Edward Eugene Barber v. Thomas J. Krepp ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13059
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-00083-WLS-TQL
EDWARD EUGENE BARBER,
Plaintiff-Appellant,
versus
THOMAS J. KREPP,
Assistant U.S. Attorney,
U.S. Department of Justice,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
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(February 22, 2017)
Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Edward Barber appeals the district court’s order denying his motion to
proceed in forma pauperis and dismissing his complaint without prejudice. He
argues that, although he is a “frequent filer” under 28 U.S.C. § 1915(g), he has
sufficiently alleged that he faces “imminent danger of serious physical injury.”
Barber alleges that he received a letter from the Department of Justice and
Thomas Krepp, an Assistant United States Attorney, in June 2014. The letter
informed him that he might be a victim of fraud in an active criminal case. The
letter assigned Barber a victim identification number and directed him to report
threats or harassment in retaliation for his cooperation with the government.
According to Barber, the people who defrauded him were officials from the
Georgia Department of Corrections, Department of Law, and State Board of
Pardons and Parole. He claims that they have retaliated against him for reporting
what he believes are numerous violations of federal law to the United States
Attorney. He filed a lawsuit to compel Krepp to take steps to protect him from
further retaliation.1
1
The United States, as amicus curiae, argues that the district court lacked jurisdiction
over Barber’s claims. It argues that, because Barber’s claims are based on the Crime Victims
Rights Act (CVRA) and the only case it can find in which Barber might have been a victim is
from the Northern District of Georgia, he was required to file this action there. We disagree.
While it is true that the CVRA provides that actions to enforce its guarantees should be filed in
the district where the crime occurred or a prosecution is ongoing, 18 U.S.C. § 3771(b)(1), we are
not persuaded that this requirement is jurisdictional. “The Supreme Court has cautioned, in
recent decisions, against profligate use of the term [jurisdictional] . . . .” Santiago-Lugo v.
Warden, 785 F.3d 467, 472 (11th Cir. 2015) (quotation marks and citations omitted) (first
alteration in original). In general, it has suggested that “where Congress does not say there is a
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“We review the denial of a petition to proceed in forma pauperis for abuse of
discretion, . . . but we review interpretations of the [Prison Litigation Reform Act]
de novo . . . .” Daker v. Comm’r, Ga. Dep’t. of Corr., 820 F.3d 1278, 1283 (11th
Cir. 2016) (citations omitted). “A district court abuses its discretion if it applies an
incorrect legal standard, applies the law in an unreasonable or incorrect manner,
follows improper procedures in making a determination, or makes findings of fact
that are clearly erroneous.” Hartford Cas. Ins. Co. v. Crum & Forster Specialty
Ins. Co., 828 F.3d 1331, 1333 (11th Cir. 2016) (quotation marks omitted).
Whether a prisoner is entitled to proceed in forma pauperis under § 1915(g) must
be determined based upon the complaint, “which we must construe liberally
[because it was filed pro se] and the allegations of which we must accept as true.”
Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004).
Section 1915(g) was enacted as part of the Prison Litigation Reform Act and
provides:
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
jurisdictional bar, there is none.” Id. at 473. Congress has not said so here and we see no other
reason to conclude that § 3771(b)(1) speaks to jurisdiction instead of venue. Additionally, it is
not clear to us that all of Barber’s claims are premised on the CVRA. For example, at one point
in his amended application for mandamus relief Barber appears to argue that the U.S. Attorney’s
office’s failure to take reasonable steps to protect him — as the CVRA requires — resulted from
discrimination on the basis of disability.
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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). Barber concedes that he has three “strikes” under this
provision, but argues that he falls within its “imminent danger of serious physical
injury” exception. The district court concluded that he did not fall within that
exception because his allegations were not sufficiently specific. In particular, it
emphasized that Barber talked a lot about past harm and failed to identify who had
threatened him and what they had threatened to do. We disagree.
