Dubuc v. Johnson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 2 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

BRIAN DALE DUBUC,

Plaintiff - Appellant,

v.

SATAYABAMA JOHNSON, sued as: No. 01-5122
Dr. Johnson of the Tulsa County Jail; D.C. No. 96-CV-430-M
NURSE ROSE; NURSE LINDA; (N.D. Oklahoma)
DOYLE EDGE, Sgt.; EARL
MCCLAFLIN, sued as: Corporal
McLoughlon; DIANA JANE COOK,
sued as: Corporal Cook; ZACHARY J.
VIERHELLER, sued as: Detention
Officer Zack Veirhiller; OFFICER
WARREN, detention officer;
OFFICER SHAWN, detention officer;
WENCESLAO AGUILA, sued as:
detention officer Aguila; OFFICER
MARTAIN, detention officer;
STANLEY GLANZ, Sheriff Tulsa
County; RON ISMAN, medical
administrator,

Defendants - Appellees.

ORDER

Before MURPHY , McKAY , and HARTZ , Circuit Judges.
 We VACATE the district court’s grant of Plaintiff’s motion to proceed in

forma pauperis and direct Plaintiff to pay the full filing fee within thirty days.

Plaintiff’s failure to pay the filing fee as directed will result in the dismissal of

his appeal for failure to prosecute. See Young v. Miller, 144 F.3d 1298 (10th Cir.

1998). The opinions of the panel in support of and in opposition to this Order are

attached.

McKAY , Circuit Judge.

Plaintiff Dubuc appeals for the second time claims brought pursuant to 42

U.S.C. § 1983. On Plaintiff’s first appeal, we affirmed the district court’s

dismissal and grant of summary judgment on several of his original claims.

However, we remanded for further proceedings Plaintiff’s claims based on his

allegation that detention officers had used excessive force while moving him to a

new cell for disciplinary reasons. See Dubuc v. Johnson, No. 99-5107, 1999 WL

1101851, 1999 U.S. App. LEXIS 31594 (10th Cir. 1999).

Upon remand, the district court granted Defendants’ Fed. R. Civ. P. 50(a)

motion for judgment as a matter of law as to the supervisory defendants. The jury

returned a verdict in favor of the remaining Defendants. The district court

granted Plaintiff’s motion to proceed in forma pauperis on appeal. Accordingly,

Plaintiff filed his appeal without prepayment of the appropriate fees. Plaintiff

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challenges the district court’s denial of a transcript at government expense, the

district court’s denial of Plaintiff’s motion to amend his complaint, various juror

issues, and alleged defects occurring during trial proceedings.

Plaintiff is a prisoner bringing a civil appeal after having at least three

prior actions or appeals dismissed on the grounds that they were frivolous,

malicious, or failed to state a claim upon which relief can be granted. See D.C.

No. 97-CV-650 (N.D. Okla. Apr. 13, 1998); D.C. No. 93-CV-192 (E.D. Okla. Jan.

30, 1995); D.C. No. 92-CV-193 (N.D. Okla. Apr. 22, 1993). Title 28 U.S.C. §

1915(g) applies to prisoners who have filed at least three prior frivolous actions

or appeals. Section 1915(g) 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.

Id. An action or appeal that has been dismissed as frivolous, malicious, or for

failure to state a claim is commonly referred to as a “strike.”

There is some confusion in this circuit concerning the effect that an appeal

filed pursuant to § 1915(g) has on our ability to review the merits of a three-

strike-prisoner-plaintiff’s claims who has not paid the requisite appellate fees. It

is possible to read into our cases three separate approaches--§ 1915(g) is a

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jurisdictional rule preventing any review of the merits, § 1915(g) is not

jurisdictional in nature but contains a condition precedent (prepayment of

appellate fees) which prevents review of the merits until appellate fees have been

paid, or § 1915(g) is not a jurisdictional rule and the court in its discretion may

review the merits of a prisoner’s claims.

