Pettus v. Morgenthau

07-0395-pr
Pettus v. Morgenthau

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term 2007
5
6
7 (Argued: June 3, 2008 Decided: January 28, 2009)
8
9 Docket No. 07-0395-pr
10
11 _____________________________________
12
13 JAMES PETTUS,
14 Plaintiff-Appellant,
15
16 -v.-
17
18 ROBERT MORGENTHAU, CHARLES HYNES, PEOPLE OF
19 THE CITY AND STATE OF NEW YORK, RANDOLPH CLARK,
20 A.D.A. FRANK DUBIS, GLEN GOORD, THERESA KNAPP,
21 ANN AND ANY JOHN DOES, DONALD SELSKY, CAPT. RICHARDS,
22 Lt. McGEEVER, CAPT. WENDERLICH, JAMES ESGROW,
23 KENNETH McLAUGHLIN,
24 Defendants-Appellees.
25 _____________________________________
26
27 Before: McLAUGHLIN, LIVINGSTON, Circuit Judges,
28 and GERSHON, District Judge.*
29
30 Plaintiff, a prisoner, brought a lawsuit under 42 U.S.C. § 1983 challenging

31 various aspects of the procedures that resulted in his confinement at New York’s

32 Southport Correctional Facility. The United States District Court for the

*
The Honorable Nina Gershon, District Judge, United States District Court for the
Eastern District of New York, sitting by designation.
 1 Western District of New York, Richard J. Arcara, C.J., denied plaintiff’s request

2 to proceed in forma pauperis and dismissed the complaint, applying the “three-

3 strikes” rule of 28 U.S.C. § 1915(g) and finding that plaintiff did not meet the

4 exception to the “three-strikes” rule permitting a prisoner to proceed in forma

5 pauperis when he is under imminent danger of serious physical injury. We

6 conclude that plaintiff’s complaint was properly dismissed.

7 Affirmed.

8 WANDA D. BROWN,** JONATHAN D. HENRY ** (Jon
9 Romberg, Esq., of counsel), Newark, N.J., for Amicus Curiae
10 Seton Hall University School of Law Center for Social Justice
11 in Support of Plaintiff-Appellant.
12
13 MARTIN A. HOTVET, Assistant Solicitor General (Andrea
14 Oser, Deputy Solicitor General, Barbara D. Underwood,
15 Solicitor General, on the brief), Albany, N.Y., for Amicus
16 Curiae Andrew M. Cuomo, Attorney General of the State of
17 New York, in Support of Defendants-Appellees.
18
19
20 LIVINGSTON, Circuit Judge:

21 Plaintiff-appellant James Pettus is a prisoner in New York State,

22 where he is serving a sentence of six to twelve years for grand larceny in the

23 third degree, welfare fraud in the third degree, offering a false instrument for

24 filing in the first degree, and forgery in the second degree. He is also a frequent

**
Appearing pursuant to 2d Cir. R. 46(e).

2
 1 litigant in this Circuit, who appears on this Court’s docket sheet as an appellant,

2 movant, or petitioner in over sixty matters and in countless matters before the

3 district courts. See, e.g., Pettus v. Brown, No. 9:06-cv-152, 2007 WL 1791220, at

4 *2-3 (N.D.N.Y. June 19, 2007) (collecting cases); Pettus v. Goord, No. 9:04-cv-

5 0253 (LEK/RFT), 2006 WL 2806551, at *1 n.1 (N.D.N.Y Sept. 28, 2006) (same);

6 Pettus v. Horn, No. 04 Civ. 459 (WHP), 2005 WL 2296561, at *1 n.1 (S.D.N.Y.

7 Sept. 21, 2005) (same). Because three or more of his lawsuits while he has been

8 detained have been dismissed as “frivolous [or] malicious or [for] fail[ure] to

9 state a claim upon which relief may be granted,” Pettus is ineligible by statute

10 to file in forma pauperis (“IFP”) “unless [he] is under imminent danger of serious

11 physical injury.” 28 U.S.C. § 1915(g).

