Appeals from the United States District Court
for the District of Columbia
(No. 94cv02687)
---------
No. 97-5041
In re: Johnny Ray Chandler
Appellant
v.
District of Columbia Department of Corrections, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 95cv02367)
Stephen J. Kane, Student Counsel, argued the cause as
amicus curiae on the side of appellant Johnny Ray Chandler
in No.97-5041. With him on the briefs was Steven H. Gold-
blatt, amicus curiae, appointed by the court.
Rebecca L. Spiro, Student Counsel, argued the cause as
amicus curiae on the side of appellant Jibril L. Ibrahim, a/k/a
Grant Anderson in the remaining cases. With her on the
briefs were Steven H. Goldblatt, amicus curiae, appointed by
the court, and Lisa M. Porcari, Supervising Attorney.
Carl J. Schifferle, Assistant Corporation Counsel, argued
the causes for appellees. With him on the briefs were Robert
R. Rigsby, Acting Corporation Counsel, and Charles L. Reis-
chel, Deputy Corporation Counsel. Eric H. Holder, Jr., U.S.
Attorney at the time the briefs were filed, R. Craig Lawrence,
and Rudolph Contreras, Assistant U.S. Attorneys, and Mary
L. Wilson, Assistant Corporation Counsel, entered appear-
ances.
Before: Ginsburg, Sentelle and Henderson, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Jibril Ibrahim, nE Grant
Anderson, asks us to resolve two questions regarding the
application of the fee provisions of 28 U.S.C. s 1915, as
amended by the Prison Litigation Reform Act, to events that
occurred prior to the effective date of that Act. Because the
appeal of Johnny Ray Chandler raises the second question as
well, we decide his case along with that of Mr. Ibrahim.
First, we consider whether the Prison Litigation Reform
Act applies to a notice of appeal filed before the effective date
of the Act but held in abeyance until after that date pending
the district court's disposition of post-judgment motions.
Second, we determine whether civil actions or appeals dis-
missed as frivolous, malicious, or for failure to state a claim
upon which relief can be granted, prior to the effective date of
the Act, are to be counted in determining whether a prisoner
has three "strikes"--as in "three strikes and you're out"--and
therefore may no longer prosecute a claim in forma pauperis.
We conclude that Mr. Ibrahim's notices of appeal were not
"filed" until the district court decided his post-judgment
motions after the effective date of the Act. We further hold,
as has every other circuit to have considered the matter, that
an action dismissed for one of the reasons listed above prior
to the effective date of the Act counts as a strike. Finally, we
grant Messrs. Ibrahim and Chandler 30 days, grace in which
to pay the filing fee.
I. Background
On April 26, 1996 the Congress amended 28 U.S.C. s 1915
as part of the Prison Litigation Reform Act of 1995 (PLRA),
which was Title VIII of the Omnibus Consolidated Rescis-
sions and Appropriations Act of 1996, Pub. L. No. 104-134,
s 804, 110 Stat. 1321-66, 1321-73 (1996). Whereas before the
amendment an indigent prisoner could file a civil action in
federal court without having to pay a filing fee, 28 U.S.C.
s 1915(a) (1994), s 1915 now requires that he pay the filing
fee, but allows him to do so in installments. See id.s 1915(b)(1), (2) (Supp. II 1996). An indigent prisoner may
not, however, bring a civil action or appeal a judgment in
forma pauperis, and thereby avail himself of the installment
plan, if he has
on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal ...
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 dan-
ger of serious physical injury.
28 U.S.C. s 1915(g).
Mr. Chandler does not dispute that he filed at least three
actions that were dismissed as frivolous or malicious, or for
failure to state a claim, prior to the effective date of the
PLRA. See Chandler v. District of Columbia Department of
Corrections, No. 95-2366, slip op. at 2-6 (D.D.C. March 11,
1996) (recounting numerous dismissals of complaints filed by
Chandler). Mr. Chandler's present appeal arises out of the
district court's dismissal of a complaint he filed on December
26, 1995, in which he alleged that a District of Columbia
corrections officer violated his civil rights by placing him in a
segregated cell and questioning him without first giving him a
Miranda warning. Mr. Chandler named numerous defen-
dants in his complaint, including the corrections officer; the
district dismissed his claim as to the officer on January 28,
1997, and Mr. Chandler timely filed an appeal from the order
of the district court.
