United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 1998 Decided June 12, 1998
No. 96-5166
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. 95cv01735)
Robert D. Wick, appointed by the court, argued the cause
as amicus curiae on behalf of appellant, with whom Alan A.
Pemberton was on the briefs.
Johnny Ray Chandler, appearing pro se, was on the brief.
Andrew J. Morris, with whom Jo Anne Robinson, Interim
Corporation Counsel, Charles L. Reischel, Deputy Corpora-
tion Counsel, Lutz Alexander Prager, Assistant Deputy Cor-
poration Counsel, and Lawrence S. Robbins were on the brief,
for appellees. Mary L. Wilson, Assistant Corporation Coun-
sel, entered an appearance for appellees.
Before Ginsburg and Tatel, Circuit Judges, and Buckley,
Senior Circuit Judge.
Opinion for the court filed by Senior Judge Buckley.
Buckley, Senior Judge: In this case we decide two issues:
first, whether section 804(d) of the Prison Litigation Reform
Act of 1995 applies to appeals pending on the date that the
Act took effect; and second, whether an inmate states a claim
upon which relief may be granted when he alleges that a
District of Columbia Department of Corrections officer
threatened to have him killed and that Department of Correc-
tions officials failed to respond to his complaints concerning
the threat.
I. Background
A.Statutory Scheme
Section 804 of the Prison Litigation Reform Act of 1995
("PLRA" or "Act"), Title VIII of the Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Pub. L. No. 104-
134, s 804, 110 Stat. 1321-66, 1321-73 (1996), amended 28
U.S.C. s 1915 (1994), which authorized courts to waive the
payment of initial filing fees and to permit a plaintiff to
proceed in forma pauperis ("IFP") upon submission of an
"affidavit that he [was] unable to pay such costs or give
security therefor." 28 U.S.C. s 1915(a) (1994). Once permit-
ted by a district court to proceed in that status, the plaintiff
was entitled to take an appeal IFP so long as the district
court did not "certif[y] in writing that [the appeal] [wa]s not
taken in good faith." Id. Because Congress had concluded
that prisoner litigants were abusing the statute by flooding
the courts with meritless claims, see Tucker v. Branker, __
F.3d ___, ___, 1998 WL 232792 at *1 (D.C. Cir. May 12, 1998),
section 804 established new standards for the grant of IFP
status to prisoners, as opposed to other litigants. The PLRA
was signed into law on April 26, 1996.
As amended by section 804, section 1915 now provides that
a prisoner who wishes to initiate a court proceeding must
assume liability for the entire cost of the filing fee unless its
imposition would "prohibit[ ] [him] from bringing a civil action
or appealing a ... judgment." 28 U.S.C. s 1915(b)(1), (4)
(Supp. 1997). A prisoner seeking to proceed IFP must
submit a statement of all his assets as well as a certified copy
of his prison trust fund account for the six-month period
immediately preceding the filing of his complaint or notice of
appeal. Id. s 1915(a)(1), (2). If he qualifies for IFP, the
prisoner will be required to pay an "initial partial filing fee"
that is computed on the basis of the information in his
prisoner's account. Id. s 1915(b)(1). The prisoner is then
required to pay the balance in monthly installments. Id.
s 1915(b)(2), (b)(3). If, however, a prisoner has filed, while
incarcerated, three or more cases that have been dismissed
for being frivolous or malicious or for failing to state a claim
upon which relief could be granted, he may not proceed IFP,
id. s 1915(g), and must therefore pay the entire fee on filing.
An indigent prisoner otherwise subject to subsection (g) may
nevertheless proceed IFP when he is "under imminent dan-
ger of serious physical injury." Id.
B.Factual and Procedural History
In August 1995, appellant Johnny Ray Chandler, a District
of Columbia prisoner held at the Occoquan Correctional
Facility in Lorton, Virginia ("Lorton"), filed a pro se com-
plaint alleging that Lorton officials had violated a number of
his constitutional rights. He sought both prospective injunc-
tive relief and monetary damages. See 28 U.S.C. s 1983.
Coincident with filing his complaint, Chandler also moved to
proceed IFP. As liberally construed by the district court, his
complaint alleged that Corporal Brenda Brooks, a D.C. cor-
rectional officer stationed at Lorton, violated his Eighth
Amendment rights by threatening to have him killed and that
the Department of Corrections ("Department") violated both
the Eighth Amendment and his Fifth Amendment due pro-
cess rights when it ignored his administrative complaints.