12 Pettus filed this suit in the United States District Court for the

13 Western District of New York, asserting two principal claims: (1) that the People

14 of the City and State of New York and the judges and district attorneys involved

15 in his criminal trial did not follow proper procedures and sentenced him harshly,

16 irrationally, without evidence, and out of racial animus; and (2) that various

17 New York State Department of Correctional Services (“DOCS”) employees who

18 were involved with adjudicating alleged disciplinary infractions lodged against

19 him at the Elmira Correctional Facility or who transferred him from Elmira to

3
 1 the Southport Correctional Facility, a so-called supermax facility for especially

2 violent offenders, were biased and incorrectly classified him. Pettus’s complaint

3 also alleges that at Southport he has been surrounded by hostile, aggressive,

4 violent inmates who beat, rob, assault, extort, and sexually abuse him, and that

5 he has been denied access to needed medication. However, the complaint does

6 not seek any relief specifically related to the abusive conditions Pettus allegedly

7 is enduring at Southport. Pettus does not appear to name anyone at Southport

8 as a defendant, instead naming defendants, with one possible exception, involved

9 in his original criminal trial or in the subsequent disciplinary proceedings

10 brought against him at Elmira.

11 The district court (Arcara, C.J.) held that Pettus did not qualify for

12 § 1915(g)’s “imminent danger” exception permitting so-called three-strike

13 litigants to proceed IFP because there was no nexus between the claims Pettus

14 sought to pursue in this action and the imminent danger of serious physical

15 injury alleged in his complaint. Pettus appealed, and we appointed amicus

16 curiae counsel to argue in support of his position. The Attorney General of the

17 State of New York submitted a letter brief, as amicus curiae, on behalf of the

18 various named defendants (who were not served before the complaint was

19 dismissed). We agree with the district court that § 1915(g) allows a three-strikes

4
 1 litigant to proceed IFP only when there exists an adequate nexus between the

2 claims he seeks to pursue and the imminent danger he alleges. For the following

3 reasons, we conclude that such a nexus exists when the three-strikes litigant

4 seeks to redress an imminent danger of serious physical injury that is fairly

5 traceable to a violation of law that the complaint asserts.

6 * * *

7 We begin, as we must, with the plain text of the Prison Litigation

8 Reform Act (“PLRA”). United States v. Gayle, 342 F.3d 89, 92 (2d Cir. 2003)

9 (“Statutory construction begins with the plain text and, if that text is unam-

10 biguous, it usually ends there as well.”). Prisoners who do not have the

11 financial resources to prepay docketing fees may proceed IFP. See 28 U.S.C.

12 § 1915(a)-(b). However, the PLRA contains a “three-strikes” rule that bars

13 prisoners from proceeding IFP if they have a history of filing frivolous or

14 malicious lawsuits unless the exception for imminent danger applies. The

15 statute reads as follows:

16 In no event shall a prisoner bring a civil action
17 or appeal a judgment in a civil action or
18 proceeding under this section if the prisoner has,
19 on 3 or more prior occasions, while incarcerated
20 or detained in any facility, brought an action or
21 appeal in a court of the United States that was
22 dismissed on the grounds that it is frivolous,
23 malicious, or fails to state a claim upon which

5
 1 relief may be granted, unless the prisoner is
2 under imminent danger of serious physical
3 injury.
4
5 28 U.S.C. § 1915(g). This Court has previously held that for a prisoner to

6 qualify for the imminent danger exception, the danger must be present when

7 he files his complaint – in other words, a three-strikes litigant is not excepted

8 from the filing fee if he alleges a danger that has dissipated by the time a

9 complaint is filed. Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002); see

10 also Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (en banc);

11 Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Banos v. O’Guin,

12 144 F.3d 883, 884-85 (5th Cir. 1998) (per curiam); Ashley v. Dilworth, 147

13 F.3d 715, 717 (8th Cir. 1998) (per curiam). But we have not previously

14 addressed the question whether there must exist some nexus between the

15 danger the petitioner alleges and the claims he asserts.

16 The amicus supporting Pettus argues that, by its terms, § 1915(g)’s

17 “imminent danger” exception imposes no nexus requirement. In its view, as

18 long as the prisoner claims to be under imminent danger of serious physical

19 injury, he can proceed IFP on any claim. We disagree. This position disre-

20 gards our duty to consider the text and the context of the statute. The amicus

21 essentially is asking us to construe the exception clause verbatim ac

6
 1 litteratim, ignoring the exception’s place in the overall statutory framework.