Whether viewed from the so-called plain language perspective or more

broadly to determine Congress’ intent, § 1915(g)’s mandate is that “in no event”

shall a post-three-strikes civil action be brought. To the extent that the language

of our cases or our practice may have departed from this absolute bar, they are

contrary to the statute.

We first addressed the proper scope of § 1915(g) in Green v. Nottingham,

90 F.3d 415, 420 (10th Cir. 1996). In Green we stated, “Section 1915(g)

generally prevents a prisoner from proceeding in forma pauperis in civil actions if

three or more of his prior suits have been dismissed as frivolous or malicious, or

for failure to state a claim.” Id. at 418. While the words “generally prevents”

may subsequently have been viewed as importing some discretion, properly read

they merely alert readers that § 1915(g)’s “in no event” language is subject to a

single statutory exception for circumstances where “the prisoner is under

imminent danger of serious physical injury.” The court concluded that § 1915(g)

was a “procedural rule governing in forma pauperis filings by prisoners[,]” and

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that Green was precluded from proceeding in forma pauperis on appeal because

he had accumulated at least three strikes. Id. at 420.

The notion that § 1915(g) might be considered jurisdictional in nature was

raised in our subsequent decisions. In Pigg v. FBI, 106 F.3d 1497 (10th Cir.

1997), we held that “[s]ection 1915(g) is not a jurisdictional limitation but merely

requires the full prepayment of fees where the conditions of the statute are met.”

Id. (citation omitted). In In re Washington, 122 F.3d 1345 (10th Cir. 1997), we

denied the petitioner’s request to proceed in forma pauperis on appeal because he

had accumulated at least three strikes. We held that “[p]etitioner may resubmit

his petition by paying the required filing fee.” Id. In these two cases, § 1915(g)

is viewed not as announcing a jurisdiction rule but instead as imposing a

condition precedent to filing an appeal after a prisoner has accumulated three

strikes. Accordingly, the technical language of jurisdiction is unnecessary to fully

implement §1915(g)’s clear intent.

The relationship of § 1915(g)’s prohibition and our ability to nevertheless

proceed to the merits of a prisoner’s appeal was further complicated by our

decision in Garcia v. Silbert, 141 F.3d 1415 (10th Cir. 1998). In a footnote, the

court reiterated our prior holdings that §1915(g) was not jurisdictional and

concluded “we therefore [can] elect to reach the merits of this action.” Id. at

1417, n.1. Garcia’s claims were then addressed on the merits. Many of our

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unpublished decisions have relied upon Garcia to justify reaching the merits of a

prisoner’s appeal when the prisoner has failed to prepay the appellate fees and has

accumulated at least three prior strikes.

While Garcia apparently held that the court could within its discretion

determine a prisoner’s appeal on the merits despite § 1915(g)’s provisions, a

separate panel of this court indirectly rejected Garcia’s holding just two weeks

later. In Young v. Miller, 144 F.3d 1298 (10th Cir. 1998), the court refused to

reach the merits of a prisoner’s appeal holding that since the prisoner had three

prior strikes and was not “in imminent danger of serious physical injury, he

cannot proceed under the in forma pauperis provisions.” Id. at 1299. The court

concluded that “the district court erred in granting Young’s motion to proceed in

forma pauperis, and th[e] appeal was not properly filed.” Id. It then vacated the

district court’s order and directed the prisoner to pay the full filing fee within

thirty days or face dismissal of his appeal.

Section 1915(g) on its face allows but one statutory exception to the

otherwise comprehensive requirement that prisoners with at least three prior

strikes prepay appellate fees. That exception applies only in situations where “the

prisoner is under imminent danger of serious physical injury.” 28 U.S.C.

§1915(g). Apart from this single statutory exception, § 1915(g)’s “in no event”

language must be applied.

