REVISED, March 16, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
NO. 97-30547
________________________
JOHN W. PATTON,
Plaintiff-Appellant,
versus
JEFFERSON CORRECTIONAL CENTER; HARRY LEE, Sheriff of Jefferson
Parish; ERNEST V. RICHARDS, IV, Judge, Division B;
KAREN MORGEN, Assistant District Attorney; PAT HAND, III,
Assistant District Attorney; and SUSAN D. RUSHING, Lt. Detective,
JPSO,
Defendants-Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
________________________________________________________________
March 13, 1998
Before JONES and SMITH, Circuit Judges, and FITZWATER, District
Judge.*
FITZWATER, District Judge:
We decide in this appeal whether dismissal of a 42 U.S.C. §
1983 action as frivolous is a strike within the meaning of the
“three strikes” provision of the Prison Litigation Reform Act of
1995 (“PLRA”), 28 U.S.C. § 1915(g), when the suit is also construed
to allege a habeas claim and is in part dismissed without prejudice
for failure to exhaust state court remedies. Because we hold that
*
District Judge of the Northern District of Texas, sitting by
designation.
it is a countable strike, and because under this interpretation of
§ 1915(g) plaintiff had three strikes prior to filing this appeal,
we conclude that he is precluded from appealing in forma pauperis
(“IFP”), and we dismiss.2
I
Plaintiff John W. Patton (“Patton”), Texas prisoner # 751103,
brought this § 1983 action, alleging that his constitutional rights
were violated when prison officials placed him in administrative
segregation after they were advised that he had written a
threatening letter.3 Patton sued six defendants, including a
sheriff, a state judge, two assistant district attorneys, and Susan
D. Rushing (“Detective Rushing”), a detective employed by the
Jefferson Parish Sheriff’s Office. He maintained that Detective
Rushing and another individual had fabricated the threatening
correspondence for the purpose of interfering with child custody
proceedings in which he was involved. According to Patton, he
missed a court hearing because he had been placed in lockdown.
The district court dismissed Patton’s claims against all
defendants except Detective Rushing. The magistrate judge
recommended that the action against the detective be
administratively closed, without prejudice to reopening the case
following Patton’s release from Texas custody. The district judge
2
We reserve the larger question whether, under the plain
language of § 1915(g), a frivolous habeas claim by itself counts as
a strike for purposes of § 1915(g).
3
At the time he filed suit, Patton was an inmate confined at
the Jefferson Parish Correctional Center located in Gretna,
Louisiana.
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adopted the recommendation, stayed the case against Detective
Rushing, and administratively closed the action subject to Patton’s
right to reopen it within 30 days of his release. Patton appealed,
and we vacated and remanded the indefinite stay order for
reconsideration. Patton v. Jefferson Correctional Ctr., No. 95-
31055, 106 F.3d 397 (5th Cir. Jan. 13, 1997) (unpublished opinion)
(per curiam).4
Following remand, the district court revoked Patton’s IFP
status. The court concluded that because Patton had filed at least
five actions that had been dismissed as frivolous, he was barred by
§ 1915(g) from proceeding IFP. The court held that Patton’s
complaint against Detective Rushing would be dismissed with
prejudice unless Patton paid the appropriate filing fee within 30
days. Patton objected to the order and did not pay the fee. The
district court overruled Patton’s objections and dismissed his
lawsuit for failure to prosecute. Patton later moved for leave to
pay a partial filing fee and to continue his case in the district
court IFP. The district court construed the motion as a notice of
appeal and a motion to proceed IFP on appeal. Based on its prior
decision revoking Patton’s IFP status pursuant to the PLRA’s “three
strikes” provision, the court denied Patton’s requests for leave to
appeal IFP and to pay a partial filing fee.
4
We remanded for reconsideration in light of Muhammad v.
Warden, Baltimore City Jail, 849 F.2d 107, 112-13 (4th Cir. 1988),
in which the Fourth Circuit held that an indefinite stay should
only be considered as a last resort after all other alternatives,
such as securing the prisoner’s presence at trial and trial by
deposition, have been rejected. Id., slip op. at 1.
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Patton appeals the orders dismissing his action and denying
him leave to appeal. He also moves for leave to appeal IFP and to
appeal upon payment of a partial filing fee.
II
The PLRA contains a so-called “three strikes” provision, which
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.
