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Keener v. Pennsylvania Bd. of Probation & Parole

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


October 17, 1997

GEORGE K. KEENER

v.

PENNSYLVANIA BOARD OF PROBATION & PAROLE; ROBERT WIENCKOSKI

GEORGE K. KEENER, APPELLANT

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 96-cv-05075)

Before: SLOVITER, Chief Judge STAPLETON and COWEN Circuit Judges

SCIRICA, Circuit Judge.

Filed October 17, 1997

Submitted Pursuant to Third Circuit LAR 34.1(a) October 2, 1997

(Opinion Filed October 17, 1997)

Appellant George Keener seeks to appeal the order of the

district court denying his motion for leave to proceed in that court in forma pauperis pursuant to 28 U.S.C. Section(s) 1915(g). Following the filing of his notice of appeal Keener sought to proceed in this court in forma pauperis and requested appointment of counsel. We have determined that the issue is a straightforward one which can be decided without further briefing, and deny the motion for counsel.

The Prisoner Litigation Reform Act (PLRA), which was enacted on April 26, 1996, precludes a prisoner from proceeding in forma pauperis if that 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. Section(s) 1915(g).

The district court denied Keener's motion to proceed in forma pauperis because he had previously filed numerous civil rights actions which had been dismissed as frivolous by that court. The most recent three were dismissed on July 12, 1995, March 1, 1995, and February 4, 1994, all before the enactment of the PLRA. Thus this appeal requires us to decide whether lawsuits dismissed as frivolous before the enactment of the PLRA can be counted toward the Act's "three strikes" provisions. *fn1

In Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), the Supreme Court directed courts to determine the retroactive application of a new statute which does not expressly prescribe its reach by ascertaining whether its application to pending cases would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed."

Three courts of appeals have already applied those criteria to this provision of the PLRA and ruled that lawsuits dismissed as frivolous prior to the enactment of the PLRA count as "strikes" under Section(s) 1915(g). See Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996); Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996). We see no basis to differ with that result.

We thus now join those circuits in holding that dismissals for frivolousness prior to the passage of the PLRA are included among the three that establish the threshold for requiring a prisoner to pay the full docket fees unless the prisoner can show s/he is "under imminent danger of serious physical injury." The district court noted that nothing in Keener's complaint, in which he appeared to be alleging that he has been hindered in obtaining release on parole after completion of his minimum sentence, suggests that Keener is in any imminent danger of serious physical injury. *fn2

We will therefore deny Keener's motion to proceed in forma pauperis, and dismiss the appeal without prejudice to Keener's right to reinstitute his action in the district court upon payment of full docketing fees. A True Copy: Teste:

Clerk of the United States Court of Appeals for the Third Circuit


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