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 Section 1915(g) represents Congress’ attempt to balance the needs of

overloaded judges to hear cases of individuals who have not abused the judicial

process in the past with prisoners who have abused the judicial process on at least

three prior occasions through frivolous filings. There is no question that §

1915(g) is constitutional. See White v. Colorado, 157 F.3d 1226, 1232-35 (10th

Cir. 1998) (holding that ifp status is not a fundamental right and that §1915(g) is

rationally related to the legitimate end of deterring frivolous lawsuits). As we

have stated previously, “The right of access to the courts is neither absolute nor

unconditional.” Schlicher v. Thomas, 111 F.3d 777, 781 (10th Cir. 1997)

(quotation omitted). Section 1915(g) simply removes the government’s temporary

subsidy for prisoner appeals in cases where the prisoner has filed at least three

prior frivolous petitions. A prisoner may continue to file actions, even frivolous

ones, but must prepay all applicable filing fees.

I recognize the potential danger of Congress’ choice. Section 1915(g) can

prevent a prisoner who has filed three or more frivolous actions from litigating a

meritorious constitutional claim until that prisoner can pay the appropriate filing

fees. Yet, this is the consequence of Congress’ choice. A natural hazard of

balancing the potentially divergent needs of two or more distinct groups is the

possibility that one of the groups is disadvantaged. Yet, the court must proceed in

the manner directed by Congress. See, e.g., Hukkanen-Campbell v.

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Commissioner, 274 F.3d 1312, 1315 (10th Cir. 2001) (Congress, not courts, must

correct any perceived inadequacies in statutes).

I also recognize the irony that ascertaining whether a particular prisoner

litigant has accumulated at least three strikes may require the use of more judicial

resources than addressing the prisoner’s claims on the merits. Thus, a statute

intended to conserve judicial resources might on occasion require expending

additional resources. While such a result is certainly ironic, it cannot justify the

judicial repeal of § 1915(g)’s “in no event” language.

Whatever conflict may exist between § 1915(g) and the Federal Rule of

Appellate Procedure 3(a)(2), which allows courts to potentially consider the

merits of an appeal without the prepayment of appellate fees, must be resolved in

favor of § 1915(g). See Houchin v. Zavaras, 107 F.3d 1465, 1469 (10th Cir.

1997) (“In reconciling this apparent conflict between the statute and the [R]ule

[of Appellate Procedure], we bear in mind that when construing a statute, the text

of each provision should be read so as to give effect to all the statute’s

provisions.”). To the extent Rule 3(a)(2) conflicts with the statute, it is clear that

the general rule cannot supersede the specific statutory command found in §

1915(g).

Only an en banc panel may overrule a prior panel’s decision. See United

States v. Edwards, 224 F.3d 1216, 1220 (10th Cir. 2000) (stare decisis permits the

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overturn of a prior panel’s decision only through rehearing en banc, “a

superseding contrary Supreme Court decision, or authorization of all currently

active judges on the court”). Id. After careful review, even though I disagree

with Garcia’s construction of the statute, I cannot say that it is in clear conflict

with prior precedent. As a result, until otherwise modified by the en banc court,

its base holding that the court retains discretion to ignore the “in no event”

language of the statute cannot be overruled. However, I believe it not

inconsistent with Garcia and Miller to conclude that discretion should be

exercised only in extraordinary circumstances. This is not an extraordinary case,

and I therefore abide by the language of the statute which says “in no event.”

In sum, §1915(g)’s provisions are not jurisdictional in nature but contain a

condition precedent which prevents a review of the merits of a three-strike-

prisoner-plaintiff’s claims, except under extraordinary circumstances, until the

prisoner has prepaid the applicable fees. Because Plaintiff has accumulated at

least three strikes, failed to prepay the appropriate filing fees, and because his

appeal does not involve imminent danger of serious physical injury or

extraordinary circumstances invoking our discretion, this panel cannot reach the

merits of his appeal.

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MURPHY, Circuit Judge.

