United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 3, 2007
Charles R. Fulbruge III
Clerk
No. 04-10419
JOSEPH E JACKSON
Plaintiff - Appellant
v.
GARY JOHNSON, Director, Texas Department of Criminal
Justice; VICKI HALLMAN, Regional Director, Parole
Division; MIKE MILES, Facility Administrator,
Correctional Services Corporation; LEO HANSEN,
Case Manager, Correctional Services Corporation
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas, Fort Worth
No. 4:04-CV-183-A
Before KING, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:
Plaintiff-appellant Joseph E. Jackson, a mandatory
supervisee of the Pardons and Paroles Division of the Texas
Department of Criminal Justice, who resides at a privately
operated halfway house, seeks to appeal the district court’s
judgment dismissing his action on the basis that he is a prisoner
who has accumulated three strikes under the Prisoner Litigation
Reform Act. Specifically, he requests leave to proceed in forma
pauperis on appeal. Jackson contends that he is not a
“prisoner,” as that term is defined by the Prisoner Litigation
Reform Act, and that he therefore should have been granted leave
to proceed in forma pauperis in the district court. For the
reasons that follow, we DENY Jackson’s motion to proceed in forma
pauperis on appeal and dismiss the appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-appellant Joseph E. Jackson avers that he was
imprisoned pursuant to an April 1989 conviction and that he was
released from prison to mandatory supervision1 on November 12,
2003. Jackson now resides at a Fort Worth, Texas halfway house
operated by the Correctional Services Corporation, a privately
owned vendor under contract with the state of Texas. His
residence at the halfway house appears to be a condition of his
mandatory supervision.2 Jackson states that he is locked up in
1
Mandatory supervision is “the release of an eligible
inmate sentenced to the institutional division so that the inmate
may serve the remainder of the inmate’s sentence not on parole
but under the supervision of the pardons and paroles division.”
TEX. GOV’T CODE ANN. § 508.001(5) (Vernon 1998). With certain
exceptions, Texas law requires “the release of an inmate who is
not on parole to mandatory supervision when the actual calendar
time the inmate has served plus any accrued good conduct time
equals the term to which the inmate was sentenced.” Id.
§ 508.147(a). Parole, by contrast, is discretionary. Coleman v.
Dretke, 395 F.3d 216, 219 n.1 (5th Cir. 2004). But once an
inmate is released to mandatory supervision, he is considered to
be on parole. TEX. GOV’T CODE ANN. § 508.147(b); Coleman, 395 F.3d
at 219 n.1.
2
Jackson asserts that he resides at the halfway house
because, “[u]pon mandated release, . . . the State could not
legally keep [him] incarcerated but also could not legally parole
him to sleep on the streets.” He says he was therefore “allowed
to temporarily reside at a halfway house until such time as he
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the facility 16 to 24 hours per day and is prohibited from
leaving the facility except to go to or to search for employment.
Jackson brought this action under 42 U.S.C. §§ 1983 and
1985. He complains that while residing in the halfway house his
access to the courts has been diminished in violation of the
First and Fourteenth Amendments. He also complains that his
treatment differs from that of other mandatory supervisees; he
asserts that his release from prison was mandatory and that he
therefore is entitled to the same liberties afforded mandatory
could acquire a place of his own or find a relative with whom to
reside.” But the Texas Attorney General filed an amicus curiae
brief in which he avers that Jackson must reside at the halfway
house as a condition of his release. Jackson’s mandatory-
supervision certificate is not part of the record, and we
therefore do not know exactly what conditions were imposed on him
during the term of his mandatory supervision.
For purposes of this appeal, however, we may presume that
the reason Jackson resides at the halfway house is that his
residence there is a condition of his mandatory supervision since
Jackson filed a § 1983 action rather than a habeas petition. A
prisoner may file a § 1983 action to challenge the conditions of
confinement, whereas a challenge to the fact of confinement is
properly presented in a habeas petition. Cook v. Tex. Dep’t of
Criminal Justice Transitional Planning Dep’t, 37 F.3d 166, 168
(5th Cir. 1994). Therefore, to the extent that Jackson argues
that the state may not detain him in the halfway house because
his residence there is voluntary and not a condition of his
release, the proper vehicle for his challenge is a habeas
petition rather than a § 1983 action. The PLRA’s three-strikes
provision does not bar prisoners from proceeding in forma
pauperis in a habeas action, even if the prisoner has accumulated
three strikes. Carson v. Johnson, 112 F.3d 818, 820 (5th Cir.
