On Appeal From the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 96-cv-00041J)
Before: Roth, McKee, Circuit Judges and O'Neill, Senior District Judge*
The opinion of the court was delivered by: McKEE, Circuit Judge
*The Honorable Thomas N. O'Neill, Jr., Senior District Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.
Henry Gibbs appeals from the district court's order revoking his in forma pauperis status and dismissing his complaint pursuant to 28 U.S.C. § 1915(g). Gibbs contends that the district court erred in applying that statute, that the statute is an unconstitutional denial of the equal protection of the law, and that it denies him his fundamental right of access to the courts. For the reasons that follow, we agree that the district court erred in applying the statute to Gibbs and revoking his in forma pauperis status. Accordingly, we will vacate the order of the district court and remand for further proceedings.
On February 27, 1996, Gibbs filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that Dr. William C. Ryan, a physician at the State Correctional Institute at Somerset, had denied him medical treatment for a back injury and for injuries Gibbs allegedly sustained when he inadvertently ingested a piece of metal that was in his food. The matter was referred to a magistrate Judge on that same day, and the magistrate Judge granted Gibbs leave to proceed in forma pauperis. On March 6, 1996, an order was filed limiting Gibbs' in forma pauperis status to a waiver of the prepayment of the filing fee, and noting that Gibbs may be responsible for other fees and expenses. The order was based upon Gibbs' numerous civil rights filings. There is no indication in the record that the Marshal's fee was ever paid or that defendant Ryan was ever served.*fn1
On April 26, 1996, while the instant suit was pending in the district court, Congress enacted the Prison Litigation Reform Act, Pub. L. No. 104-134 (April 26, 1996) which is codified at 28 U.S.C. § 1915 ("PLRA"). Section 804 of the PLRA amends the prior 28 U.S.C. § 1915 to include a new provision that has come to be known as the "three strikes" rule. That provision is as follows:
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.
28 U.S.C. § 1915(g). Based upon this provision, the magistrate Judge issued a Report and Recommendation recommending that Gibbs' previously granted in forma pauperis status be revoked and that he be required to submit the full filing fee. The district court overruled Gibbs' objections to that Report and Recommendation, adopted the Report as the court's opinion, and dismissed Gibbs' complaint.*fn2 This appeal followed. The district court granted Gibbs leave to appeal in forma pauperis and we appointed counsel to assist Gibbs with this appeal. The United States has intervened and filed a brief as amicus curiae limited to the issues raised by Gibbs' challenge to the constitutionality of the PLRA.*fn3
The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction to review a final order of the district court pursuant to 28 U.S.C. § 1291. Our review of issues of statutory construction and interpretation is plenary. Moody v. Security Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir. 1992).
We are thus presented with yet another issue under the PLRA. We must decide the narrow question of whether a district court may apply § 1915(g) to revoke in forma pauperis status that had been granted ...