Like the other two members of this panel, I agree that ' 1915(g) precludes

a court from allowing a pro se prisoner-plaintiff with three prior strikes to

proceed in a civil suit unless he has prepaid the filing fee or can demonstrate the

one exception to this otherwise absolute bar: that he is “under imminent danger of

serious physical injury.” 28 U.S.C. ' 1915(g). Judge McKay, however,

concludes that our decision in Garcia v. Silbert, 141 F.3d 1415 (10th Cir. 1998),

constitutes binding precedent and permits this court to exercise discretion to

address the merits of an appeal filed by a prisoner-plaintiff with three prior

strikes. Judge Hartz believes that such discretion arises not from ' 1915(g) but

from Rule 3(a)(2) of the Federal Rules of Appellate Procedure. Thus, both of my

colleagues conclude that this court has discretion to address the merits of an

appeal filed by a prisoner-plaintiff with three prior strikes; they disagree only on

the source of that discretion and whether it should be exercised in this case. I

believe this court lacks discretion under either ' 1915(g) or Rule 3(a)(2).

I first disagree with the conclusion that this court’s opinion in Garcia does

not clearly conflict with prior circuit precedent. Shortly after 28 U.S.C. ' 1915

was amended by the Prison Litigation Reform Act of 1995 (“PLRA”), this court

addressed whether ' 1915(g) applied to actions dismissed as malicious or

frivolous prior to the effective date of the PLRA. See Green v. Nottingham, 90

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F.3d 415, 418-20 (10th Cir. 1996). The court began its analysis by taking judicial

notice that more than three actions or appeals filed by the prisoner-plaintiff had

been dismissed as frivolous or malicious prior to the enactment of the PLRA. See

id. at 418. The court then stated that the prisoner-plaintiff, therefore, “cannot

proceed in forma pauperis if ' 1915(g) applies to suits dismissed prior to its

enactment.” Id. (emphasis added). After first concluding that ' 1915(g) was a

procedural rule, the court held that prisoner-plaintiff suits dismissed as malicious

or frivolous prior to the enactment of the PLRA count against the three strikes

allowed under ' 1915(g). See id. at 420. The court then held “that ' 1915(g)

prevents Mr. Green from proceeding in forma pauperis in this proceeding.” Id. at

420 (emphasis added). The court dismissed the prisoner-plaintiff’s appeal and

“direct[ed] the Clerk of this Court not to accept from [the plaintiff] any further

extraordinary writs in noncriminal matters, or appeals of judgments in civil

actions or proceedings, unless he pays the filing fees established by our rules.” 1

Id. Although the Green court did not directly address the issue of discretion, the

court’s opinion, including its unequivocal direction to the clerk of the court, left

open no possibility that this court, even in the exercise of its discretion, could

1
Consistent with the sole exception found in ' 1915(g), the court specifically
stated that its prohibition did not apply to appeals or petitions in which Mr. Green
alleged he was under imminent danger of serious physical injury. See Green v.
Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).

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allow the prisoner-plaintiff to proceed in forma pauperis unless he prepaid the

filing fees.

Less than a year after Green, this court addressed the question of whether

the district court’s dismissal of the case then before the court on appeal could be

counted as one of the prisoner-plaintiff’s three strikes. See Pigg v. FBI, 106 F.3d

1497, 1497 (10th Cir. 1997). Although not dispositive to its conclusion that the

dismissal of the present action could not be counted, the court cited Green for the

proposition that “['] 1915(g) is not a jurisdictional limitation but merely requires

the full prepayment of fees where the conditions of the statute are met.” Id.

(emphasis added). The court then remanded the matter to the district court for a

determination of whether other suits filed by the prisoner-plaintiff should be

counted as strikes. See id. at 1498. Presumably, the court’s discussion of the rule

established in Green was intended to provide guidance to the district court if it

concluded on remand that the prisoner-plaintiff did have three strikes.

In an order published in 1997, this court relied on Green to support its

conclusion that a prisoner-plaintiff=s three prior strikes prevented him from

proceeding in forma pauperis on appeal. See In re Washington, 122 F.3d 1345,

1345 (10th Cir. 1997). The court denied the prisoner-plaintiff’s request to

proceed in forma pauperis and, as in Green, instructed the clerk of the court to

not accept any future filings from him in noncriminal matters unless the filing fee

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was prepaid. See id. Again, the restriction on future filings foreclosed any

possibility that this court could exercise its discretion to allow the prisoner-

plaintiff to proceed without prepayment.

Notwithstanding the unequivocal holdings in Green and In re Washington,

this court thereafter held that because ' 1915(g) is not a bar to jurisdiction, it

would exercise discretion to address the merits of a prisoner-plaintiff’s claims

even though he had not prepaid the appellate filing fee. See Garcia v. Silbert,

141 F.3d 1415, 1417 n.1 (10th Cir. 1998). To support its conclusion, Garcia

relied on Pigg’s statement that “['] 1915(g) is not a jurisdictional limitation,” but

then ignored Pigg’s admonition that ' 1915(g) “requires the full prepayment of

fees where the conditions of the statute are met.” Pigg, 106 F.3d at 1497

(emphasis added).

Although neither Green nor In re Washington directly addressed the issue

of this court=s discretion to proceed to the merits of appeals filed by prisoner-

plaintiffs with three strikes, stare decisis includes “precedent in which a court has

decided identical factual issues.” FDIC v. Jennings, 816 F.2d 1488, 1492 (10th

Cir. 1987); see also United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000)

(“The precedent of prior panels which this court must follow includes not only the

very narrow holdings of those prior cases, but also the reasoning underlying those

holdings, particularly when such reasoning articulates a point of law.”). I can

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discern no difference between the facts presented in Green, In re Washington, and

Garcia which would explain the conflicting treatment of the prisoner-plaintiff=s

claims in Garcia. In all three cases, the prisoner-plaintiff had three strikes and

was attempting to proceed in forma pauperis on appeal. In both Green and In re

Washington, we concluded that the plaintiff was not only foreclosed from

proceeding in forma pauperis in the appeal before the court, but he was absolutely

barred from proceeding in this court in all further noncriminal matters unless he

prepaid the filing fee. Because the clerk of the court was specifically directed not

to accept any future filings, no panel of this court could ever exercise discretion

to allow the plaintiffs to proceed on appeal without prepaying. In Garcia,

however, we concluded that ' 1915(g) did not bar this court from addressing the

merits of the claims raised by the prisoner-plaintiff notwithstanding his failure to

prepay the appellate filing fee. The Garcia opinion contains no fact, factor, or

reason that Garcia should be treated differently or more favorably than Green or

Washington.

There is no basis on which the holdings in these cases can be reconciled.

Thus, I can only conclude that the holding in Garcia, that this court has discretion

to address the merits of claims raised on appeal even when a prisoner-plaintiff

with three strikes has failed to prepay the appellate filing fee, clearly conflicts

with the unambiguous and unequivocal holdings in both Green and In re

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Washington. Green, being the first case to decide the identical factual issue

presented in Garcia and the case at bar, constitutes binding circuit precedent

which must be followed by subsequent panels of this court, including this panel.

See Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996) (“[W]hen faced

with an intra-circuit conflict, a panel should follow earlier, settled precedent over

a subsequent deviation therefrom.”). Consequently, I believe this court has no

discretion under ' 1915(g) to address the merits of the claims presented on appeal

by Mr. Dubuc because he has had three prior noncriminal matters dismissed as

frivolous, malicious, or for failure to state a claim. My interpretation of Garcia is

not inconsistent with that of Judge Hartz who believes the discretion exercised in

Garcia arose from Rule 3(a)(2), not ' 1915(g).

Although I disagree with Judge McKay’s interpretation of Garcia, I

agree with his conclusion that Rule 3(a)(2) of the Federal Rules of Appellate

Procedure does not provide this court with an alternative basis on which to

proceed to the merits of Mr. Dubuc=s claims. Section ' 1915(g) is rendered

wholly superfluous under Judge Hartz’s interpretation of Rule 3(a)(2) because

this court could ignore its prohibition in every instance in which a prisoner-

plaintiff with three strikes seeks to proceed on appeal without the prepayment of

filing fees. There is a real conflict between Rule 3(a)(2) and ' 1915(g) and that

conflict must be resolved in favor of ' 1915(g).

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 Both Judge Hartz and I agree that this court has no discretion under '

1915(g) to consider an appeal filed by a prisoner-plaintiff with three strikes until

he pays the appellate filing fee. Judge McKay and I agree there is no discretion

under Rule 3(a)(2) and we agree that Mr. Dubuc has accumulated three strikes.

Accordingly, because Mr. Dubuc has not paid the appellate filing fee, this court

cannot proceed to the merits of his appeal and it should be dismissed if he fails to

pay the fee in full within thirty days.

HARTZ, Circuit Judge, dissenting:

I respectfully dissent. In my view, we have discretion to hear this appeal

without regard to whether Plaintiff has three strikes. I would exercise that

discretion and address the merits.

My views can be summarized briefly. The three-strike provision, 28 U.S.C.

' 1915(g), does not prohibit prisoners with three strikes from appealing; it merely

requires them to pay the full filing fee in advance--a requirement that applies to

all appellants except those proceeding in forma pauperis. When an appellant has

not paid the required filing fee, Federal Rule of Appellate Procedure 3(a)(2)

grants the appellate court broad discretion regarding how to proceed. The rule

permits the court to take any action “it considers appropriate.” On occasion, the

appropriate action may be to hear the appeal and collect the filing fee later.

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 Exercising that discretion in favor of a three-strike prisoner does not

contravene the purpose of ' 1915(g). The purpose of that section is to relieve the

burden on the federal courts arising from frivolous prisoner litigation. When

judicial efficiency is better served by addressing the merits of an appeal than by

ruling on whether a prisoner has three strikes, the exercise of Rule 3(a)(2)

discretion to hear an appeal is completely consonant with the purpose of '

1915(g). Nothing in Rule 3(a)(2) or ' 1915(g) requires, or even suggests, that we

should use the rule to hear an appeal only in “extraordinary circumstances.”

Majority Op. at 9. I shall later mention several circumstances in which an

appellate court may find it appropriate to hear an appeal regardless of, or without

considering, whether a prisoner has three strikes. Some of these circumstances

may be considered extraordinary, but others certainly are not.

I now proceed to a more detailed discussion.

Rule 3(a)(2) states, “An appellant=s failure to take any step other than the

timely filing of a notice of appeal does not affect the validity of the appeal, but is

ground only for the court of appeals to act as it considers appropriate, including

dismissing the appeal.” The rule undoubtedly contemplates that one of the steps

an appellant may fail to take is paying the filing fee. When Rule 3 was amended

in 1979 to add subdivision (e) (which mandates payment of required fees “[u]pon

filing a notice of appeal”), the Advisory Committee Note explained:

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 In view of the provision in Rule 3(a) that
“[f]ailure of an appellant to take any step
other than the timely filing of a notice of
appeal does not affect the validity of the
appeal, but is ground only for such action as
the court of appeals deems appropriate, which
may include dismissal of the appeal,” the case
law indicates that the failure to prepay the
statutory filing fee does not constitute a
jurisdictional defect. See Parissi v.
Telechron, 349 U.S. 46 (1955); Gould v.
Members of N.J. Division of Water Policy &
Supply, 555 F.2d 340 (3d Cir. 1977).

In other words, when the appellant has failed to prepay the filing fee, the

appellate court is authorized “to act as it considers appropriate.”

The three-strike statute, 28 U.S.C. ' 1915(g), does not conflict with or

trump Rule 3(a)(2). To begin with, it is useful to put ' 1915(g) in context.

Section 1915, entitled “Proceedings in forma pauperis,” relates to litigation by

indigent prisoners. It relieves such prisoners of several financial obligations that

would otherwise be imposed. With respect to filing fees, the prisoner is still

required to pay in full, but the fee is paid periodically, out of funds that may or

may not be available in the prisoner’s institutional account. See ' 1915(b). In

addition, the prisoner may be entitled to a free copy of the record on appeal, a

free transcript of proceedings, and free process. See ' 1915(c)-(d).

What ' 1915(g) does is limit the benefits conferred by ' 1915. It does not,

however, limit the application of any other statute or rule. Section 1915(g) states:

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 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). Thus, all that a prisoner with three strikes forfeits--all that such

a prisoner can “in no event” do--is “bring a civil action or appeal a judgment in a

civil action or proceeding under this section.” ' 1915 (g) (emphasis added). The

prisoner with three strikes should therefore be treated as an ordinary appellant--

one who has to prepay the full filing fee but is eligible for relief under Rule

3(a)(2).

I agree with the majority opinion that a statute “should be read so as to give

effect to all [its] provisions.” Houchin v. Zavaras, 107 F.3d 1465, 1469 (10th Cir.

1997). In my view, the above reading of ' 1915(g) does that. Recognizing that

Rule 3(a)(2) survives ' 1915(g)’s three-strike provision does not eviscerate '

1915(g). Section 1915(g) still deprives the three-strike prisoner of what would

otherwise be several categorical rights of an indigent litigant; the prisoner is left

only with the mere possibility that the appellate court will use Rule 3(a)(2) to

grant a waiver of the requirement to prepay filing fees in full. Courts that are now

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overburdened by frivolous prisoner litigation are not likely to be eager to grant

three-strike prisoners relief under Rule 3(a)(2).

Perhaps there will be occasions when a court invokes Rule 3(a)(2) because it

is impressed with the merits and importance of the prisoner=s case and believes it

would be an injustice to deprive the prisoner of the opportunity to pursue the claim

just because the prisoner cannot prepay the full filing fee. Cf. Rivera v. Allin, 144

F.3d 719, 731 n.18 (11th Cir. 1998) (because three-strike prisoner raised important

constitutional issue, appeals court would not require immediate full payment of

filing fee). Much more common, however, will be cases in which the court finds it

more efficient to address the merits than the three-strikes issue. For example, in

Garcia v. Silbert, 141 F.3d 1415 (10th Cir. 1998), apparently the panel opinion

had already been prepared when the three strikes were discovered. At that point,

dismissal of the appeal would have been easy, but the useful law set forth in the

opinion would have been lost, no doubt resulting in future wasteful litigation on

the same issue. Efficiency of the courts counseled disposing of the case on the

merits.

In other cases the substantive issues on appeal may be easier to resolve than

whether the prisoner has three strikes. Substantial effort may be required to check

the prisoner=s litigation history; and even when that history is known, it may be

unclear whether to count a loss as a strike. For example, in each of the three cases

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counting as strikes against Plaintiff, all or part of the complaint was dismissed for

failure to state a claim. In each, the district court applied our then-current law

imposing a heightened pleading standard on ' 1983 claims. Since then, we have

recognized that this standard is inconsistent with the Rules of Civil Procedure.

Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001). We have not decided

whether it is proper to count as a strike a dismissal that was predicated on

erroneous Tenth Circuit law. Also, in one of Dubuc’s strike cases, Dubuc v.

Boone, No. CIV 93-192-B (E.D. Okla. Jan. 30, 1995), the district court dismissed

part of his ' 1983 claim as moot because the prison had ceased to enforce its

grooming code and its religious exemption policy. I question whether dismissal of

a complaint should count as a strike when a portion of the claim became moot as a

result of a defendant=s action that may have been motivated by the complaint. This

court and its staff could spend a great deal of time and effort resolving the facts

surrounding an apparent strike and the law governing what constitutes a strike.

We have discretion under Rule 3(a)(2) to avoid those tasks when addressing the

merits is relatively simple. It would be ironic if ' 1915(g), whose clear purpose is

to reduce the burden on the courts, required us to take the more burdensome

course.

Not only does my reading of ' 1915(g) give effect to all its provisions but it

also conforms to another revered canon of statutory construction: “It is a cardinal

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principle of construction that repeals by implication are not favored. When there

are two acts upon the same subject, the rule is to give effect to both if possible.

The intention of the legislature to repeal must be clear and manifest. . . . There

must be a positive repugnancy between the provisions of the new law and those of

the old; . . . .” United States v. Borden Co., 308 U.S. 188, 198-99 (1939) (internal

quotation marks and citations omitted). The same rule applies to partial repeals.

We have stated that “we find no merit in the argument that the partial implied

repeal of a statute should be viewed with less disfavor.” Yellowfish v. City of

Stillwater, 691 F.2d 926, 928 (10th Cir. 1982). We should avoid interpreting '

1915(g) so as to repeal in part Rule 3(a)(2).

I have found no reported decision regarding the impact of ' 1915(g) on Rule

3(a)(2). But there are two reported decisions addressing whether the words “in no

event” in one statute trump general language in another statute. Both cases

involved statutes of limitations in professional malpractice actions. Roughly

speaking, the statutes set limitations periods running from the date the plaintiff

discovered the cause of action but then said that “in no event” could a suit be filed

more than a specified number of years after the act of malpractice. Another

statute, however, tolled all limitations periods while the plaintiff was under a legal

disability, such as minority. Both decisions held that the minority-tolling

provision applied despite the “in no event” language. Hatfield v. Bishop Clarkson

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Mem. Hosp., 679 F.2d 1258 (8th Cir. 1982) (interpreting Nebraska law), vacated,

701 F.2d 1266 (8th Cir. 1983) (certifying issue to state supreme court, which

reached the same conclusion shortly thereafter in another case, Sacchi v. Blodig,

341 N.W.2d 326 (Neb. 1983)); Kohrt v. Yetter, 344 N.W.2d 245 (Iowa 1984).

Moreover, unlike ' 1915(g), the “in no event” sentences in these two cases did not

expressly limit the scope of the phrase to the statutory section in which the phrase

appeared. I am comfortable that when Congress wrote “in no event shall a

prisoner . . . appeal a judgment . . . under this section,” it did not mean to negate

provisions in other statutes or rules.

My reading of the statute conforms to our single holding in point. In Garcia

v. Silbert, in which we ruled in favor of the prisoner, we wrote:

Although neither party addresses the issue,
Garcia’s appeal before this court, filed over
two months after the PLRA [Prison Litigation
Reform Act] went into effect, is governed by
' 1915(g). Because Garcia=s complaint does
not allege imminent harm and he has had at
least three prior actions dismissed as
frivolous, he should not have been permitted
to appear before this court without full
prepayment of all required fees. Nevertheless,
“[s]ection 1915(g) is not a jurisdictional
limitation . . . ,” Pigg v. Federal Bureau of
Investigation, 106 F.3d 1497, 1497 (10th Cir.
1997), and we therefore elect to reach the
merits of this action.

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141 F.3d at 1417 n.1. In short, we addressed the merits of an appeal by a prisoner

with three strikes before the prisoner paid the filing fee. Garcia did not state that

the court was required to decide the appeal; the court exercised its discretion to

hear the case. In several other appeals we have refused to hear the three-strike

prisoner’s appeal when the filing fee has not been fully paid. But just as the

exercise of discretion to hear an appeal does not imply that the appeal must be

heard, the exercise of discretion to dismiss the appeal does not imply that

dismissal is required. None of the opinions that dismissed appeals even mentioned

Rule 3(a)(2) or addressed the question whether dismissal was mandatory.

Hence I dissent. For reasons that it would be inappropriate to expand upon,

the interests of judicial efficiency would best be served if we exercise our

discretion and decide the merits of this appeal before payment of the full fee.

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