1997) (citing United States v. Cole, 101 F.3d 1076, 1077 (5th
Cir. 1996)).
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supervisees who are released to the general public.3
Jackson moved to proceed in forma pauperis (“IFP”) in the
district court. The district court determined that Jackson had
accumulated three strikes under the Prisoner Litigation Reform
Act (“PLRA”) and that there was no evidence he was in imminent
danger of serious physical injury. Accordingly, pursuant to 28
U.S.C. § 1915(g), the district court denied Jackson’s motion to
proceed IFP and dismissed his suit. Jackson moved for
reconsideration, arguing that since he resides at a halfway house
he is not a “prisoner” within the definition of the PLRA; the
district court denied this motion as well.
Jackson appealed the district court’s dismissal of his
action. He also moved to proceed IFP on appeal. The district
court denied Jackson’s request for leave to proceed IFP on appeal
for the same reason it denied his request to proceed IFP in the
district court. A prior panel of this court held in abeyance
Jackson’s request to proceed IFP on appeal because it concluded
that his request and his appeal were inextricably intertwined and
because it found no controlling authority concerning whether a
halfway-house resident is a prisoner under the PLRA.
We now consider Jackson’s request to proceed IFP on appeal,
which turns on the question whether the PLRA’s definition of
3
When the district court dismissed Jackson’s claims, it
also ordered that his complaint be stricken from the record. Our
summary of Jackson’s complaint is therefore based on Jackson’s
statement of the case in his brief.
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“prisoner” encompasses Jackson.
II. DISCUSSION
Jackson does not dispute that he has had three previous
cases dismissed as frivolous——i.e., that he has three strikes
under the PLRA. Instead, he contends that the PLRA’s three-
strikes provision does not apply to him because he is not a
“prisoner” since he has been released from prison on mandatory
supervision and now resides in a halfway house. Contrary to
Jackson’s argument, we conclude that he is a “prisoner” as that
term is defined in the PLRA and that he is thus barred from
proceeding IFP.
“We review the district court’s interpretation of the PLRA
de novo.” Ruiz v. Estelle, 161 F.3d 814, 819 (5th Cir. 1998)
(citing Spacek v. Mar. Ass’n, 134 F.3d 283, 288 (5th Cir. 1998)).
“In interpreting a statute, our objective is to give effect to
the intent of Congress. As always, we begin with the language of
the statute itself.” Id. (quoting Stiles v. GTE Sw. Inc., 128
F.3d 904, 907 (5th Cir. 1997) (citation omitted)).
The PLRA’s three-strikes provision bars prisoners from
proceeding IFP in a civil action or in an appeal of a judgment in
a civil action if, while incarcerated, the prisoner has had three
prior actions or appeals dismissed for being frivolous or
malicious or for failure to state a claim, unless the prisoner is
in imminent danger of serious physical injury. 28 U.S.C.
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§ 1915(g). The PLRA defines “prisoner” as “any person
incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.” Id.
§ 1915(h).
Thus, to determine whether Jackson is a “prisoner” within
the meaning of the PLRA, we must answer two questions: (1)
whether Jackson is “incarcerated or detained in any facility” and
(2) if so, whether it is as a result of his criminal conviction.
We first consider whether Jackson is being confined in a
facility. The Texas Attorney General filed an amicus curiae
brief in which he discusses a number of cases that hold that a
person who has been released from incarceration (e.g., a parolee)
is not confined for PLRA purposes.4 For example, in Kerr v.
Puckett, 138 F.3d 321 (7th Cir. 1998), the Seventh Circuit held
4
The Attorney General cites to the following cases: Janes
v. Hernandez, 215 F.3d 541 (5th Cir. 2000); Greig v. Goord, 169
F.3d 165, 167 (2d Cir. 1999) (per curiam); Doe v. Washington
County, 150 F.3d 920 (8th Cir. 1998); and Kerr v. Puckett, 138
F.3d 321 (7th Cir. 1998).