28 U.S.C. § 1915(g). We must decide whether Patton already had
three strikes against him prior to filing the instant appeal.
One of the necessary strikes is easily discernible from the
record. In Patton v. New Orleans Police Dep’t, Civil Action No.
93-3074 (E.D. La. Nov. 17, 1993), Patton alleged that he had been
the victim of an armed robbery. He sued two New Orleans police
officers pursuant to § 1983, alleging that they violated his rights
by failing to arrest the perpetrators. At the time he filed suit,
Patton was incarcerated in a county detention center in Texas.
Patton contended that the robbers attempted to intimidate him by
contacting one of the officers and advising him that Patton was on
probation in Texas. The officer then contacted Texas officials,
obtained a copy of an outstanding arrest warrant, and arrested
Patton when he appeared at the police station. Patton was also
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told that he had no right to lodge a criminal complaint because of
his probation and criminal record.
The district court dismissed the suit as frivolous pursuant to
former § 1915(d)5 because the decision whether to file criminal
charges against an individual does not give rise to § 1983
liability and because Patton had not alleged a policy, pattern, or
practice of such inaction on the part of New Orleans as a
municipality. Patton did not appeal the dismissal, and it became
a countable strike. See Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996) (“We accordingly read dismissals under the [PLRA]
to include only those for which an appeal has been exhausted or
waived.”). It is of no consequence that this strike (or, for that
matter, the others that we address in this opinion) occurred prior
to the effective date of the PLRA. See id. at 387 (applying “three
strikes” provision to pre-PLRA district court dismissal of § 1983
action as frivolous); accord Tierney v. Kupers, 128 F.3d 1310, 1311
(9th Cir. 1997); Keener v. Pennsylvania Bd. of Probation & Parole,
128 F.2d 143, 144 (3d Cir. 1997) (per curiam)(collecting cases).
III
We next consider whether a § 1983 action that is in part
dismissed as frivolous, and is in part construed as a habeas claim,
which is dismissed without prejudice for failure to exhaust state
court remedies, is a countable strike.
A
5
Before passage of the PLRA, § 1915(d) authorized the
dismissal of frivolous or malicious actions. Carson v. Johnson,
112 F.3d 818, 819 n.1 (5th Cir. 1997).
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In Patton v. Mamoulides, Civil Action No. 94-3311-I (E.D. La.
Nov. 16, 1994), Patton brought a § 1983 action against a district
attorney and an assistant district attorney, alleging that they had
denied him his constitutional right to a speedy trial. The
district court6 examined Patton’s complaint sua sponte to ascertain
whether it should be construed as a petition for habeas corpus.
Because Patton was attacking the fact and length of his
confinement, the court concluded that he was seeking both habeas
and § 1983 relief. Based on its determination that Patton had not
exhausted his state court remedies, the court concluded that his
habeas claim should be dismissed without prejudice for failure to
exhaust.
The court dismissed Patton’s § 1983 claim as frivolous
pursuant to former § 1915(d). Applying Heck v. Humphrey, 512 U.S.
477 (1994), as construed in Boyd v. Biggers, 31 F.3d 279 (5th Cir.
1994) (per curiam), the court held that the action must be
dismissed because defendants were entitled to absolute
prosecutorial immunity.7 “Plaintiff’s § 1983 complaint against
6
Following de novo review, the district judge adopted as his
own opinion the report and recommendation of the magistrate judge.
All references to the holdings of the district court are to rulings
of the magistrate judge adopted by the district judge.
7
This approach was proper. See Littles v. Board of Pardons &
Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995)(per curiam)(holding
that even if complaint is subject to dismissal under Heck, it
remains appropriate for district court to resolve question of
immunity before reaching Heck analysis); Krueger v. Reimer, 66
F.3d 75, 76 (5th Cir. 1995)(per curiam)(holding that despite
applicability of Heck, district court may consider doctrine of
absolute immunity as threshold matter in making § 1915(d)
frivolousness determination)
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defendants is frivolous under the broadest reading [of his
complaint] since the allegations clearly lack an arguable basis in
law.” (footnote and citation omitted). Patton did not appeal the
dismissal.