2 But when construing the plain text of a statutory enactment, we do not

3 construe each phrase literally or in isolation. Rather, we attempt to ascertain

4 how a reasonable reader would understand the statutory text, considered as a

5 whole. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The

6 plainness or ambiguity of statutory language is determined by reference to

7 the language itself, the specific context in which that language is used, and

8 the broader context of the statute as a whole.”); County of Nassau v. Leavitt,

9 524 F.3d 408, 414 (2d Cir. 2008) (“Statutory construction is a holistic

10 endeavor. In interpreting statutes, this Court reads statutory language in

11 light of the surrounding language and framework of the statute.” (quoting

12 Field Day, LLC v. County of Suffolk, 463 F.3d 167, 177 (2d Cir. 2006))

13 (internal quotation marks omitted)); Saks v. Franklin Covey Co., 316 F.3d

14 337, 345 (2d Cir. 2003) (“The text’s plain meaning can best be understood by

15 looking to the statutory scheme as a whole and placing the particular

16 provision within the context of that statute.”).

17 As we have previously noted, “Congress adopted the Prison

18 Litigation Reform Act with the principal purpose of deterring frivolous

19 prisoner lawsuits and appeals.” Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.

7
 1 1997). Once three of an indigent prisoner’s lawsuits have been dismissed as

2 frivolous, malicious, or for failure to state a claim upon which relief may be

3 granted, the prisoner must pay the standard filing fee if he wishes to file

4 additional lawsuits. In the context of this statutory scheme, the imminent

5 danger exception is designed to provide “a safety valve for the ‘three strikes’

6 rule.” Malik, 293 F.3d at 563 (emphasis added) (quoting Abdul-Akbar, 239

7 F.3d at 315) (internal quotation marks omitted). Its unmistakable purpose is

8 to permit an indigent three-strikes prisoner to proceed IFP in order to obtain

9 a judicial remedy for an imminent danger. Under the amicus’s proposed

10 reading of the statute, however, an indigent prisoner with a history of filing

11 frivolous complaints could, by merely alleging an imminent danger, file an

12 unlimited number of lawsuits, paying no filing fee, for anything from breach

13 of a consumer warranty to antitrust conspiracy. No reasonable reader would

14 understand the self-evidently narrow “imminent danger” exception to sweep

15 so broadly. Congress, after all, does not “hide elephants in mouseholes.”

16 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).

17 Instead, we adopt the view of the district court that there must be

18 a nexus between the imminent danger a three-strikes prisoner alleges to

19 obtain IFP status and the legal claims asserted in his complaint. We thus

8
 1 confront the question of what this nexus might be. Cf. United States v.

2 Santos, 541 F.3d 63, 69 (2d Cir. 2008) (observing, with regard to a different

3 statute, that a “direct and substantial nexus” test, in the absence of further

4 elaboration, was “too vague to give courts . . . sufficiently concrete guidance”).

5 By analogy to our ordinary standing rules, we think that the statute requires

6 that the prisoner’s complaint seek to redress an imminent danger of serious

7 physical injury and that this danger must be fairly traceable to a violation of

8 law alleged in the complaint.

9 The law of standing provides the most natural analogy for giving

10 content to the nexus requirement because the statute identifies a particular

11 injury-in-fact (i.e., the imminent danger of serious physical injury) that

12 Congress singled out for special protection. In the standing context, courts

13 have used the redressability and causation requirements as a means of

14 ensuring that there is an appropriate nexus between a plaintiff’s alleged

15 injury-in-fact and the claim for relief that the plaintiff wishes to assert. See,

16 e,g., Linda R.S. v. Richard D., 410 U.S. 614, 617-18 (1973) (finding that

17 “appellant has failed to allege a sufficient nexus between her injury and the

18 government action which she attacks” (emphasis added)); Flast v. Cohen, 392

19 U.S. 83, 102 (1968) (“[I]n ruling on standing, it is both appropriate and

9
 1 necessary . . . to determine whether there is a logical nexus between the

2 status asserted and the claim sought to be adjudicated.” (emphasis added)).

3 Standing concepts, moreover, have been prudentially employed to ensure that

4 a plaintiff’s claim is within the zone of interests that Congress intended to

5 protect by means of a particular statute – a question highly analogous to the

6 one presented here. Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S.

