In this ease we decide two issues: first, whether section 804(d) of the Prison Litigation Reform Act of 1995 applies to appeals pending on the date that the Act took effect; and second, whether an inmate states a claim upon which relief may be granted when he alleges that a District of Columbia Department of Corrections officer threatened to have him killed and that Department of Corrections officials failed to respond to his complaints concerning the threat.
I. Background
A. Statutory Scheme
Section 804 of the Prison Litigation Reform Act of 1995 (“PLRA” or “Act”), Title VIII of the Omnibus Consolidated Rescis-sions and Appropriations Act of 1996, Pub.L. No. 104-134, § 804, 110 Stat. 1321-66, 1321-73 (1996), amended 28 U.S.C. § 1915 (1994), which authorized courts to waive the payment of initial filing fees and to permit a plaintiff to proceed
in forma pauperis
(“IFP”) upon submission of an “affidavit that he [was] unable to pay such costs or give security therefor.” 28 U.S.C. § 1915(a) (1994). Once permitted by a district court to proceed in that status, the plaintiff was entitled to take an appeal IFP so long as the district court did not “certiffy] in writing that [the appeal] [wa]s not taken in good faith.”
Id.
Because Congress had concluded that prisoner litigants were abusing the statute by flooding the courts with-meritless claims,
see Tucker v. Branker,
As amended by section 804, section 1915 now provides that a prisoner who wishes to initiate a court proceeding must assume liability for the entire cost of the filing fee unless its imposition would “prohibit[ ] [him] from bringing a civil action or appealing a *1357 ... judgment.” 28 U.S.C. § 1915(b)(1), (4) (Supp.1997). A prisoner seeking to proceed IFP must submit a statement of all his assets as well as a certified copy of his prison trust fund account for the six-month period immediately preceding the filing of his complaint or notice of appeal. Id. § 1915(a)(1), (2). If he qualifies for IFP, the prisoner will -be required to pay an “initial partial filing fee” that is computed on the basis of the information in his prisoner’s account. Id. § 1915(b)(1). The prisoner is then required to pay the balance in monthly installments. Id. § 1915(b)(2), (b)(3). If, however, a prisoner has filed, while incarcerated, three or more cases that have been dismissed for being frivolous or malicious or for failing to state a claim upon which relief could .be granted, he may not proceed IFP, id. § 1915(g), and must therefore pay the entire fee on filing. An indigent prisoner otherwise subject to subsection (g) may nevertheless proceed IFP when he is “under imminent danger of serious physical injury.” Id.
B: Factual and Procedural History
In August 1995, appellant Johnny Ray Chandler, a District of Columbia prisoner held at the Oecoquan Correctional Facility in Lorton, Virginia (“Lorton”), filed a pro se complaint alleging that Lorton officials had violated a number of his constitutional rights. He sought both prospective injunctive relief and monetary damages. See 42 U.S.C. § 1983. Coincident with filing his complaint, Chandler also moved to proceed IFP. As liberally construed by the district' court, his complaint alleged that Corporal Brenda Brooks, a D.C. correctional officer stationed at Lorton, violated his Eighth Amendment rights by threatening to have him killed and that the Department of Corrections (“Department”) violated both the Eighth Amendment and his Fifth Amendment due process rights when it ignored his administrative complaints. The district court granted Chandler’s motion to proceed IFP and later dismissed his complaint for failure to state a claim. See Fed.R.Civ.P. 12(b)(6).
Chandler timely filed his notice of appeal on April 22, 1996. Although the notice is broad enough to reach the district court’s dismissal of both his Fifth Amendment and Eighth Amendment claims, we will only address the latter because Chandler’s appellate brief fails to mention his due process claim, which is therefore forfeited.
See Terry v. Reno,
On June 14, 1996, the Department filed a motion requesting that we either summarily affirm the district court judgment on the ground that Chandler had failed to pay his docketing fee in violation of subsection (g) or order him to pay the fee. We denied the motion for summary affirmance and consolidated consideration of the Department’s alternative request with the hearing on the merits of Chandler’s appeal. We also appointed an amicus curiae to present arguments on Chandler’s behalf.
II. Analysis
A Applicability of Section 1915(g) to Appeals Pending at the Time of the PLRA’s Effective Date
Congress did not specify the date on which the PLRA would take effect. The Supreme Court long ago noted that, absent a statutory instruction to the contrary, a bill becomes law when signed by the President or, in the event he fails to sign it, ten days following its passage by both houses of Congress. See
Louisville v. Portsmouth Savings Bank,
104 U.S. (14 Otto) 469, 476-79,
As we explained above, section 1915 generally concerns the procedures by which a plaintiff may proceed IFP. Subsection (g) states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [i.e., *1358 IFP] if the prisoner has, on 3 or more 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) (Supp.1997).