As for Mr. Ibrahim, he has long been recognized as a
"prolific filer" in this and other courts; his complaints were
so "profuse and meritless" that in 1995 the district court
enjoined him from filing any further complaint without first
obtaining leave of court. See Anderson v. District of Colum-
bia Public Defender Service, 881 F. Supp. 663, 669-71 (D.D.C.
1995) (noting Ibrahim had filed five claims dismissed as
frivolous). In 1996 the district court denied Mr. Ibrahim
leave to file two civil complaints against the District of
Columbia. In March 1996, shortly before enactment of the
PLRA, Mr. Ibrahim filed notices of appeal in the district
court. Several days later he filed a Motion for Clarification
in one of the cases (No. 95-MS-321), asking the district court
to consider the merits of his complaint once more. In the
other case (No. 994-CV-2687) Mr. Ibrahim filed several post-
judgment motions, including a Motion to Vacate the Judg-
ment, a Motion for Reconsideration and Motion to Make
Findings of Fact and Law, and a Motion for Leave to File a
Supplemental Complaint. The last of these he filed after the
effective date of the PLRA.
We held the appeals in both of Mr. Ibrahim's cases in
abeyance until the district court denied all his post-judgment
motions in December 1996. Mr. Ibrahim then appealed the
denial of his post-judgment motions and filed another notice
of appeal in No. 94-CV-2687, which we construe as an
amendment of his first appeal in that case. See Fed. R. App.
P. 4(a)(4)(B). We set his cases for argument along with Mr.
Chandler's and appointed an amicus curiae to present argu-
ments on behalf of both appellants.
II. Analysis
In order to determine whether Mr. Ibrahim's appeals are
subject to the PLRA, we must first ascertain when Mr.
Ibrahim's notices of appeal were "filed" for the purposes of
s 1915. If they were not "filed" until after the effective date
of the PLRA, then we must consider whether Mr. Ibrahim's
pre-PLRA dismissals, as well as those of Mr. Chandler, count
as "strikes" under s 1915(g).
A. When an Appeal Is Deemed "Filed"
Under Federal Rule of Appellate Procedure 4(a)(4), while
certain post-judgment motions are pending in the district
court, a notice of appeal is "ineffective to appeal from the
judgment or order, or part thereof, specified in the notice of
appeal, until the entry of the order disposing of the last such
motion outstanding."* The advisory committee's notes con-
cerning the 1993 amendments to Rule 4 state that a prema-
ture appeal is "suspended" pending the resolution of a post-
judgment motion. Therefore, according to the amicus, the
advisory committee must have intended that an appeal be
deemed filed when it is first submitted; a post-judgment
motion simply puts the appeal in suspense until the proper
time for the court to consider it. This conclusion is sup-
ported, the amicus contends, by Federal Rule of Appellate
Procedure 3(e), which requires the appellant to pay the filing
fee when the appeal is first filed. Because Rule 3(e) does not
mention the possibility of payment being delayed pending the
district court's resolution of a post-judgment motion, the
argument goes, the appeal should be considered "filed" when
the filing fee is paid--that is to say, when the appeal is first
filed.
The amicus's reliance upon Rule 3(e) is misplaced--espe-
cially in this case, where Mr. Ibrahim seeks to proceed in
forma pauperis under the pre-PLRA version of s 1915, with-
out ever paying the filing fee. Even before the PLRA, the
mere filing of a notice of appeal and a request to proceed in
forma pauperis did not constitute filing of the appeal: "It
was not until ... after [the plaintiff] had been permitted by
__________
* Rule 4(a)(4) was amended in 1993, 1995, and again in 1998. We
rely upon the 1995 version because it was in effect at the time of
Mr. Ibrahim's appeals. We note, however, that, in substance, the
relevant portion of the rule has not been changed since 1993. See
Fed. R. App. P. 4 advisory committee's notes.
the district court to proceed in forma pauperis, that the
complaint was 'filed' and entered as such on the docket
sheet." Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d
Cir. 1988). Nor did the PLRA work any change in this
regard. See Smith v. United States, 182 F.3d 25, 30 (D.C.
Cir. 1999) ("[W]e will deem a prisoner to have 'filed an appeal
in forma pauperis' as soon as he has both filed a notice of
appeal and been granted in forma pauperis status, but not
before"). In sum, permission to proceed in forma pauperis is
merely a substitute for payment of the filing fee; an appellant
must either pay the fee or be excused as a pauper before his
appeal may proceed.