7 150, 153 (1970) (“The question of standing . . . concerns . . . the question

8 whether the interest sought to be protected by the complainant is arguably

9 within the zone of interests to be protected or regulated by the statute . . . in

10 question.”). Finally, standing, like the § 1915(g) analysis, is intended to be a

11 threshold issue at least tentatively decided at the outset of the litigation.

12 Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008) (“Standing

13 is ‘the threshold question in every federal case, determining the power of the

14 court to entertain the suit.’” (quoting Denney v. Deutsche Bank AG, 443 F.3d

15 253, 263 (2d Cir. 2006))); cf. Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir.

16 2003) (“[Section] 1915(g) is not a vehicle for determining the merits of a

17 claim.”).

18 We can presume that Congress legislated with these background legal

19 principles in mind. See, e.g., Nat’l Archives & Records Admin. v. Favish, 541

10
 1 U.S. 157, 169 (2004) (“We can assume Congress legislated against [the

2 relevant] background of law, scholarship, and history . . . .”). Section

3 1915(g)’s exception “can serve its role as an escape hatch for genuine

4 emergencies only if understood reasonably.” Lewis v. Sullivan, 279 F.3d 526,

5 531 (7th Cir. 2002). Absent some nexus between a complaint’s claims and its

6 allegation that a plaintiff is under imminent danger of serious physical harm,

7 the injury-in-fact that Congress so carefully excepted from the general

8 requirement that a three-strikes litigant pay his filing fees could go

9 unaddressed by the litigation – a result clearly contrary to the raison d’être of

10 the exception itself. When, in contrast, a complaint seeks to redress an

11 imminent danger that is fairly traceable to allegedly unlawful conduct

12 complained of in the pleading, the three-strikes litigant has shown that he

13 fits squarely within § 1915(g)’s “escape hatch” and that payment of a filing fee

14 should be excused. Cf. Warth v. Seldin, 422 U.S. 490, 498 (1975) (“In essence

15 the question of standing is whether the litigant is entitled to have the court

16 decide the merits of the dispute or of particular issues.”).

17 In sum, we hold that the complaint of a three-strikes litigant

18 must reveal a nexus between the imminent danger it alleges and the claims it

19 asserts, in order for the litigant to qualify for the “imminent danger”

11
 1 exception of § 1915(g). In deciding whether such a nexus exists, we will

2 consider (1) whether the imminent danger of serious physical injury that a

3 three-strikes litigant alleges is fairly traceable to unlawful conduct asserted

4 in the complaint and (2) whether a favorable judicial outcome would redress

5 that injury.1 The three-strikes litigant must meet both requirements in order

6 to proceed IFP. This inquiry is not identical to our ordinary standing inquiry,

7 but we believe it is sufficiently similar to afford guidance to courts

8 considering the nexus question.

9 Given that both causation and redressability are components of

10 § 1915(g)’s nexus requirement, a three-strikes prisoner cannot proceed IFP

11 against law enforcement personnel involved in his criminal trial to whom

1
We thus reject amici’s alternative contention that only “but for” cause
between an asserted illegality and an alleged imminent danger should be required. A “but
for” causation test would undermine the purpose of § 1915(g) by allowing a three-strikes
prisoner to proceed IFP against law enforcement officials or testifying victims who in some
sense were a “but for” cause of the prisoner being in prison but whose connection to the
actual imminent danger is remote. See 3 Richard J. Pierce, Jr., Administrative Law
Treatise § 16.5, at 1154 (4th ed. 2002) (“Every significant act has a nearly infinite set of
consequences as a result of the many complicated relationships documented by scientists
and economists. Courts must limit the causal inquiry in some way for standing
purposes. . . . [A] causal relationship is insufficient if it is insubstantial, remote, tenuous,
or speculative.”). Consequently, we employ the concept of “fairly traceable” in its ordinary
form, which requires more than mere “but for” causation.
We also reject amici’s contention that the canon of constitutional avoidance
requires us to construe this statute narrowly. We have previously upheld the three-strikes
rule against constitutional challenge, see Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir.
2007) (per curiam), and perceive no difficult constitutional questions in construing the
statute as we do today.

