UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IBRAHIM, JIBRIL L.

v.

DC


96-7069a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: Jibril Ibrahim, nE Grant  Anderson, asks us to
resolve two questions regarding the  application of the fee provisions
of 28 U.S.C. s 1915, as  amended by the Prison Litigation Reform Act,
to events that  occurred prior to the effective date of that Act.
Because the  appeal of Johnny Ray Chandler raises the second question
as  well, we decide his case along with that of Mr. Ibrahim.


First, we consider whether the Prison Litigation Reform  Act applies to
a notice of appeal filed before the effective date  of the Act but
held in abeyance until after that date pending  the district court's
disposition of post-judgment motions.  Second, we determine whether
civil actions or appeals dis- missed as frivolous, malicious, or for
failure to state a claim  upon which relief can be granted, prior to
the effective date of  the Act, are to be counted in determining
whether a prisoner  has three "strikes"--as in "three strikes and
you're out"--and  therefore may no longer prosecute a claim in forma


We conclude that Mr. Ibrahim's notices of appeal were not  "filed"
until the district court decided his post-judgment  motions after the
effective date of the Act. We further hold,  as has every other
circuit to have considered the matter, that  an action dismissed for
one of the reasons listed above prior 


to the effective date of the Act counts as a strike. Finally, we  grant
Messrs. Ibrahim and Chandler 30 days, grace in which  to pay the
filing fee.


I. Background


On April 26, 1996 the Congress amended 28 U.S.C. s 1915  as part of the
Prison Litigation Reform Act of 1995 (PLRA),  which was Title VIII of
the Omnibus Consolidated Rescis- sions and Appropriations Act of 1996,
Pub. L. No. 104-134,  s 804, 110 Stat. 1321-66, 1321-73 (1996).
Whereas before the  amendment an indigent prisoner could file a civil
action in  federal court without having to pay a filing fee, 28 U.S.C.
 s 1915(a) (1994), s 1915 now requires that he pay the filing  fee,
but allows him to do so in installments. See id.  s 1915(b)(1), (2)
(Supp. II 1996). An indigent prisoner may  not, however, bring a civil
action or appeal a judgment in  forma pauperis, and thereby avail
himself of the installment  plan, if he has


on 3 or more prior occasions, while incarcerated or  detained in any
facility, brought an action or appeal ...  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 dan- ger of serious physical injury.


28 U.S.C. s 1915(g).


Mr. Chandler does not dispute that he filed at least three  actions
that were dismissed as frivolous or malicious, or for  failure to
state a claim, prior to the effective date of the  PLRA. See Chandler
v. District of Columbia Department of  Corrections, No. 95-2366, slip
op. at 2-6 (D.D.C. March 11,  1996) (recounting numerous dismissals of
complaints filed by  Chandler). Mr. Chandler's present appeal arises
out of the  district court's dismissal of a complaint he filed on
December  26, 1995, in which he alleged that a District of Columbia 
corrections officer violated his civil rights by placing him in a 
segregated cell and questioning him without first giving him a 
Miranda warning. Mr. Chandler named numerous defen-


dants in his complaint, including the corrections officer; the 
district dismissed his claim as to the officer on January 28,  1997,
and Mr. Chandler timely filed an appeal from the order  of the
district court.


As for Mr. Ibrahim, he has long been recognized as a  "prolific filer"
in this and other courts; his complaints were  so "profuse and
meritless" that in 1995 the district court  enjoined him from filing
any further complaint without first  obtaining leave of court. See
Anderson v. District of Colum- bia Public Defender Service, 881 F.
Supp. 663, 669-71 (D.D.C.  1995) (noting Ibrahim had filed five claims
dismissed as  frivolous). In 1996 the district court denied Mr.
Ibrahim  leave to file two civil complaints against the District of 
Columbia. In March 1996, shortly before enactment of the  PLRA, Mr.
Ibrahim filed notices of appeal in the district  court. Several days
later he filed a Motion for Clarification  in one of the cases (No.
95-MS-321), asking the district court  to consider the merits of his
complaint once more. In the  other case (No. 994-CV-2687) Mr. Ibrahim
filed several post- judgment motions, including a Motion to Vacate the
Judg- ment, a Motion for Reconsideration and Motion to Make  Findings
of Fact and Law, and a Motion for Leave to File a  Supplemental
Complaint. The last of these he filed after the  effective date of the


