Filed: Jun. 02, 1997
Latest Update: Mar. 02, 2020
Summary: REVISED United States Court of Appeals, Fifth Circuit. No. 96-41003. Arthur X. CARSON, Plaintiff-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Defendant-Appellee. May 15, 1997. Appeal from the United States District Court for the Eastern District of Texas. Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges. JERRY E. SMITH, Circuit Judge: Texas state prisoner # 517349, Arthur Carson, proceeding pro se and in forma pauperis ("IFP"), appea
Summary: REVISED United States Court of Appeals, Fifth Circuit. No. 96-41003. Arthur X. CARSON, Plaintiff-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Defendant-Appellee. May 15, 1997. Appeal from the United States District Court for the Eastern District of Texas. Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges. JERRY E. SMITH, Circuit Judge: Texas state prisoner # 517349, Arthur Carson, proceeding pro se and in forma pauperis ("IFP"), appeal..
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REVISED
United States Court of Appeals,
Fifth Circuit.
No. 96-41003.
Arthur X. CARSON, Plaintiff-Appellant,
v.
Gary L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division, Defendant-Appellee.
May 15, 1997.
Appeal from the United States District Court for the Eastern
District of Texas.
Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Texas state prisoner # 517349, Arthur Carson, proceeding pro
se and in forma pauperis ("IFP"), appeals the construction of his
habeas corpus petition as a 42 U.S.C. § 1983 suit, its dismissal,
sanctions imposed upon him, and an order barring him from filing
further actions IFP. Concluding that his petition is properly
characterized as a § 1983 suit and that he is barred from
proceeding IFP by 28 U.S.C. § 1915(g), we dismiss the appeal.
I.
Carson alleges that he was placed in administrative
segregation on the basis of his criminal conviction and his
previous disciplinary offenses. He further states that the parole
board will not grant parole to prisoners in administrative
segregation. Finally, he claims that his placement is not reviewed
as often as prison policy requires.
1
Carson filed in the district court for a writ of habeas
corpus, contending that his placement in administrative segregation
violates the Double Jeopardy and Ex Post Facto Clauses of the
Constitution. The district court, adopting the recommendation of
the magistrate judge, held that Carson's complaint was properly
characterized as a civil rights suit under 42 U.S.C. § 1983 and
dismissed it as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).1 The
court then sanctioned Carson $250 for his frequent filing of
frivolous complaints and barred him from further filings under 28
U.S.C. § 1915(g).
The district court granted Carson leave to proceed IFP on
appeal. Pursuant to Jackson v. Stinnett, 102 F.3d 132, 136-37 (5th
Cir.1996), Carson has paid the partial filing fees required by 28
U.S.C. § 1915(a)-(b), as amended by the PLRA.
II.
A.
Section 804(c) of the PLRA added § 1915(g), which prohibits
a prisoner from proceeding IFP if he has had three actions or
appeals dismissed for frivolousness, maliciousness, or failure to
state a claim. See Adepegba v. Hammons, 103 F.3d 383, 385 (5th
Cir.1996). This provision often is referred to as the " "three
strikes' provision."
Id. It states:
1
Before the passage of the Prison Litigation Reform Act
("PLRA") of 1995, Title VIII of the Omnibus Consolidated
Rescissions and Appropriations Act of 1996, § 804(a), Pub.L. No.
104-134, 110 Stat. 1321 (1996) (to be codified at 28 U.S.C. §
1915), § 1915(d) authorized the dismissal of frivolous or malicious
actions.
2
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.
B.
In considering the effect of the "three strikes" provision, we
first must determine whether Carson's action falls under the PLRA's
definition of "a civil action or proceeding." This requires us to
determine (1) whether the PLRA applies to a habeas petition under
28 U.S.C. § 2254 and (2) whether Carson's action is properly
characterized as a habeas petition or a § 1983 suit.
The PLRA requirements do not apply to habeas actions under 28
U.S.C. § 2255. See United States v. Cole, 101 F.3d 1076, 1077 (5th
Cir.1996). We gave three reasons for this conclusion. First,
"habeas proceedings are often determined to be outside the reach of
the phrase "civil action.' "
Id. (quoting Santana v. United
States,
98 F.3d 752, 754-55 (3d Cir.1996)) (some internal
quotations marks omitted).
Second, we noted that Title I of the Antiterrorism and
Effective Death Penalty Act ("AEDPA") of 1996, §§ 101-108, Pub.L.