The Attorney General does not take a firm position as to
whether Jackson is a “prisoner.” But he does maintain that even
if Jackson is a “prisoner,” he cannot successfully challenge the
conditions of his confinement under 42 U.S.C. § 1997e because he
has been released from confinement. We do not address this
argument because it is not before us; but we do note that the
Seventh Circuit rejected the Attorney General’s position in
Witzke v. Femal, 376 F.3d 744, 753 (2004) (concluding that
halfway house resident is “confined in any jail, prison, or other
corrections facility” under § 1997e).
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that a parolee is not a PLRA “prisoner.” The Kerr court
interpreted the definition of “prisoner” in 42 U.S.C. § 1997e(h),
a separate PLRA provision worded exactly the same as § 1915(h).
Relying on the text of the statute, the court held that
“prisoner” does not encompass parolees: “The statutory language
does not leave wriggle room; a convict out on parole is not a
‘person incarcerated or detained in any facility who is . . .
adjudicated delinquent for[] violations of . . . the terms and
conditions of parole.’” Id. at 323.
But in Kerr and in the other cases cited by the Attorney
General, it appears that the individual was released from
incarceration to the general public. In none of these cases was
the prisoner compelled to reside in a halfway house or any other
facility after his release from incarceration. By contrast,
although Jackson has been released from confinement in prison,
his release was not to the general public but was rather to a
different form of confinement, albeit with certain additional
liberties. It is clear that Jackson is being “detained in any
facility” since he is locked up in the halfway house 16 to 24
hours a day and since he may leave the halfway house only for
very limited purposes. Cf. Witzke v. Femal, 376 F.3d 744, 752
(7th Cir. 2004) (determining that halfway-house resident who
could leave the facility only during the day and was locked
inside at night was confined for PLRA purposes).
The more difficult question is whether Jackson’s confinement
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at the halfway house is as a result of his criminal conviction.
In Ojo v. INS, we held that a detainee of the Immigration and
Naturalization Service (“INS”) is not a “prisoner” within the
PLRA. 106 F.3d 680, 683 (5th Cir. 1997). The detainee in that
case entered the United States on a student visa but was later
convicted of drug-trafficking crimes and sentenced to a term of
imprisonment. Id. at 681. He was released from prison into the
custody of the INS, which immediately initiated deportation
proceedings. Id. We acknowledged that the detainee had been
convicted of and sentenced for a crime and that his criminal
violations in a sense caused his INS detention because they gave
the INS cause to deport him. Id. at 682. We concluded, however,
that this but-for causation was not sufficient. We reasoned that
the detainee was not a “prisoner” because his detention was for a
violation of immigration law rather than criminal law and because
immigration violations were not mentioned in § 1915(h). Id.;
accord LaFontant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998)
(“[A]n incarcerated alien facing deportation is not a ‘prisoner’
for purposes of the PLRA.”).
Similarly, other circuits have concluded that individuals in
civil confinement are not “prisoners” within the PLRA. For
example, the Eighth Circuit has held that a mental patient
confined in a state hospital as a result of being found not
guilty of a crime by reason of insanity was not a § 1915(h)
“prisoner.” See Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th
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Cir. 2001). And the Ninth Circuit has concluded that an
individual who was released from prison into civil detention
under California’s Sexually Violent Predators Act was not a
“prisoner.” See Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir.
2000). The Page court held that the PLRA applied only to
individuals who “are detained as a result of being accused of,
convicted of, or sentenced for criminal offenses.” Id. at 1140.
The court reasoned that the detainee in that case “ceased being a
‘prisoner’ when he was released from the custody of the
Department of Corrections” and that “[h]is current detention
[was] not part of the punishment for his criminal conviction but
rather a civil commitment for non-punitive purposes.” Id.;
accord Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002)
(holding that individual civilly detained as a sexually violent
predator is not a § 1915(h) “prisoner” because the PLRA
“appl[ies] only to persons incarcerated as punishment for a
criminal conviction”).