The district court granted Chandler's motion to proceed IFP
and later dismissed his complaint for failure to state a claim.
See Fed. R. Civ. P. 12(b)(6).
Chandler timely filed his notice of appeal on April 22, 1996.
Although the notice is broad enough to reach the district
court's dismissal of both his Fifth Amendment and Eighth
Amendment claims, we will only address the latter because
Chandler's appellate brief fails to mention his due process
claim, which is therefore forfeited. See Terry v. Reno, 101
F.3d 1412, 1415 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431
(1997) ("We ... address only the arguments appellant[ ] h[as]
briefed").
On June 14, 1996, the Department filed a motion requesting
that we either summarily affirm the district court judgment
on the ground that Chandler had failed to pay his docketing
fee in violation of subsection (g) or order him to pay the fee.
We denied the motion for summary affirmance and consoli-
dated consideration of the Department's alternative request
with the hearing on the merits of Chandler's appeal. We also
appointed an amicus curiae to present arguments on Chan-
dler's behalf.
II. Analysis
A.Applicability of Section 1915(g) to Appeals Pending at the
Time of the PLRA's Effective Date
Congress did not specify the date on which the PLRA
would take effect. The Supreme Court long ago noted that,
absent a statutory instruction to the contrary, a bill becomes
law when signed by the President or, in the event he fails to
sign it, ten days following its passage by both houses of
Congress. See Louisville v. Savings Bank, 104 U.S. (14 Otto)
469, 476-79 (1881); see also U.S. Const. art. I, s 7, cl. 2.
President Clinton signed the PLRA on April 26, 1996; ac-
cordingly, it took effect on that date, which was four days
after Chandler had filed his appeal. We must now determine
whether subsection (g), which was added to section 1915 by
the PLRA, applies to appeals filed before April 26.
As we explained above, section 1915 generally concerns the
procedures by which a plaintiff may proceed IFP. Subsec-
tion (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 [i.e., IFP] if the prisoner has, on 3 or more
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. s 1915(g) (Supp. 1997).
If we assume for purposes of analysis that (as the Depart-
ment maintains) Chandler, while imprisoned, has had at least
three prior claims dismissed for one of the reasons cited in
subsection (g), whether he is thereby prohibited from pro-
ceeding IFP will depend on whether the phrase "appeal a
judgment" means "file an appeal," as advocated by Chandler,
or "prosecute an appeal," as proposed by the Department. If
the Department is correct, subsection (g) applies to all ap-
peals pending on April 26, 1996, and Chandler is foreclosed
from proceeding with his appeal without paying the applicable
fee. The circuits that have considered this question are in
conflict. Compare Adepegba v. Hammons, 103 F.3d 383,
386-87 (5th Cir. 1996) (holding that application of section
1915(g) to appeals filed prior to April 26 is not impermissibly
retroactive) with Cannell v. Lightner, --- F.3d ----, 1998
WL 227644 at *2 (9th Cir. May 8, 1998); Abdul-Wadood v.
Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996) ("Section 1915(g)
governs bringing new actions or filing new appeals ... rather
than the disposition of existing cases."); White v. Gregory, 87
F.3d 429, 430 (10th Cir.), cert. denied, 117 S. Ct. 528 (1996);
see also Garcia v. Silbert, --- F.3d ----, 1998 WL 190514 at
*1 (10th Cir. Apr. 22, 1998) (holding that section 1915(g) does
not apply to suit pending before district court when the
PLRA took effect).
We hold that because subsection (g) is applied at the time
that a prisoner files his appeal rather than throughout the
course of the proceeding, it is inapplicable to Chandler. The
parties' lengthy discussion of retroactivity is therefore irrele-
vant. While the phrase "appeal a judgment" may appear
ambiguous when examined in isolation, we must read those
words in the context of the rest of section 1915 (all of which
deals with proceedings IFP) in order to determine their
statutory meaning. See Jarecki v. G.D. Searle & Co., 367
U.S. 303, 307 (1961) ("The maxim noscitur a sociis, that a
word is known by the company it keeps, while not an inescap-
able rule, is often wisely applied where a word is capable of
many meanings in order to avoid the giving of unintended
breadth to the Acts of Congress."). Read in concert with the
rest of section 1915, "appeal a judgment" in subsection (g)
plainly refers to the initiation of an appeal. The Depart-
ment's contrary reading suffers two fatal shortcomings: first,
it would be at odds with the meaning of the phrase as it is
used elsewhere in section 1915; and second, it would cause
subsection (g) to operate in different ways depending on
whether the prisoner was filing a complaint or an appeal.