No. 104-132, 110 Stat. 1214, 1217-26 (1996) (to be codified at 28
U.S.C. § 2244-2266; FED. R.APP. P. 22), which became effective two
days before the PLRA did, contained separate procedures for
addressing abuses of the habeas process. We held that this fact
strongly suggests that Congress did not intend the PLRA to apply to
3
habeas petitions. See Cole, 101 F.3d at 1077 (quoting Reyes v.
Keane,
90 F.3d 676, 678 (2d Cir.1996)).
Finally, we recognized that applying the three strikes
provision to habeas petitions "would be contrary to a long
tradition of ready access of prisoners to federal habeas
corpus...." Id. (quoting Martin v. United States,
96 F.3d 853,
855-56 (7th Cir.1996)) (internal quotation marks omitted). We were
reluctant to find that Congress intended to end this longstanding
tradition absent more certain language.
All of these rationales apply with equal, if not greater,
force to 28 U.S.C. § 2254 petitions, which often are considered
something different from traditional civil actions. The AEDPA's
new procedures apply to habeas petitions reviewing state
convictions as well as those reviewing federal convictions. The
tradition of ready access to federal habeas relief is
well-established for state prisoners. Therefore, we conclude that
the new PLRA requirements do not apply to habeas petitions under §
2254.
C.
Carson states that the district court erred by construing his
habeas petition as a § 1983 suit. Because the PLRA does not apply
to habeas petitions under 28 U.S.C. § 2254, we must resolve this
issue before deciding whether Carson may continue to proceed IFP on
this appeal. If the district court erred, and Carson's suit was a
4
habeas suit, the PLRA does not apply, and Carson may proceed IFP.2
Generally, § 1983 suits are the proper vehicle to attack
unconstitutional conditions of confinement and prison procedures.
See Cook v. Texas Dep't of Criminal Justice Transitional Planning
Dep't, 37 F.3d 166, 168 (5th Cir.1994). A habeas petition, on the
other hand, is the proper vehicle to seek release from custody.
See Pugh v. Parish of St. Tammany,
875 F.2d 436, 439 (5th
Cir.1989).
The distinction is blurry, however, when, as here, a prisoner
challenges an unconstitutional condition of confinement or prison
procedure that affects the timing of his release from custody. We
have adopted a simple, bright-line rule for resolving such
questions. If "a favorable determination ... would not
automatically entitle [the prisoner] to accelerated release,"
Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.1995) (per curiam), cert.
denied, --- U.S. ----,
116 S. Ct. 736,
133 L. Ed. 2d 686 (1996), the
proper vehicle is a § 1983 suit.
According to Carson, reassignment from administrative
segregation would make him eligible for parole. He has not alleged
that such reassignment would automatically shorten his sentence or
lead to his immediate release. The parole decision still would be
within the discretion of the parole board.
This circumstance is indistinguishable from that in Cook.
2
Whether he could appeal at all without obtaining a
certificate of appealability, see 28 U.S.C. § 2253(c), as amended
by § 102 of the AEDPA, is another question, one which we do not
reach.
5
There, a prisoner challenged the parole board's procedure of
considering voided prior convictions in deciding whether to grant
parole. See Cook, 37 F.3d at 167. Because a successful suit
"would merely enhance eligibility for accelerated release" and thus
"has an indirect impact on the determination of whether a claimant
eventually receives parole," we held that the prisoner had brought
a § 1983 action.
Id. at 168.
Carson's suit is properly characterized as a § 1983 suit,
which is a civil action or proceeding within the meaning of the
PLRA. Accordingly, we must apply the new PLRA requirements to
Carson's appeal.
III.
A.
Carson argues that the "three strikes" provision of the PLRA
is unconstitutional because it blocks access to the courts and
discriminates against prisoners, presumably in violation of the Due
Process Clause, U.S. CONST. amend. V.3 We disagree.
B.
Section 1915(g) does not prevent a prisoner with three strikes
3
See Adarand Constructors, Inc. v. Pena, --- U.S. ----, ----,
115 S. Ct. 2097, 2108,
132 L. Ed. 2d 158 (1995) (stating that the Due
Process Clause guarantees equal protection). Carson also alleges
that the PLRA violates the separation-of-powers doctrine. He does
not explain this assertion, other than by stating that "congress
wrongly meddled with the judiciary." This is insufficient to
preserve this argument. See Cavallini v. State Farm Mut. Auto Ins.
