Nicholas v. Atty Gen PA ( 2007 )


Menu:
  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    11-9-2007
    Nicholas v. Atty Gen PA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-2011
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
    Recommended Citation
    "Nicholas v. Atty Gen PA" (2007). 2007 Decisions. Paper 234.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/234
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    CLD-17                                                      NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    No. 07- 2011
    ________________
    EDWARD J. NICHOLAS,
    Appellant
    v.
    ATTORNEY GENERAL OF PA THOMAS CORBETT; LOWELL WITMER;
    FRANCIS R. FILLIPI; JAMES P. BARKER, President Judge
    Dauphin County Courthouse; DISTRICT JUSTICE MARY
    CROSS; RICHARD LONG; DISTRICT JUDGE MARSHA STEWART;
    DIANE WOODSIDE; GEORGE ZOZOS
    __________________________
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. Civil No. 06-cv-00129)
    District Judge: Honorable Sean J. McLaughlin
    __________________________
    Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
    or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
    October 25, 2007
    Before: AMBRO, FUENTES, and JORDAN, Circuit Judges
    (Opinion filed: November 9, 2007)
    ___________________
    OPINION
    ___________________
    PER CURIAM
    Edward J. Nicholas appeals from the District Court’s order denying his motion for
    leave to proceed in forma pauperis.1 We have jurisdiction pursuant to 28 U.S.C. § 1291,
    and review issues of statutory construction de novo. See Abdul-Akbar v. McKelvie, 
    239 F.3d 307
    , 311 (3d Cir. 2001). We will summarily vacate the District Court’s order and
    remand for further proceedings.
    The District Court denied Nicholas’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.”
    All of the strikes on which the District Court relied, however, were dismissals of
    complaints that had not yet been entered when Nicholas filed the instant suit. See W.D.
    Pa. Civ. Nos. 06-112, 06-98, and 06-201. Moreover, Nicholas went on to appeal each of
    the three dismissals, and those appeals were not completed at the time Nicholas filed his
    complaint. See C.A. Nos. 06-4362, 06-4361, 06-4367. 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, 
    175 F.3d 775
    ,
    780 (10th Cir. 1999); Adepegba v. Hammons, 
    103 F.3d 383
    , 387-88 (5th Cir. 1996).
    Therefore, Nicholas did not have three 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 this Court has since dismissed Nicholas’s appeals of the
    1
    Nicholas is currently on parole and was granted in forma pauperis status for purposes
    of this appeal.
    2
    aforementioned District Court orders under 28 U.S.C. § 1915(e)(2)(B), see C.A. Nos. 06-
    4362, 06-4361, 06-4367, 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 
    Abdul-Akbar, 239 F.3d at 313
    ; Gibbs v. Ryan,
    
    160 F.3d 160
    , 162-63 (3d Cir. 1998). Thus, only the strikes actually earned at the time
    the complaint was filed are relevant. The statute does not authorize courts to revoke in
    forma pauperis status if a prisoner later earns three strikes. See 
    Gibbs, 160 F.3d at 163
    (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 Nicholas’s motion for leave to proceed in forma pauperis in
    light of this opinion. The two motions Nicholas has filed on appeal are denied.
    3
    

Document Info

Docket Number: 07-2011

Judges: Ambro, Fuentes, Jordan, Per Curiam

Filed Date: 11/9/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024