In Patton v. Machado, No. SA-95-CV-672 (W.D. Tex. 1995),
aff’d, No. 95-50785, 82 F.3d 414 (5th Cir. Mar. 12,
1996)(unpublished opinion) (per curiam), Patton, at the time a
Texas state prisoner, brought a § 1983 suit against a state judge
and two assistant district attorneys. He had been convicted for
cocaine possession, for which he received deferred adjudication.
The State of Texas later moved to adjudicate Patton’s guilt after
he was convicted in Louisiana on a misdemeanor charge of stalking
and telephone harassment. Following a hearing, the state court
granted the motion.
While awaiting sentencing, Patton filed a § 1983 action in
federal court, seeking only injunctive relief in the form of a stay
of the criminal proceedings and the recusal of the state judge. In
response to a questionnaire, Patton alleged that the state judge
and prosecutors had conspired with non-parties to deprive him of
his rights. He also complained that the judge had violated his
rights by certain acts and omissions committed during or in
connection with the adjudication proceeding, and that the assistant
district attorneys had infringed his rights by several acts taken
in prosecuting him.
The magistrate judge recommended dismissal of the claims
against the state judge and prosecutors based on judicial and
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prosecutorial immunity, respectively. Relying on Heck, the
magistrate judge concluded that Patton could not collaterally
attack his conviction in a § 1983 action, and recommended that his
request for injunctive relief be denied.
The magistrate judge also recommended that Patton be
sanctioned for filing a frivolous suit.8 Patton had previously
filed three civil rights suits in that federal court, two of which
he had voluntarily dismissed after the defendants answered, and a
third (against his probation officer) that the magistrate judge had
recommended be dismissed as frivolous. The magistrate judge noted
that he had already advised Patton that he could be sanctioned for
filing frivolous cases. The district judge adopted the
recommendation, dismissed the case as frivolous, and imposed the
suggested sanctions.
On appeal, we affirmed the dismissal of the complaint as
frivolous, “although in part for reasons other than those stated by
the district court,” and affirmed the district court’s order
imposing sanctions. Machado, 95-50785, slip op. at 2. We held
that because Patton’s complaint sought only injunctive relief
challenging the constitutionality of his confinement, it
necessarily was construed as a petition for habeas corpus, and that
Patton must exhaust state remedies before seeking federal court
relief. Id. We concluded that “[t]he district court’s reliance on
8
He recommended that the district judge impose court costs and
warn Patton that further frivolous lawsuits could result in more
severe monetary sanctions, an order barring Patton from filing
other lawsuits without obtaining leave from a district or circuit
judge, or a combination of these sanctions.
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the doctrine of absolute immunity was inappropriate because
Patton’s complaint had sought injunctive relief only, not damages.”
Id. Insofar as Patton’s complaint sought to set aside his
conviction or sentence, we modified the dismissal to be without
prejudice based on his failure to exhaust state remedies. Id.
B
We hold that the dismissals of Patton’s § 1983 actions in
Mamoulides and Machado are strikes within the meaning of §
1915(g).9
In Mamoulides Patton sued two prosecutors pursuant to § 1983,
contending they were liable for denying him his constitutional
right to a speedy trial. The district court dismissed the § 1983
claim with prejudice, finding it was frivolous based on
prosecutorial immunity. An unappealed dismissal as frivolous is
unquestionably a strike within the meaning of § 1915(g).
That the district court also construed Patton’s complaint as
seeking habeas relief, and then dismissed the claim without
prejudice for failure to exhaust state court remedies, does not
alter this conclusion. The court did not find that the habeas
claim was non-frivolous. It simply performed the required function
of determining whether Patton’s § 1983 complaint contained both
habeas and § 1983 claims, in which case “the district court should
separate the claims and decide the § 1983 claims.” Orellana v.
Kyle, 65 F.3d 29, 31 (5th Cir. 1995)(per curiam)(addressing § 1983
9
Section 1915(g) uses the term “prior occasions” rather than
“strikes.” We use the vernacular associated with this section of
the PLRA.
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action challenging parole review procedures); see Cook v. Texas
Dep’t of Criminal Justice Transitional Planning Dep’t, 37 F.3d 166,
168 (5th Cir. 1994) (noting distinction between claims that must
initially be pressed by writ of habeas corpus and those that may be
brought pursuant to § 1983); Serio v. Members of La. St. Bd. of
Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987) (holding that “in
instances in which a petition combines claims that should be
asserted in habeas with claims that properly may be pursued as an
initial matter under § 1983, and the claims can be separated,
federal courts should do so, entertaining the § 1983 claims.”)