12
 1 prison conditions are not fairly traceable or in circumstances in which it is

2 speculative to assert that judicial relief will actually redress these allegedly

3 unlawful conditions. In Mr. Pettus’s case, we assume without deciding that

4 his allegations rise to the level of an imminent danger of serious physical

5 injury. The bulk of Pettus’s claims for relief are directed at asserted wrongs

6 — such as his allegedly improper prosecution and inmate classification —

7 that are much too attenuated from the imminent danger of serious physical

8 injury he alleges to conclude that this danger may fairly be traced back to the

9 asserted wrongs. See Bennett v. Spear, 520 U.S. 154, 167 (1997) (noting that

10 standing has not been established if the injury complained of is “the result of

11 the independent action of some third party not before the court” (citing Lujan

12 v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))). Even if Pettus were

13 entirely successful in pursuing these claims, moreover, the possibility that

14 the judicial relief he would receive would redress the imminent danger he

15 asserts is entirely speculative.

16 There is one possible exception to the preceding analysis. Pettus

17 names as a defendant Glenn Goord, the Commissioner of DOCS. His

18 complaint alleges that Pettus holds Goord responsible for “the hiring,

19 practices, policies, customs, screening, training, supervising, controlling and

13
 1 disciplining” of DOCS employees. The threatening conditions that Pettus

2 claims to face at Southport may be fairly traceable to Goord’s oversight of

3 DOCS, of which Southport is a part. Granted, the complaint is most

4 reasonably construed to assert that Goord failed to supervise and train the

5 personnel at Elmira who incorrectly classified Pettus, and not any Southport

6 personnel. But it perhaps could be argued that the complaint also seeks

7 redress for Goord’s supervision of Southport.

8 We need not decide this question, however, because even

9 assuming that Pettus is entitled to proceed IFP, at least with regard to this

10 aspect of his complaint, we still affirm the district court’s judgment of

11 dismissal. Pettus has failed to allege that Goord was personally responsible

12 for the conditions at Southport, which prevents Pettus from obtaining money

13 damages from Goord, the only form of relief he seeks. See Hayut v. State

14 Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003). There is no suggestion in the

15 complaint that Commissioner Goord had any personal involvement in the

16 conditions alleged to exist at Southport. To the extent that the complaint

17 attempts to assert a failure-to-supervise claim, moreover, it lacks any hint

18 that Goord acted with deliberate indifference to the possibility that his

19 subordinates would violate Pettus’s constitutional rights. See Poe v. Leonard,

14
 1 282 F.3d 123, 140 (2d Cir. 2002); cf. Iqbal v. Hasty, 490 F.3d 143, 166 (2d Cir.

2 2007) (suggesting that additional allegations of personal involvement may be

3 required to avoid dismissal if a plaintiff’s conclusory allegations of personal

4 involvement are not “plausible, without allegations of additional subsidiary

5 facts”), cert. granted sub nom. Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008).

6 Hence, we affirm the dismissal as against Goord because it fails to state a

7 claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)

8 (“Notwithstanding any filing fee, or any portion thereof, that may have been

9 paid, the court shall dismiss the case at any time if the court determines that

10 . . . the action or appeal . . . fails to state a claim on which relief may be

11 granted . . . .”).

12 We note that Pettus has other lawsuits pending in which he has

13 named prison officials as defendants and does seek relief for allegedly dangerous

14 conditions in prison. Today’s decision does not hinder Mr. Pettus from pursuing

15 these claims if they are properly presented in another action.2

16 Given our conclusion that Pettus’s complaint was properly dismissed,

2
Under an order issued last year and still outstanding (although not
applicable to this case, which predates the order), Pettus is not permitted to file any
appeals in this Circuit until he satisfies unpaid sanctions totaling $300. See Pettus v.
Brown, No. 08-3646-pr (2d Cir. Oct. 10, 2008). The district court has continued to accept
filings from Pettus, however.

15
1 both with regard to the bulk of its claims lacking any nexus to Pettus’s alleged

2 imminent danger of serious physical injury and with regard to the single claim

3 for which an appropriate nexus may have been established, we need not consider

4 whether the existence of one claim establishing such nexus would allow him to

5 proceed IFP on other, unrelated claims in the same complaint. At least one court

6 of appeals has answered this question, Andrews v. Cervantes, 493 F.3d 1047,

7 1053-55 (9th Cir. 2007), but we leave it for another day.

8 For the foregoing reasons, the judgment of the district court

9 dismissing Pettus’s complaint is AFFIRMED.

16