To the extent that Jackson’s confinement must be part of
“punishment for his criminal conviction,” as opposed to
confinement “for non-punitive purposes,” Page, 201 F.3d at 1140
(emphasis added) in order for him to be a § 1915(h) “prisoner,”
one could plausibly argue that he is not a “prisoner” because his
time in the halfway house is not intended to punish him but
rather to provide him housing and to assist him in reintegrating
into society. Jackson was released from the custody of the
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Institutional Division of the Texas Department of Criminal
Justice to mandatory supervision under the Pardons and Paroles
Division. See TEX. GOV’T CODE ANN. §§ 493.004, 508.001(5). The
Pardons and Paroles Division “supervise[s] and reintegrate[s]
felons into society after release from confinement.” Id.
§ 493.005. Halfway houses are used to provide a “smoother
transition from incarceration to supervised release” to low-risk
inmates prior to their being released to parole or mandatory
supervision, id. § 508.118, and to “provide housing, supervision,
counseling, personal, social, and work adjustment training, and
other programs” to releasees who are required to serve a period
in a halfway house as a condition of release to parole or
mandatory supervision, id. § 508.119.5
But we do not believe that the purpose of the
confinement——i.e., punishment versus non-punitive purposes——alone
is controlling. Rather, § 1915(h) differentiates between
“criminal” detainees——i.e., individuals detained pursuant to an
accusation or conviction of a violation of a criminal statute, or
relatedly a violation of parole or probation——and other
detainees. See Ojo, 106 F.3d at 682 (concluding that INS
detainee is not § 1915(h) “prisoner” because detention is not for
5
Although § 508.119 refers to “community residential
facilities,” whereas § 508.118 refers to “halfway houses,” both
sections refer to facilities that are commonly referred to as
“halfway houses.” See, e.g., Op. Tex. Att’y Gen. No. GA-0064, at
9 (2003) (citing to both §§ 508.118 and 508.119 as provisions
relating to halfway houses).
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violation of criminal law).6
Even if Jackson’s time at the halfway house is for primarily
non-punitive purposes, he is nonetheless a “prisoner” within
§ 1915(h)’s definition because his confinement is as a result of
his criminal violation. Jackson resides at the halfway house
under the supervision of the Pardons and Paroles Division, which
is a division of the Texas Department of Criminal Justice. The
Pardons and Paroles Division confines some mandatory supervisees
in halfway houses as a component of Texas’s overall scheme of
imprisoning and reforming felons and then reintegrating them into
society. The Division’s authority to do so derives from sections
of Subtitle G, Title 4 of the Texas Government Code, which is
entitled “Corrections.” And the maximum term of a mandatory
supervisee’s confinement in a halfway house is the amount of time
remaining on the sentence for his criminal violation. See TEX.
GOV’T CODE ANN. § 508.148. Finally, while an inmate is on
mandatory supervision, he is “serv[ing] the remainder of [his]
sentence,” id. § 508.001(5), even though he is no longer in
6
This reading of § 1915(h) is consistent with the holdings
of both Page and Troville, which were based primarily on the
distinction between criminal confinement and civil detention.
See Page, 201 F.3d at 1140 (“California’s Sexually Violent
Predators Act provides not for criminal sanctions, but for . . .
civil commitment . . . .”); Troville, 303 F.3d at 1260 (“A civil
detainee simply does not fall under § 1915’s definition of
‘prisoner[]’ . . . .”).
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prison.7
Because Jackson is “detained in any facility” for a criminal
conviction, he is a “prisoner” as that term is defined by the
PLRA. And since Jackson has accumulated three strikes, he is
precluded from proceeding IFP in this case. See § 1915(g).
III. CONCLUSION
For the foregoing reasons, Jackson’s motion to proceed in
forma pauperis on appeal is DENIED; APPEAL DISMISSED.
7
The detainee in Troville was confined as a sexually
violent predator pursuant to Florida’s Jimmy Ryce Act, FLA. STAT.
§§ 394.910-394.932. Troville, 303 F.3d at 1258. In contrast to
the facts of this case, sexually violent predators in Florida are
committed under the terms of that act to the custody of the
Department of Children and Family Services (after any period of
incarceration for criminal violations is completed). FLA. STAT.
§ 394.917(2). The provisions permitting involuntary civil
commitment of sexually violent predators are part of chapter 394,
title 29 of Florida Statutes, which is entitled “Mental Health.”
And the term of confinement is “until such time as the person's
mental abnormality or personality disorder has so changed that it
is safe for the person to be at large.” Id.
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