Regardless when--or whether--a filing fee is paid, howev-
er, a premature notice of appeal which is "ineffective" for the
purposes of Rule 4 cannot be effective for the purposes of the
PLRA. Were we to consider Mr. Ibrahim's notice of appeal
"filed" for purposes of the PLRA despite its being declared
by Rule 4 "ineffective to appeal from the judgment or order
... specified" therein, we would give effect to an otherwise
ineffective filing in the teeth of the Rule. Cf. Ekstrom v.
Value Health, Inc., 68 F.3d 1391, 1394 (D.C. Cir. 1995)
("Appellants first moved for reconsideration, and then filed a
notice of appeal.... [T]he District Court denied appellants'
motion to reconsider ... and the notice of appeal became
effective"). That we cannot do. Therefore, Mr. Ibrahim
cannot avoid the strictures of the PLRA by filing a premature
notice of appeal.
We conclude that Mr. Ibrahim's appeals ripened only after
the district court disposed of his post-judgment motions.
Accordingly, Mr. Ibrahim's appeals are, like Mr. Chandler's,
subject to the PLRA, and we must determine whether the
appellants' pre-PLRA dismissals make them ineligible, pursu-
ant to s 1915(g), to pursue their present appeals in forma
pauperis.
B. Section 1915(g)
The presumption against retroactive legislation is well es-
tablished in our jurisprudence. The reasons for the presump-
tion are straightforward: "Elementary considerations of fair-
ness dictate that individuals should have an opportunity to
know what the law is and to conform their conduct according-
ly; settled expectations should not be lightly disrupted."
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994). In
order to determine whether a statute applies retroactively
despite the negative presumption the Supreme Court teaches:
[Our] first task is to determine whether Congress has
expressly prescribed the statute's proper reach....
When ... the statute contains no such express command,
the court must determine whether the new statute would
have retroactive effect, i.e., whether it would impair
rights a party possessed when he acted, increase a
party's liability for past conduct, or impose new duties
with respect to transactions already completed. If the
statute would operate retroactively, our traditional pre-
sumption teaches that it does not govern absent clear
congressional intent favoring such a result.
Id. at 280.
According to the amicus, s 1915(g) contains no "express
command" requiring its retroactive application, nor can one
be found by employing the "normal rules of [statutory] con-
struction." See Lindh v. Murphy, 521 U.S. 320, 326 (1997).
Citing the Supreme Court's conclusion in Martin v. Hadix,
527 U.S. 343, 119 S. Ct. 1998, 2004 (1999), that the phrase "in
any action" "does not clearly express congressional intent
that [an attorneys' fee provision of the PLRA] apply retroac-
tively" to actions initiated prior to the effective date of the
Act, the amicus argues that the term "prior occasions" in
s 1915(g) is similarly unclear. Further, we are told that
application of s 1915(g) to pre-PLRA dismissals would indeed
have a retroactive effect, namely, upsetting prisoners' reason-
able expectations that new legal consequences would not
attach to their pursuit of nonmeritorious actions or appeals.
Before the effective date of the PLRA, a prisoner could
expect that, although he might be subjected to an injunction
barring further filings without leave of court, he would not
have to pay the filing fee before the court would consider any
future case he might file. Retrospective application of
s 1915(g) would therefore deny prisoners the opportunity "to
conform their conduct based on notice that lawsuits filed prior
to the PLRA could so severely limit their access to the
federal courts."
The District responds that both the wording and the pur-
pose of the statute reflect the intent of the Congress to apply
s 1915(g) retrospectively. We agree. By prohibiting a pris-
oner from proceeding in forma pauperis if "on 3 or more
prior occasions" he has had a claim dismissed for one of the
enumerated reasons, the Congress sought, as it did through-
out the PLRA, to reduce the number of nonmeritorious
actions brought by prisoners for whom litigation was a cost-
less pastime. Both the wording of the statute and more
particularly its purpose suggest that the "prior occasions" to
which s 1915(g) refers include dismissals occurring before the
effective date of the PLRA. See Green v. Nottingham, 90
F.3d 415, 419 (10th Cir. 1996); see also Tierney v. Kupers,
128 F.3d 1310, 1311 (9th Cir. 1997). To hold otherwise would
be to suggest that the Congress was willing to let all prison-
ers, including those who had thrice abused the privilege in the
past, proceed in forma pauperis with nonmeritorious cases
yet three more times.