We held the appeals in both of Mr. Ibrahim's cases in  abeyance until
the district court denied all his post-judgment  motions in December
1996. Mr. Ibrahim then appealed the  denial of his post-judgment
motions and filed another notice  of appeal in No. 94-CV-2687, which
we construe as an  amendment of his first appeal in that case. See
Fed. R. App.  P. 4(a)(4)(B). We set his cases for argument along with
Mr.  Chandler's and appointed an amicus curiae to present argu- ments
on behalf of both appellants.


II. Analysis


In order to determine whether Mr. Ibrahim's appeals are  subject to the
PLRA, we must first ascertain when Mr.  Ibrahim's notices of appeal
were "filed" for the purposes of 


s 1915. If they were not "filed" until after the effective date  of the
PLRA, then we must consider whether Mr. Ibrahim's  pre-PLRA
dismissals, as well as those of Mr. Chandler, count  as "strikes"
under s 1915(g).


A. When an Appeal Is Deemed "Filed"


Under Federal Rule of Appellate Procedure 4(a)(4), while  certain
post-judgment motions are pending in the district  court, a notice of
appeal is "ineffective to appeal from the  judgment or order, or part
thereof, specified in the notice of  appeal, until the entry of the
order disposing of the last such  motion outstanding."* The advisory
committee's notes con- cerning the 1993 amendments to Rule 4 state
that a prema- ture appeal is "suspended" pending the resolution of a
post- judgment motion. Therefore, according to the amicus, the 
advisory committee must have intended that an appeal be  deemed filed
when it is first submitted; a post-judgment  motion simply puts the
appeal in suspense until the proper  time for the court to consider
it. This conclusion is sup- ported, the amicus contends, by Federal
Rule of Appellate  Procedure 3(e), which requires the appellant to pay
the filing  fee when the appeal is first filed. Because Rule 3(e) does
not  mention the possibility of payment being delayed pending the 
district court's resolution of a post-judgment motion, the  argument
goes, the appeal should be considered "filed" when  the filing fee is
paid--that is to say, when the appeal is first  filed.


The amicus's reliance upon Rule 3(e) is misplaced--espe- cially in this
case, where Mr. Ibrahim seeks to proceed in  forma pauperis under the
pre-PLRA version of s 1915, with- out ever paying the filing fee. Even
before the PLRA, the  mere filing of a notice of appeal and a request
to proceed in  forma pauperis did not constitute filing of the appeal:
"It  was not until ... after [the plaintiff] had been permitted by 





__________

n * Rule 4(a)(4) was amended in 1993, 1995, and again in 1998. We  rely
upon the 1995 version because it was in effect at the time of  Mr.
Ibrahim's appeals. We note, however, that, in substance, the  relevant
portion of the rule has not been changed since 1993. See  Fed. R. App.
P. 4 advisory committee's notes.


the district court to proceed in forma pauperis, that the  complaint
was 'filed' and entered as such on the docket  sheet." Toliver v.
County of Sullivan, 841 F.2d 41, 42 (2d  Cir. 1988). Nor did the PLRA
work any change in this  regard. See Smith v. United States, 182 F.3d
25, 30 (D.C.  Cir. 1999) ("[W]e will deem a prisoner to have 'filed an
appeal  in forma pauperis' as soon as he has both filed a notice of 
appeal and been granted in forma pauperis status, but not  before").
In sum, permission to proceed in forma pauperis is  merely a
substitute for payment of the filing fee; an appellant  must either
pay the fee or be excused as a pauper before his  appeal may


Regardless when--or whether--a filing fee is paid, howev- er, a
premature notice of appeal which is "ineffective" for the  purposes of
Rule 4 cannot be effective for the purposes of the  PLRA. Were we to
consider Mr. Ibrahim's notice of appeal  "filed" for purposes of the
PLRA despite its being declared  by Rule 4 "ineffective to appeal from
the judgment or order  ... specified" therein, we would give effect to
an otherwise  ineffective filing in the teeth of the Rule. Cf. Ekstrom
v.  Value Health, Inc., 68 F.3d 1391, 1394 (D.C. Cir. 1995) 
("Appellants first moved for reconsideration, and then filed a  notice
of appeal.... [T]he District Court denied appellants'  motion to
reconsider ... and the notice of appeal became  effective"). That we
cannot do. Therefore, Mr. Ibrahim  cannot avoid the strictures of the
PLRA by filing a premature  notice of appeal.