First, subsection 1915(g) states that a prisoner may not
"bring a civil action or appeal a judgment" IFP if, while
imprisoned, he has had three cases dismissed for certain
enumerated reasons. 28 U.S.C. s 1915(g). Two other sub-
sections use the same "bring a civil action or appeal a
judgment" formulation, see id. s 1915(a)(2), (b)(4), while a
third applies to prisoners who "bring[ ] a civil action or file [ ]
an appeal." Id. s 1915(b)(1) (emphasis added). The Depart-
ment seizes on the distinction between the references to an
appeal in subsections (b)(1) and (g) to argue that Congress
intended the phrase "appeal a judgment" to refer to some-
thing other than the filing of an appeal. While superficially
seductive, this argument does not carry its weight.
Subsection (b)(1) provides that "if a prisoner brings a civil
action or files an appeal in forma pauperis, the prisoner shall
be required to pay the full amount of a filing fee." Id.
(emphasis added.) As the Seventh Circuit noted in Thurman
v. Gramley, 97 F.3d 185, 187 (7th Cir. 1996), the italicized
words identify the dispositive events that trigger the obli-
gation to pay the filing fee. We now compare that subsection
with subsection (a)(2), which states that "[a] prisoner seeking
to bring a civil action or appeal a judgment [IFP] ... shall
submit a certified copy of [his prison] trust fund account
statement...." Id. s 1915(a)(2) (emphasis added). Again,
the italicized words define the dispositive events that give rise
to an obligation. It should be self-evident that "appeal a
judgment" in this subsection is equivalent to "file an appeal"
because the reason a prisoner seeking to proceed IFP must
submit this financial information is to enable a court to
determine the minimum initial payment he will be required to
make in order to initiate his appeal. See id. s 1915(b)(1). If
there were any doubt as to the matter, it is put to rest by the
requirement in the balance of subsection (a)(2) that the
certified statement be "for the 6-month period immediately
preceding the filing of the complaint or notice of appeal ...."
Id. (emphasis added.)
The same conclusion is required by a careful reading of
subsection (b)(4), which provides:
In no event shall a prisoner be prohibited from bringing
a civil action or appealing a civil or criminal judgment for
the reason that the prisoner has no assets and no means
by which to pay the initial partial filing fee.
Id. s 1915(b)(4). Because an appellant is required to pay the
filing fee "[u]pon the filing of a[ ] ... notice of appeal," Fed.
R. App. P. 3(e), it should be obvious that "appealing a ...
judgment," in subsection (b)(4), refers to the initiation of an
appeal. This same conclusion is compelled by the interplay
between subsections (b)(1) and (b)(4) because the latter
serves to override the former's requirement that a prisoner
pay at least a portion of the fee at the time of filing.
In the absence of any provision of the statute mandating
such a contradiction, to read the phrase "appeal a judgment"
in subsection (g) to mean something other than what it means
in subsections (a)(2) and (b)(4) is nonsensical. As the Su-
preme Court has observed, "there is a natural presumption
that identical words used in different parts of the same act
are intended to have the same meaning." Atlantic Cleaners
& Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932).
Second, subsection (g) states that a prisoner may not
"bring a civil action or appeal a judgment" IFP when he has
had three cases dismissed for any of the enumerated reasons.
28 U.S.C. s 1915(g). As Amicus argues, and the Department
does not contest, the phrase "bring a civil action" means to
initiate a suit. Cf. Heckler v. Chaney, 470 U.S. 821, 833
(1985) (using the phrases "bring" a suit and "file" a suit
interchangeably); Dunlop v. Bachowski, 421 U.S. 560, 575
n.11 (1975) (same). In the prosecution of a civil action,
therefore, subsection (g) plainly applies only at the time an
indigent prisoner files his complaint with the district court.