Co.,
44 F.3d 256, 260 n. 9 (5th Cir.1995) (holding that "failure to
provide any legal or factual analysis of an issue results in
waiver"); United States v. Maldonado,
42 F.3d 906, 910 n. 7 (5th
Cir.1995) (reasoning that failure to do more than vaguely refer to
an issue constitutes waiver).
6
from filing civil actions; it merely prohibits him from enjoying
IFP status. He still has the right to file suits if he pays the
full filing fees in advance, just like everyone else.
Although the Constitution requires the waiver of filing fees
in criminal cases, see Mayer v. Chicago, 404 U.S. 189, 195-96,
92
S. Ct. 410, 415-16,
30 L. Ed. 2d 372 (1971) (non-felonies); Griffin
v. Illinois,
351 U.S. 12, 18-20,
76 S. Ct. 585, 590-91,
100 L. Ed.
891 (1956) (felonies), its requirements are less onerous in civil
cases. In the civil context, the test is whether the litigant has
a "fundamental interest at stake." M.L.B. v. S.L.J., --- U.S. ----
, ----,
117 S. Ct. 555, 562,
136 L. Ed. 2d 473 (1996). If he does,
the courts must waive filing fees if he is unable to pay.
Examples of proceedings that implicate fundamental interests
are divorce actions, see Boddie v. Connecticut, 401 U.S. 371, 376,
91 S. Ct. 780, 785,
28 L. Ed. 2d 113 (1971), and terminations of
parental rights, see M.L.B., --- U.S. at
----, 117 S. Ct. at 568.
Examples of interests that do not rise to this level are bankruptcy
filings, see United States v. Kras,
409 U.S. 434, 444-45,
93 S. Ct.
631, 637-38,
34 L. Ed. 2d 626 (1973), and welfare benefit
determinations, see Ortwein v. Schwab,
410 U.S. 656, 659,
93 S. Ct.
1172, 1174,
35 L. Ed. 2d 572 (1973) (per curiam).
Carson seeks reassignment from administrative segregation.
Prisoners have no liberty interest in avoiding disciplinary
segregation, at least where the status does not "inevitably affect
the duration of [the] sentence." Sandin v. Conner, --- U.S. ----,
----, 115 S. Ct. 2293, 2302,
132 L. Ed. 2d 418 (1995). Carson does
7
not have a fundamental interest in his placement and thus is not
entitled to waiver of filing fees.
C.
Carson's claim of discriminatory treatment is similarly
without merit. Neither prisoners nor indigents constitute a
suspect class. See Harris v. McRae, 448 U.S. 297, 323,
100 S. Ct.
2671, 2691,
65 L. Ed. 2d 784 (1980) (indigents); United States v.
King,
62 F.3d 891, 895 (7th Cir.1995) (prisoners); see also City
of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 440-41,
105
S. Ct. 3249, 3254-55,
87 L. Ed. 2d 313 (1985) (listing suspect
classes). As explained above, Carson has no fundamental personal
right at stake. Therefore, we review the PLRA to determine whether
it is "rationally related to a legitimate state interest." City of
New Orleans v. Dukes,
427 U.S. 297, 303,
96 S. Ct. 2513, 2516,
49
L. Ed. 2d 511 (1976) (per curiam).
It can hardly be doubted that deterring frivolous and
malicious lawsuits, and thereby preserving scarce judicial
resources, is a legitimate state interest. Cf. Schlup v. Delo, 513
U.S. 298, ----,
115 S. Ct. 851, 865,
130 L. Ed. 2d 808 (1995) (noting
the societal interest in the "conservation of scarce judicial
resources"). It is similarly undebatable that prohibiting
litigants with a history of frivolous or malicious lawsuits from
proceeding IFP will deter such abuses. The only question is
whether the distinction drawn between prisoners and other litigants
is rational.
We agree with the Fourth and Sixth Circuits, and find that
8
this distinction is rational. See Roller v. Gunn, 107 F.3d 227,
233-34 (4th Cir.1997); Hampton v. Hobbs,
106 F.3d 1281, 1286-87
(6th Cir.1997). Prisoners have substantially more free time than
do non-prisoners and are provided with food, housing, paper,
postage, and legal assistance by the government. See
Roller, 107
F.3d at 234.