We conclude that Mr. Ibrahim's appeals ripened only after  the district
court disposed of his post-judgment motions.  Accordingly, Mr.
Ibrahim's appeals are, like Mr. Chandler's,  subject to the PLRA, and
we must determine whether the  appellants' pre-PLRA dismissals make
them ineligible, pursu- ant to s 1915(g), to pursue their present
appeals in forma  pauperis.


B. Section 1915(g)


The presumption against retroactive legislation is well es- tablished
in our jurisprudence. The reasons for the presump- tion are
straightforward: "Elementary considerations of fair- ness dictate that
individuals should have an opportunity to 


know what the law is and to conform their conduct according- ly;
settled expectations should not be lightly disrupted."  Landgraf v.
USI Film Products, 511 U.S. 244, 265 (1994). In  order to determine
whether a statute applies retroactively  despite the negative
presumption the Supreme Court teaches:


[Our] first task is to determine whether Congress has  expressly
prescribed the statute's proper reach....  When ... the statute
contains no such express command,  the court must determine whether
the new statute would  have retroactive effect, i.e., whether it 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. If the  statute would operate
retroactively, our traditional pre- sumption teaches that it does not
govern absent clear  congressional intent favoring such a result.


Id. at 280.


According to the amicus, s 1915(g) contains no "express  command"
requiring its retroactive application, nor can one  be found by
employing the "normal rules of [statutory] con- struction." See Lindh
v. Murphy, 521 U.S. 320, 326 (1997).  Citing the Supreme Court's
conclusion in Martin v. Hadix,  527 U.S. 343, 119 S. Ct. 1998, 2004
(1999), that the phrase "in  any action" "does not clearly express
congressional intent  that [an attorneys' fee provision of the PLRA]
apply retroac- tively" to actions initiated prior to the effective
date of the  Act, the amicus argues that the term "prior occasions" in
 s 1915(g) is similarly unclear. Further, we are told that 
application of s 1915(g) to pre-PLRA dismissals would indeed  have a
retroactive effect, namely, upsetting prisoners' reason- able
expectations that new legal consequences would not  attach to their
pursuit of nonmeritorious actions or appeals.  Before the effective
date of the PLRA, a prisoner could  expect that, although he might be
subjected to an injunction  barring further filings without leave of
court, he would not  have to pay the filing fee before the court would
consider any  future case he might file. Retrospective application of 
s 1915(g) would therefore deny prisoners the opportunity "to 


conform their conduct based on notice that lawsuits filed prior  to the
PLRA could so severely limit their access to the  federal courts."


The District responds that both the wording and the pur- pose of the
statute reflect the intent of the Congress to apply  s 1915(g)
retrospectively. We agree. By prohibiting a pris- oner from proceeding
in forma pauperis if "on 3 or more  prior occasions" he has had a
claim dismissed for one of the  enumerated reasons, the Congress
sought, as it did through- out the PLRA, to reduce the number of
nonmeritorious  actions brought by prisoners for whom litigation was a
cost- less pastime. Both the wording of the statute and more 
particularly its purpose suggest that the "prior occasions" to  which
s 1915(g) refers include dismissals occurring before the  effective
date of the PLRA. See Green v. Nottingham, 90  F.3d 415, 419 (10th
Cir. 1996); see also Tierney v. Kupers,  128 F.3d 1310, 1311 (9th Cir.
1997). To hold otherwise would  be to suggest that the Congress was
willing to let all prison- ers, including those who had thrice abused
the privilege in the  past, proceed in forma pauperis with