The Department's reading of the phrase "appeal a judgment,"
however, would require continuous application of subsection
(g) throughout the prosecution of an appeal. Section 1915
does not otherwise distinguish between trials and appeals,
and the Department offers no reason why Congress would
have wanted to treat them differently in this instance. Be-
cause we can think of none, we conclude that Congress did
not intend so strange a result.
In light of the above, we hold that the phrase "appeal a
judgment" in subsection (g) refers to the initiation of an
appeal. Because Chandler filed his appeal prior to the effec-
tive date of the PLRA, he retains the IFP status he secured
before the district court and may so proceed before us. See
Fed. R. App. P. 24(a). We now consider the merits of his
appeal.
B.Adequacy of Chandler's Pleading that his Eighth Amend-
ment Rights Were Violated
Chandler alleged in his complaint that Corporal Brooks
"made a threat against [his] life." Chandler Compl. at 3. In
papers submitted in his opposition to the Department's mo-
tion for dismissal, Chandler elaborated that Corporal
Brooks's threat had caused him "psychological damage" and
that his fear that it would be carried out caused him to have
"[n]ightmares and [to] wak[e] up in a frantic sweat." Fur-
thermore, Chandler claimed that the failure of Lorton offi-
cials to transfer him to another facility, or otherwise to
respond to his administrative complaints, left him vulnerable
to attack and created an ongoing risk of injury. See Chan-
dler Compl. at 4. At this stage of the proceedings, we must
"accept [Chandler's] factual allegations as true and draw all
inferences in [his] favor." Harris v. Ladner, 127 F.3d 1121,
1123 (D.C. Cir. 1997) (citations omitted).
The Eighth Amendment bars the infliction of "cruel and
unusual punishments." U.S. Const. amend. VIII. The Su-
preme Court has recognized two categories of prisoner cases
as actionable under the amendment: complaints regarding
prisoners' conditions of confinement, see, e.g., Estelle v. Gam-
ble, 429 U.S. 97 (1976) (holding that allegations of deliberate
failure to provide adequate medical care state a claim under
the Eighth Amendment), and those alleging excessive use of
force, see, e.g., Whitley v. Albers, 475 U.S. 312 (1986) (review-
ing amount of force that prison guards may use to put down
riot). See also Farmer v. Brennan, 511 U.S. 825, 835 (1994)
(" 'application of the deliberate indifference standard is inap-
propriate' ... when 'officials stand accused of using excessive
physical force.' " (citations omitted)). To prevail in a case
alleging unconstitutional conditions of confinement, a prisoner
must show that the government official "kn[ew] of and disre-
gard[ed] an excessive risk to inmate health or safety," id. at
837 (1994); to state a claim of excessive use of force, the
prisoner must prove that a government official acted " 'mali-
ciously and sadistically for the very purpose of causing
harm,' " see Whitley, 475 U.S. at 320-21, and that the conse-
quent injury was more than de minimis, see Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992). See generally Babcock v.
White, 102 F.3d 267, 273 (7th Cir. 1996) (discussing the
differing standards of proof applicable to these two causes of
action). Chandler has pled both deliberate indifference and
excessive force. See Chandler Compl. at 3.
The district court's memorandum opinion does not reveal
whether the court read Chandler's complaint to allege exces-
sive force, deliberate indifference, or both. In articulating
the applicable legal standard, however, the court referred
only to cases concerning a prisoner's conditions of confine-
ment. See Mem. Op. at 7 (citing Farmer, 511 U.S. 825, and
Wilson v. Seiter, 501 U.S. 294, 297 (1991)). The court stated
that "[a] verbal threat is not 'sufficiently serious' to qualify as
cruel and unusual punishment" and then held that Chandler's
complaint failed to state a claim because "one isolated threat
is not 'sufficiently serious' " to implicate Eighth Amendment
rights. Mem. Op. at 7. Because the court found Chandler's
failure to plead sufficient injury dispositive, it did not consider
whether, as alleged, the prison officials had been culpable of
threatening Chandler or failing to address his complaints
concerning those threats.
We exercise de novo review over the district court's dis-
missal of Chandler's claim. See Harris v. Ladner, 127 F.3d
1121, 1123 (D.C. Cir. 1997). Dismissal for failure to state a
claim is appropriate only if it "appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957) (footnote omitted).