Although the dismissal without prejudice of the habeas claim does
not equate to a finding of frivolousness, it more closely parallels
such a conclusion than it does a determination of non-
frivolousness. It is a considered judgment that Patton asserted in
his § 1983 suit a habeas claim that was premature as a matter of
law.
The district court’s dismissal in Machado is also a strike.
We affirmed the dismissal of the § 1983 suit as frivolous and the
sanction order. “It is straightforward that affirmance of a
district court dismissal as frivolous counts as a single ‘strike.’”
Adepegba, 103 F.3d at 387.
That we modified the dismissal to be without prejudice,
insofar as Patton’s complaint sought to set aside his conviction or
sentence, does not remove the § 1983 dismissal from the purview of
the PLRA’s “three strikes” provision. In Machado, as in
Mamoulides, there was no determination that Patton’s habeas claim
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was colorable. Machado held that Patton’s complaint, in which he
sought only injunctive relief, necessarily was construed as a
petition for habeas relief, that he must exhaust state remedies
before seeking such relief in federal court, and that insofar as
his complaint was an attempt to set aside his conviction or
sentence, the dismissal must be modified to be without prejudice
based on failure to exhaust. Machado, No. 95-50785, slip op. at 2.
Nor do we think it proper to excuse the Machado dismissal from
the “three strikes” bar based on the fact that we affirmed “in part
for reasons other than those stated by the district court,” and
held that the district court’s reliance on the doctrine of absolute
immunity was “inappropriate.” We explicitly affirmed the dismissal
of the § 1983 suit as frivolous. The suit was so frivolous that
despite our adoption of reasoning different from that of the
district court, and our modification of the dismissal to be in part
without prejudice, we affirmed the district court’s sanction order.
In any event, we did not reverse the district court’s determination
that Patton’s § 1983 action should be dismissed as frivolous. Cf.
Adepegba, 103 F.3d at 387 (holding that “reversal of a dismissal as
frivolous nullifies the ‘strike.’”).
C
There is no compelling reason to excuse Patton’s frivolous §
1983 actions in Mamoulides and Machado from the reach of the PLRA’s
“three strikes” proviso simply because the cases included
unexhausted habeas claims. It is more faithful to the intent of
the PLRA to classify these dispositions as strikes. “Congress
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enacted PLRA with the principal purpose of deterring frivolous
prisoner litigation by instituting economic costs for prisoners
wishing to file suits.” Lyon v. Krol, 127 F.3d 763, 764 (8th Cir.
1997). Were we to hold otherwise, litigious prisoners could
immunize frivolous lawsuits from the “three strikes” barrier by the
simple expedient of pleading unexhausted habeas claims as
components of § 1983 suits. We doubt that Congress intended that
§ 1915(g) could be so facilely circumvented by the creative joinder
of actions.
IV
Patton maintains in his motion for leave to appeal that the
district court’s order denying him such leave violated §
1915(b)(4), which provides that “[i]n 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.” We
disagree. Section 1915(b)(4) pertains to the initial partial
filing fee requirement of § 1915(b)(1). Moreover, it is subject to
the “three strikes” rule of § 1915(g), which applies to § 1915 as
a whole.
In his supporting affidavit, Patton asserts that he is not
barred by § 1915(g) from bringing this appeal because “he has no
causes dismissed as frivolous since the passage of the PLRA.” This
argument is foreclosed by Adepegba, which applies the PLRA to cases
dismissed prior to its enactment. Adepegba, 103 F.3d at 387. He
also points out that his present action challenges an
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unconstitutional lockdown. In Carson v. Johnson, 112 F.3d 818 (5th
Cir. 1997), however, we held that the fact that the plaintiff was
challenging administrative segregation did not entitle him to a
waiver of the filing fees. Id. at 821.
Patton has presented no basis to avoid the insuperable bar of
§ 1915(g). He may, of course, file appeals after paying the
required filing fee, as must other litigants. He may also litigate
actions that involve imminent danger of serious physical injury.
Adepegba, 103 F.3d at 388; Carson, 112 F.3d at 823.
* * *
Prior to the date Patton brought the present appeal, he
already had three strikes against him. We therefore DENY his
motion to proceed IFP and DISMISS the appeal.
DISMISSED.
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