Furthermore, "pro se civil rights litigation has become a
recreational activity for state prisoners," Gabel v. Lynaugh, 835
F.2d 124, 125 n. 1 (5th Cir.1988) (per curiam), and prisoners have
abused the judicial system in a manner that non-prisoners simply
have not.4 Carson's own lengthy litigation history is the
strongest possible argument for the PLRA's rationality.5
4
See Hampton, 106 F.3d at 1286-87 (citing 141 CONG. REC. S7256
(daily ed. May 25, 1995) (statement of Sen. Kyl) (noting the
prevalence of meritless prisoner lawsuits)).
5
See, e.g., In re Carson, 500 U.S. 931,
111 S. Ct. 2067,
114
L. Ed. 2d 472 (1991) (denying writ of mandamus);Carson v. Bowles, No.
95-10115,
77 F.3d 479 (5th Cir. Jan.17, 1996) (per curiam)
(unpublished) (affirming summary judgment for defendant); In re
Carson, No. 95-00138 (5th Cir. July 11, 1995) (per curiam)
(unpublished) (denying writ of mandamus); Carson v. Texas Dep't of
Criminal Justice-Parole Div., No. 95-50039,
62 F.3d 393 (5th Cir.
June 29, 1995) (per curiam) (unpublished) (affirming dismissal of
civil rights case, finding appeal frivolous, and imposing
sanctions), cert. denied, --- U.S. ----,
116 S. Ct. 571,
133 L. Ed. 2d
495 (1995); Carson v. Aguilera, No. 93-5432,
36 F.3d 90 (5th Cir.
Sept. 13, 1994) (per curiam) (unpublished) (affirming judgment for
defendants); Carson v. Denby, No. 94-40322,
30 F.3d 1492 (5th Cir.
July 19, 1994) (per curiam) (unpublished) (reversing dismissal of
civil rights case as frivolous); Carson v. Kent, No. 93-5462 (5th
Cir. May 25, 1994) (per curiam) (unpublished) (dismissing appeal as
frivolous); Carson v. Perry, No. 93-4375,
8 F.3d 21 (5th Cir.
Oct.22, 1993) (per curiam) (unpublished) (affirming summary
judgment in part, vacating and remanding in part), appeal after
remand, No. 95-40551,
91 F.3d 138 (5th Cir. June 6, 1996) (per
curiam) (unpublished) (affirming summary judgment); Carson v.
Bowles, No. 92-9089,
4 F.3d 990 (5th Cir. Aug.30, 1993) (per
curiam) (unpublished) (affirming denial of qualified immunity);
9
IV.
We have dismissed, as frivolous, one appeal by Carson. See
Carson v. Kent, No. 93-5462 (5th Cir. May 25, 1994) (per curiam)
(unpublished). This counts as a "strike." See Adepegba, 103 F.3d
at 388.
Twice, we have affirmed a district court's dismissal, for
frivolousness, of complaints filed by Carson. See Carson v.
Hernandez, No. 91-1528, 949 F.2d 1158 (5th Cir. Nov. 22, 1991) (per
curiam) (unpublished), cert. denied,
503 U.S. 974,
112 S. Ct. 1594,
118 L. Ed. 2d 310 (1992); Carson v. Peterson, No. 91-2618,
949 F.2d
1158 (5th Cir. Nov. 20, 1991) (per curiam) (unpublished), cert.
denied,
503 U.S. 990,
112 S. Ct. 1685,
118 L. Ed. 2d 400 (1992). Now
that these dismissals by the district court are final, they too
count as strikes. See
Adepegba, 103 F.3d at 387-88.
Therefore, because Carson has at least three strikes, he may
not proceed IFP in this or any other federal lawsuit which does not
involve "imminent danger of serious physical injury." He may
resume any claims dismissed under § 1915(g) under the fee
provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else.
See Adepegba, 103 F.3d at 388.
The appeal is DISMISSED.
Carson v. Waldron, No. 92-4375, 978 F.2d 709 (5th Cir. Oct.21,
1992) (per curiam) (unpublished) (affirming dismissal of civil
rights case as frivolous); Carson v. Hernandez, No. 91-1528,
949
F.2d 1158 (5th Cir. Nov. 22, 1991) (per curiam) (unpublished)
(same), cert. denied,
503 U.S. 974,
112 S. Ct. 1594,
118 L. Ed. 2d 310
(1992); Carson v. Peterson, No. 91-2618,
949 F.2d
1158 (5th Cir. Nov. 20, 1991) (per curiam) (unpublished) (same),
cert. denied,
503 U.S. 990,
112 S. Ct. 1685,
118 L. Ed. 2d 400 (1992).
10
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