While simply recounting past injuries is not sufficient to establish an
“imminent danger of physical injury” under § 1915(g), a prisoner can establish it
by recounting recent injuries that reveal an “ongoing pattern of acts” as well as
threats of future harm. Chavis v. Chappius, 618 F.3d 162, 170–71 (2d Cir. 2010).
In his various filings in the district court,2 Barber claims that, among other things,
he has been stabbed, almost lost an eye, and been threatened with unnecessary anti-
psychotic medication in retaliation for his cooperation with the government. He
alleges that three of those incidents were severe enough to qualify as attempts on
his life. He asserts that he was told that prison officials would use force to
2
It is not necessary that the allegations of imminent harm be contained in a document
labelled a complaint; instead the question is “whether some timely filing avers facts suggesting a
prisoner was under imminent danger of physical injury . . . .” See Asemani v. U.S. Citizenship
and Immigration Servs., 797 F.3d 1069, 1074–75 (D.C. Cir. 2015) (quotation marks omitted).
We do, however, decline to consider the allegations in Barber’s initial application for a writ of
mandamus and his May 29, 2015 addendum to it. Both would have been superseded by the
amended application for a writ of mandamus that he filed on June 3, 2015.
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administer unnecessary medical treatment and, if he died in the process, would
justify his death by planting a weapon on his person. Barber’s request for a motion
to enjoin third parties mentions by name several individuals who were allegedly
involved in his harassment. And, construing the filings liberally, all of this
apparently occurred between the time he received the letter in June 2014 and the
time he filed various documents with the district court in June 2015. Those
allegations are sufficient to establish an “imminent danger of serious physical
harm,” and it was an abuse of discretion for the district court to conclude
otherwise.
That conclusion is not altered by the fact that, during the pendency of this
appeal, Barber has been transferred from the prison where the past attacks
allegedly occurred. Barber claims that his harassment is the result of a conspiracy
that reaches beyond Autry State Prison to include, among others, the statewide
Georgia Department of Corrections and the Board of Pardons and Parole. As a
result, it is not clear that merely transferring him from one prison to another within
the Georgia penal system will end the alleged retaliation against him. 3
It is true that the Second Circuit has concluded that, in order to fall within
the “imminent danger” exception to § 1915(g), the prisoner must demonstrate a
3
For the same reason, we reject the suggestion of the United States, as amicus curiae,
that Barber’s transfer moots this case. That being said, if it later becomes clear that the transfer
has ended any risk of retaliation, the district court would be obligated to reconsider this issue.
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“nexus” between the physical injury he fears and the claims in his complaint.
Pettus v. Morgenthau, 554 F.3d 293, 397 (2d Cir. 2009). The United States, as
amicus curaie, suggests that we should adopt this view of the statute. But we need
not decide in the present case whether § 1915(g)’s “imminent danger” exception
requires proof of such a nexus. Even if it did, Barber has alleged a nexus between
the harm he has suffered and the defendant’s inaction. Barber argues that he
continues to live under threat of physical injury because the defendant has not,
among other things, helped him to obtain a restraining order to stop prison officials
he has accused of committing federal crimes from abusing him. In essence, he
appears to claim that “reasonably protect[ing]” him “from the accused” requires
rendering such assistance. 18 U.S.C. § 3771(a)(1).
Of course, it is very possible that some or all of Barber’s claims may be
subject to dismissal for reasons other than his status as a “frequent filer.” But
“[section] 1915(g) concerns only a threshold procedural question — whether the
filing fee must be paid upfront or later. Separate PLRA provisions are directed at
screening out meritless suits early on.” Andrews v. Cervantes, 493 F.3d 1047,
1055 (9th Cir. 2007). We leave those preliminary merits determinations for the
district court on remand.
The district court’s judgment of dismissal is VACATED, its order denying
leave to proceed in forma pauperis and dismissing Barber’s complaint is
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REVERSED, and the case is REMANDED to the district court with instructions
to grant leave to proceed in forma pauperis and for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.
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