Even if the Congress did not "unambiguously prescribe[ ]
the scope of s 1915(g)," however, the appellants' argument
that the statute should not be applied to them fails because
the statute simply does not have a "retroactive effect," as that
term is used in Landgraf. See Green, 90 F.3d at 419-20; see
also Martin, 119 S. Ct. at 2006 ("[I]nquiry into whether a
statute operates retroactively demands a common sense, func-
tional judgment about 'whether the new provision attaches
new legal consequences to events completed before its enact-
ment' ") (quoting Landgraf, 511 U.S. at 270). As a procedur-
al rule governing the filing of a claim in forma pauperis,
s 1915(g) neither divests a prisoner of his right to bring a
claim nor changes the law in a way that adversely affects his
prospects for success on the merits of the claim. See Green,
90 F.3d at 420. Section 1915(g) merely specifies that, after
having three times filed suits or appeals that were dismissed
on one of the enumerated grounds, a prisoner must pay his
own way like any other litigant.
Although we understand that a change even in a procedural
rule may have a retroactive effect, see Martin, 119 S. Ct. at
2006, the amendment of s 1915(g) does not. Leave to file a
claim in forma pauperis has always been a matter of grace, a
privilege granted in the court's discretion, see Rivera v. Allin,
144 F.3d 719, 722 (11th Cir. 1998) ("the exception rather than
the rule"), and denied in the court's discretion when that
privilege has been abused by filing claims or appeals that are
frivolous or otherwise not taken in good faith. See Sills v.
Bureau of Prisons, 761 F.2d 792, 795 (D.C. Cir. 1985);
Maloney v. E.I. DuPont de Nemours & Co., 396 F.2d 939, 940
(D.C. Cir. 1967). Its loss, therefore, does not "impair rights"
the appellants had when they filed their three pre-PLRA
cases. Nor is the loss any greater or different when it is the
Congress rather than the court that decides how many non-
meritorious cases are enough to start charging for admission
to the forum.
We understand s 1915(g) as does the Sixth Circuit, there-
fore: The statute "does not impose new or additional liabili-
ties, but instead requires collection of a fee that was always
due." Wilson v. Yaklich, 148 F.3d 596, 603 (1998) (quoting
Adepegba v. Hammons, 103 F.3d 383, 386-87 (5th Cir. 1996)).
Hence we join the eight other circuits that have considered
the question and concluded that cases dismissed prior to the
effective date of the PLRA count as "strikes" under
s 1915(g). See Welch v. Galie, No. 99-0229, 2000 WL 287316,
at *2 (2d Cir. 2000); Adepegba, 103 F.3d at 387-88 (5th Cir.);
Wilson, 148 F.3d at 604 (6th Cir.); Abdul-Wadood v. Nathan,
91 F.3d 1023, 1025 (7th Cir. 1996); In re Tyler, 110 F.3d 528,
529 (8th Cir. 1998); Tierney, 128 F.3d at 1312 (9th Cir.);
Green, 90 F.3d at 420 (10th Cir.); Rivera, 144 F.3d at 730(11th Cir.); cf. Keener v. Pennsylvania Board of Probation &
Parole, 128 F.3d 143, 144-45 (3d Cir. 1997) (pre-PLRA dis-
missals for frivolousness included as "strikes" under
s 1915(g)).
Neither Mr. Ibrahim nor Mr. Chandler claims to be in
"imminent danger of serious physical injury," which would
entitle them to file their appeals in forma pauperis regard-
less of their having accrued three prior dismissals. See 28
U.S.C. s 1915(g). In order properly to bring their appeals
before us, therefore, Messrs. Ibrahim and Chandler must pay
the full fare. See Keener, 128 F.3d at 145; Green, 90 F.3d at
420.
III. Conclusion
For the foregoing reasons, we hold first that Mr. Ibrahim's
notice of appeal was not "filed" in this court until the district
court disposed of his post-judgment motions, which was after
the effective date of the PLRA. In addition, we conclude that
pre-PLRA dismissals count as "strikes" under s 1915(g).
Accordingly, Messrs. Ibrahim and Chandler must pay the
filing fee within 30 days.
So ordered.