We note at the outset that verbal threats, without more,
may be sufficient to state a cause of action under the Eighth
Amendment. See Hudson, 503 U.S. at 16 (Blackmun, J.,
concurring). As Justice Blackmun observed,
[i]t is not hard to imagine inflictions of psychological
harm--without corresponding physical harm--that might
prove to be cruel and unusual punishment.... [T]he
Eighth Amendment prohibits the unnecessary and wan-
ton infliction of "pain," rather than "injury." ... "Pain"
in its ordinary meaning surely includes a notion of psy-
chological harm.
Id. Although a verbal threat standing alone is generally
inadequate to state a constitutional claim, see Hopson v.
Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992), such a
threat could violate the Eighth Amendment if the resulting
harm were sufficiently severe, see Freitas v. Ault, 109 F.3d
1335, 1338 (8th Cir. 1997) (recognizing that prisoner could
bring section 1983 action for physical and psychological harm
resulting from sexual harassment).
Chandler's allegation does not fall into any of the categories
of verbal threat that courts have heretofore recognized as
potentially violative of the Eighth Amendment--namely, the
repeated threat of physical harm, see Doe v. Welborn, 110
F.3d 520, 524 (7th Cir. 1997) (stating that prisoner did not
show "the kind of extreme and officially sanctioned psycholog-
ical harm that might support a claim for damages under the
Eighth Amendment"), sexual harassment, see Freitas, 109
F.3d at 1338, or a threat accompanied by conduct supporting
the credibility of the threat, see, e.g., Northington v. Jackson,
973 F.2d 1518, 1522 (10th Cir. 1992) (describing how parole
officer held gun to prisoner's head while threatening to kill
him). This case therefore raises an issue of first impression:
Do a prisoner's allegations that a guard threatened to have
him killed and that prison officials ignored his consequent
administrative complaints state claims upon which relief could
be granted?
Though novel, the facts underlying Chandler's complaint
are similar to those that confronted the Fourth Circuit in
Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir. 1978). In that
case, the court reversed the district court's dismissal of a
prisoner's section 1983 suit alleging that a guard had threat-
ened to have him killed because he had a suit pending against
the prison. The Fourth Circuit held that the combination of
the guard's threat and the prisoner's subsequent transfer
from unsupervised work to a work detail supervised by armed
guards sufficed to state a cause of action under section 1983.
See id. at 1348. In dicta, the court noted that if the guards
"intentionally plac[ed] Hudspeth in fear for his life if he
pressed his court actions[,] that would inflict such suffering as
to amount to unconstitutional punishment." Id.
Unlike the district court, we are not persuaded that the
injuries described in Chandler's complaint were necessarily
insufficient to state a claim under the Eighth Amendment. If
we credit his allegations, Corporal Brooks's threat put Chan-
dler in imminent fear of his life because she was in a position
to carry it out. Depending on the gravity of the fear, the
credibility of the threat, and on Chandler's psychological
condition, the threat itself could have caused more than de
minimis harm and therefore could have been sufficient to
state a claim of excessive use of force. These issues cannot
be resolved without more factual development. Furthermore,
the risk that Corporal Brooks's threat might be carried out, if
left unaddressed (a matter upon which the district court made
no findings), could amount to "a sufficiently substantial 'risk
of serious damage to [Chandler's] future health,' " Farmer,
511 U.S. at 843, to be actionable as an unconstitutional
condition of confinement. Finally, Chandler pleads with suffi-
cient particularity that Corporal Brooks and the other Lorton
officials acted with intent to harm him or in knowing disre-
gard of his mental anguish and risk of being killed. Further
inquiry may reveal that the correctional officers lacked the
necessary intent, but such a conclusion is unwarranted at this
stage of the litigation.
While the district court may conclude, upon further consid-
eration of a more developed record, that Chandler's claims
lack the necessary factual or legal bases, it cannot be said
that his complaint "fail[s] ... to state a claim upon which
relief can be granted." Fed. R. Civ. P. 12(b)(6). The district
court's decision to dismiss Chandler's claim was therefore
premature, and its judgment must be reversed.
III. Conclusion
For the foregoing reasons, 28 U.S.C. s 1915(g) does not
apply to Chandler's appeal. Furthermore, because the dis-
trict court based its dismissal of the portion of Chandler's
complaint alleging Eighth Amendment violations solely upon
the erroneous premise that a verbal threat can "never"
violate the Eighth Amendment, its judgment is
Reversed.