If we assume for purposes of analysis that (as the Department maintains) Chandler, while imprisoned, has had at least three prior claims dismissed for one of the reasons cited in subsection (g), whether he is thereby prohibited from proceeding IFP will depend on whether the phrase “appeal a judgment” means “file an appeal,” as advocated by Chandler, or “prosecute an appeal,” as proposed by the Department. If the Department is correct, subsection (g) applies to all appeals pending on April 26, 1996, and Chandler is foreclosed from proceeding with his appeal without paying the applicable fee. The circuits that have considered this question are in conflict.
Compare Adepegba v. Hammons,
We hold that because subsection (g) is applied at the time that a prisoner files his appeal rather than throughout the course of the proceeding, it is inapplicable to Chandler. The parties’ lengthy discussion of retroactivity is therefore irrelevant. While the phrase “appeal a judgment” may appear ambiguous when examined in isolation, we must read those words in the context of the rest of section 1915 (all of which deals with proceedings IFP) in order to determine their statutory meaning.
See Jarecki v. G.D. Searle & Co.,
First, subsection 1915(g) states that a prisoner may not “bring a civil action or appeal a judgment” IFP if, while imprisoned, he has had three cases dismissed for certain enumerated reasons. 28 U.S.C. § 1915(g). Two other subsections use the same “bring a civil action or appeal a judgment” formulation, see id. § 1915(a)(2), (b)(4), while a third applies to prisoners who “bring[ ] a civil action or file [] an appeal.” Id. § 1915(b)(1) (emphasis added). The Department seizes on the distinction between the references to an appeal in subsections (b)(1) and (g) to argue that Congress intended the phrase “appeal a judgment”'to refer to something other than the filing of an appeal. While superficially seductive, this argument does not carry its weight.
Subsection (b)(1) provides that “if a prisoner
brings
a civil action or
files
an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.”
Id.
(emphasis added.) As the Seventh Circuit noted in
Thurman v. Gramley,
The same conclusion is required by a careful reading of subsection (b)(4), which provides:
In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.
Id. § 1915(b)(4). Because an appellant is required to pay the filing fee “[u]pon the filing of a[] ... notice of appeal,” Fed. R.App. P. 3(e), it should be obvious that “appealing a ... judgment,” in subsection (b)(4), refers to the initiation of an appeal. This same conclusion is compelled by the interplay between subsections (b)(1) and (b)(4) because the latter serves to override the former’s requirement that a prisoner pay at least a portion of the fee at the time of filing.
In the absence of any provision of the statute mandating such a contradiction, to read the phrase “appeal a judgment” in subsection (g) to mean something other than what it means in subsections (a)(2) and (b)(4) is nonsensical. As the Supreme Court has observed, “there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning.”
Atlantic Cleaners & Dyers, Inc. v. United States,
Second,
subsection (g) states that a prisoner may not “bring a civil action or appeal a judgment” IFP when he has had three cases dismissed for any of the enumerated reasons. 28 U.S.C. § 1915(g). As Amicus argues, and the Department does not contest, the phrase “bring a civil action” means to initiate a suit.
Cf. Heckler v. Chaney,
In light of the above, we hold that the phrase “appeal a judgment” in subsection (g) refers to the initiation of an appeal. Because Chandler filed his appeal prior to the effective date of the PLRA, he retains the IFP status he secured before the district court and may so proceed before us. See Fed. R.App. P. 24(a). We now consider the merits of his appeal.
B. Adequacy of Chandler’s Pleading that his Eighth Amendment Rights Were Violated
Chandler alleged in his complaint that Corporal Brooks “made a threat against [his] life.” Chandler Compl. at 3. In papers submitted in his opposition to the Department’s motion for dismissal, Chandler elaborated that Corpora] Brooks’s threat had caused him “psychological damage” and that his fear that it would be carried out caused him to have “[n]ightmares and [to] wak[e] up in a frantic sweat.” Furthermore, Chandler claimed that the failure of Lorton officials to transfer him to another facility, or otherwise
*1360
to respond to his administrative complaints, left him vulnerable to attack and created an ongoing risk of injury.
See
Chandler Compl. at 4. At this stage of the proceedings, we must “accept [Chandler’s] factual allegations as true and draw all inferences in [his] favor.”
Harris v. Ladner,
The Eighth Amendment bars the infliction of “cruel and unusual punishments.” U.S. Const.- amend. VIII. The Supreme Court has recognized two categories of prisoner cases as actionable under the amendment: complaints regarding prisoners’ conditions of confinement,
see, e.g., Estelle v. Gamble,
The district court’s memorandum opinion does not reveal whether the court read Chandler’s complaint to allege excessive force, deliberate indifference, or both. In articulating the applicable legal standard, however, the court referred only to cases concerning a prisoner’s conditions of confinement.
See
Mem. Op. at 7 (citing
Farmer,
We exercise
de novo
review over the district court’s dismissal of Chandler’s claim.
See Harris v. