Revised December 3, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-41292
_____________________
CLIFTON RAY CHOYCE,
Plaintiff-Appellant,
v.
DANIEL DOMINGUEZ, Sergeant; LUIS D GUTIERREZ;
DWIGHT F MORRIS, JR,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 2, 1998
Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
Clifton Ray Choyce, Jr., a Texas prisoner, appeals the
magistrate judge’s order dismissing his pro se in forma pauperis
civil rights suit, 42 U.S.C. § 1983, pursuant to the “three
strikes rule” of the Prison Litigation Reform Act, 28 U.S.C.
§ 1915(g). We vacate the magistrate judge’s order granting IFP
status on appeal and remand for reconsideration in the light of
this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-appellant Clifton Ray Choyce, Jr., is a state
prisoner incarcerated at the McConnell Unit of the Texas
Department of Criminal Justice-Institutional Division at
Beeville, Texas. In a pro se complaint filed on June 16, 1997,
Choyce alleged the following: On May 7, 1997, he was returning
to his cell from the dining hall when he passed defendants-
appellees Luis D. Gutierrez and Dwight F. Morris, Jr.,
correctional officers at the McConnell Unit. Morris said to
Choyce, “I’m gonna beat your lawsuit filing ass when I get
another chance.” Choyce asked Morris whether he was threatening
retaliation for a lawsuit that Choyce had filed against him.
Morris responded, “You know I will. Fuck that lawsuit. The
court ain’t gonna do nothing but throw that shit out. I can do
what I want to do.” At that point, defendant-appellee Daniel
Dominguez, a sergeant at the McConnell Unit, approached Choyce
from behind, grabbed his left arm, ordered Gutierrez and Morris
to throw him on the floor, and told him, “I told your black ass
we gonna get you. You’re filing to[o] much shit.” Gutierrez
then grabbed Choyce around the waist, and Morris struck him in
the face with his fist and threw him to the ground. Morris then
poked his finger into Choyce’s right eye and twice slammed the
right side of Choyce’s head on the concrete floor. Dominguez
struck Choyce’s head with a pair of handcuffs and twisted
Choyce’s left arm while his knee was in Choyce’s back. Choyce
suffered a swollen and bruised right cheek and right wrist, knots
2
and bruises on the right side of his head, a bruised left wrist,
and a skinned left elbow.
Choyce claimed that the May 7, 1997 incident was only one
episode in an ongoing pattern of threats and violence designed to
retaliate against him for filing lawsuits protesting his
treatment in prison. For example, he asserted that on September
11, 1996, when he asked Dominguez to stop two officers from
threatening him, Dominguez replied, “Shut the fuck up! I’ll let
them beat your ass, I’m ti[r]ed of your shit too!” On April 2,
1997, Choyce claimed, Dominguez ordered two other officers to
handcuff and put him on the floor, although Choyce had engaged in
no wrongful conduct. Moreover, two days after the May 7, 1997
assault, Morris allegedly told Choyce, “I didn’t get your ass
like I wanted to. You won’t survive next time I get you.” On
May 14, 1997, Morris told Choyce, “Just like the first, you
didn’t fight back,” and Dominguez said, “None of the smart assies
[sic] fight back. We’ll get him again if he keep filing shit.
We get us one every day on my shift.”
Choyce filed an action in the United States District Court
for the Southern District of Texas, Corpus Christi Division, for
damages and injunctive relief under 42 U.S.C. § 1983, alleging
unnecessary and excessive use of force in violation of the Eighth
Amendment and retaliation for exercising his right to free access
to the courts in violation of the First and Fourteenth
Amendments. He also alleged the torts of assault and battery.
3
Choyce consented to proceed before a magistrate judge. The
defendants were served, filed an answer, and also consented to
proceed before the magistrate judge.
Title 28, United States Code Section 1915 governs federal
proceedings in forma pauperis (IFP). Section 1915(g) provides:
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). Noting that Choyce had had four suits
dismissed as frivolous or for failure to state a claim in the
district court,1 the magistrate judge concluded that Choyce was
prohibited from bringing the instant complaint IFP unless he was
in imminent danger of serious physical injury. She found that
the incident giving rise to the injury had occurred seventeen
months before2 and that there was no indication of present danger
1
See Choyce v. Perez, No. C-96-CV-259 (S.D. Tex. Oct. 9,
1996); Choyce v. Doss, No. H-94-CV-2147 (S.D. Tex. Jan. 31,
1996); Choyce v. Thaler, No. H-95-CV-3677 (S.D. Tex. Dec. 12,
1995); Choyce v. Dyers, No. H-95-CV-316 (S.D. Tex. Aug. 10,
1995), aff’d, 77 F.3d 474 (5th Cir. 1995). Choyce does not
challenge the magistrate judge’s taking judicial notice that he
has had four suits dismissed as frivolous or for failure to state
a claim in the United States District Court for the Southern
District of Texas while he was a prisoner.
2
In fact, only five months had elapsed between the
incident giving rise to the complaint and the magistrate judge’s
order of dismissal.
4
to Choyce. Accordingly, she dismissed the complaint without
prejudice pursuant to 28 U.S.C. § 1915(g). Choyce timely
appealed, and the magistrate judge granted leave to proceed IFP
on appeal.
II. DISCUSSION
On appeal, Choyce contends that the magistrate judge erred
in finding that he was not under imminent danger of serious
physical injury. He also argues that 28 U.S.C. § 1915(g) is
unconstitutionally vague because it fails to define what it means
to be “under imminent danger of serious physical injury.” We do
not reach these issues, however, because we find that we must
vacate the magistrate judge’s grant of IFP status on appeal.
In Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir. 1998), a
case decided after the magistrate judge’s determination at issue
here, we held that the determination as to whether a prisoner is
in “imminent danger” must be made as of the time that he seeks to
file IFP his complaint or notice of appeal. But see Gibbs v.
Roman, 116 F.3d 83, 86 (3d Cir. 1997) (holding that an inmate
filing a complaint pursuant to § 1915(g) must allege imminent
danger at the time of the alleged incident that serves as the
basis of the complaint rather than at the time the complaint was
filed). In Baños, the district court dismissed the prisoner-
litigant’s § 1983 action pursuant to § 1915(g) because he had
filed at least four prior actions that had been dismissed as
frivolous and had not alleged that he was in imminent danger of
5
serious bodily injury. See Baños, 144 F.3d at 884. The prisoner
filed a notice of appeal and an application to proceed IFP on
appeal, which the district court granted. See id. The Fifth
Circuit revoked his IFP status and dismissed his appeal because
he did not establish or even allege that he was under imminent
danger of serious physical injury at the time that he filed his
notice of appeal. See id. at 885.
We first consider whether Choyce may proceed IFP with this
appeal.3 Baños held that in reviewing a grant of leave to appeal
IFP, the appellate court must determine if danger exists at the
time the plaintiff seeks to proceed with his appeal or files a
motion to proceed IFP. See id. at 884-85. The magistrate judge
in this case concluded that Choyce could proceed IFP on appeal,
based presumably on his allegation in his Motion to Proceed In
Forma Pauperis that he is still under imminent danger of serious
3
Neither we nor our sister circuits have articulated the
basis for our jurisdiction to review grants of leave to proceed
IFP on appeal. However, we have held, without addressing its
jurisdiction to do so, that a court of appeals may review the
denial of leave to appeal IFP, see Baugh v. Taylor, 117 F.3d 197,
199-202 (5th Cir. 1997), and at least one other circuit has held
that a denial of IFP status is reviewable under 28 U.S.C. § 1291
as a final decision of a district court, see, e.g., O’Keefe v.
Wilson, No. 96-56203, 1998 WL 476433, at *1 (9th Cir. 1998)
(citing O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990)).
Despite the lack of explicit authority for our jurisdiction to
review grants of leave to appeal IFP, we revoked in Baños the
district court’s grant of leave to proceed IFP on appeal after
determining that the district court examined as of the wrong time
the prisoner-appellant’s claim that he was in imminent danger of
serious physical injury. See Baños, 144 F.3d 884-85. We did not
set out the jurisdictional basis for our review of the district
court’s order. See id.
6
physical injury. We cannot say with certainty that the
magistrate judge erred, but there is something of an incongruity
between the magistrate judge’s finding that Choyce was not in
imminent danger of serious physical injury at the time his
lawsuit was dismissed and the magistrate judge’s implicit
determination that Choyce was in such danger when he filed his
motion to proceed IFP on appeal. See Baños, 144 F.3d at 884
(noting that the lower court’s “determination that § 1915(g) bars
[the prisoner] from proceeding IFP in a civil action seems
incongruous with the grant of leave to appeal IFP”). Of course,
we recognize that these findings are not necessarily
inconsistent, because they were made as of different points in
time. Nevertheless, the magistrate judge should, on remand,
address the potential inconsistency between her rulings.4
III. CONCLUSION
Accordingly, we VACATE the magistrate judge’s order granting
IFP status on appeal and REMAND for reconsideration in the light
of this opinion.
4
The magistrate judge may also wish then to reexamine her
ruling dismissing the complaint insofar as it is based on a
determination that the relevant time for assessing imminent
danger was the date of her dismissal order rather than the date
of filing the complaint as Baños requires, see 144 F.3d at 884-
85, as well as in light of the computation error observed in note
2 above.
7