Even if the Congress did not "unambiguously prescribe[ ]  the scope of
s 1915(g)," however, the appellants' argument  that the statute should
not be applied to them fails because  the statute simply does not have
a "retroactive effect," as that  term is used in Landgraf. See Green,
90 F.3d at 419-20; see  also Martin, 119 S. Ct. at 2006 ("[I]nquiry
into whether a  statute operates retroactively demands a common sense,
func- tional judgment about 'whether the new provision attaches  new
legal consequences to events completed before its enact- ment' ")
(quoting Landgraf, 511 U.S. at 270). As a procedur- al rule governing
the filing of a claim in forma pauperis,  s 1915(g) neither divests a
prisoner of his right to bring a  claim nor changes the law in a way
that adversely affects his  prospects for success on the merits of the
claim. See Green,  90 F.3d at 420. Section 1915(g) merely specifies
that, after  having three times filed suits or appeals that were
dismissed  on one of the enumerated grounds, a prisoner must pay his 
own way like any other litigant.


Although we understand that a change even in a procedural  rule may
have a retroactive effect, see Martin, 119 S. Ct. at  2006, the
amendment of s 1915(g) does not. Leave to file a  claim in forma
pauperis has always been a matter of grace, a  privilege granted in
the court's discretion, see Rivera v. Allin,  144 F.3d 719, 722 (11th
Cir. 1998) ("the exception rather than  the rule"), and denied in the
court's discretion when that  privilege has been abused by filing
claims or appeals that are  frivolous or otherwise not taken in good
faith. See Sills v.  Bureau of Prisons, 761 F.2d 792, 795 (D.C. Cir.
1985);  Maloney v. E.I. DuPont de Nemours & Co., 396 F.2d 939, 940 
(D.C. Cir. 1967). Its loss, therefore, does not "impair rights"  the
appellants had when they filed their three pre-PLRA  cases. Nor is the
loss any greater or different when it is the  Congress rather than the
court that decides how many non- meritorious cases are enough to start
charging for admission  to the forum.


We understand s 1915(g) as does the Sixth Circuit, there- fore: The
statute "does not impose new or additional liabili- ties, but instead
requires collection of a fee that was always  due." Wilson v. Yaklich,
148 F.3d 596, 603 (1998) (quoting  Adepegba v. Hammons, 103 F.3d 383,
386-87 (5th Cir. 1996)).  Hence we join the eight other circuits that
have considered  the question and concluded that cases dismissed prior
to the  effective date of the PLRA count as "strikes" under  s
1915(g). See Welch v. Galie, No. 99-0229, 2000 WL 287316,  at *2 (2d
Cir. 2000); Adepegba, 103 F.3d at 387-88 (5th Cir.);  Wilson, 148 F.3d
at 604 (6th Cir.); Abdul-Wadood v. Nathan,  91 F.3d 1023, 1025 (7th
Cir. 1996); In re Tyler, 110 F.3d 528,  529 (8th Cir. 1998); Tierney,
128 F.3d at 1312 (9th Cir.);  Green, 90 F.3d at 420 (10th Cir.);
Rivera, 144 F.3d at 730  (11th Cir.); cf. Keener v. Pennsylvania Board
of Probation &  Parole, 128 F.3d 143, 144-45 (3d Cir. 1997) (pre-PLRA
dis- missals for frivolousness included as "strikes" under  s


Neither Mr. Ibrahim nor Mr. Chandler claims to be in  "imminent danger
of serious physical injury," which would  entitle them to file their
appeals in forma pauperis regard- less of their having accrued three
prior dismissals. See 28  U.S.C. s 1915(g). In order properly to bring
their appeals 


before us, therefore, Messrs. Ibrahim and Chandler must pay  the full
fare. See Keener, 128 F.3d at 145; Green, 90 F.3d at  420.


III. Conclusion


For the foregoing reasons, we hold first that Mr. Ibrahim's  notice of
appeal was not "filed" in this court until the district  court
disposed of his post-judgment motions, which was after  the effective
date of the PLRA. In addition, we conclude that  pre-PLRA dismissals
count as "strikes" under s 1915(g).  Accordingly, Messrs. Ibrahim and
Chandler must pay the  filing fee within 30 days.


So ordered.