Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2007

Lopez v. US Dept Justice
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2409




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"Lopez v. US Dept Justice" (2007). 2007 Decisions. Paper 1216.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1216


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CLD-157                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 06-2409
                                  ________________

                                  JOHNNY LOPEZ,

                                                     Appellant

                                            v.

                US DEPARTMENT OF JUSTICE; PETER T. DALLEO
                    ____________________________________

                    On Appeal From the United States District Court
                               For the District of Delaware
                             (D. Del. Civ. No. 06-cv-00190)
                      District Judge: Honorable Gregory M. Sleet
                    _______________________________________


 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 15, 2007

                   Before: Rendell, Smith and Jordan, Circuit Judges


                                 (Filed: April 25, 2007)


                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Johnny Lopez appeals from the District Court’s April 11, 2006 order denying his

motion for leave to proceed in forma pauperis. We have jurisdiction pursuant to 28
U.S.C. § 1291, and review issues of statutory construction de novo. See Abdul-Akbar v.

McKelvie, 

, 311 (3d Cir. 2001). We will summarily vacate the District

Court’s order and remand for further proceedings.

       The District Court denied Lopez’s motion on the grounds that he had “three

strikes” under 28 U.S.C. § 1915(g) and had not alleged that he was in “imminent danger

of serious physical injury” at the time he filed his complaint. One of the “strikes” on

which the District Court relied, however, was the dismissal of a complaint that was then

on appeal in this Court. See Lopez v. Howard, D. Del. Civ. No. 06-cv-00107, C.A. No.

06-2361. A dismissal does not qualify as a “strike” for § 1915(g) purposes unless and

until a litigant has exhausted or waived his or her appellate rights. See Jennings v.

Natrona County Det. Ctr. Med. Facility, 

, 780 (10th Cir. 1999); Adepegba v.

Hammons, 

, 387-88 (5th Cir. 1996). Lopez thus had only two “strikes”

when the District Court denied his motion, and the District Court erred in requiring him to

demonstrate that he was under imminent danger of serious physical injury before

proceeding in forma pauperis at that time. See 28 U.S.C. § 1915(g).

       The fact that the Court has since affirmed the dismissal in Lopez v. Howard, see

C.A. No. 06-2361, Slip Op. (3d Cir. March 9, 2007), does not change that result. By its

terms, § 1915(g) governs only the circumstances under which a prisoner may “bring” a

civil action in forma pauperis, which means that its impact must be assessed at the time a

prisoner files his or her complaint. See 

; Gibbs v. Ryan,

, 162-63 (3d Cir. 1998). Thus, only the strikes actually earned up to that

                                             2
time are relevant. The statute does not authorize courts to revoke in forma pauperis status

if a prisoner later earns a third strike. See 

(explaining that

Congress “limited the ‘three strikes’ provision to an inmate’s ability to ‘bring’ an action.

Congress could have tied the ‘three strikes’ bar to an inmate’s ability to maintain an

action. It did not do so.”).

       Accordingly, we will summarily vacate the District Court’s order and direct the

District Court to evaluate Lopez’s motion for leave to proceed in forma pauperis in light

of this opinion. See 3d Cir. LAR 27.4 (1997); 3d Cir. IOP 10.6.




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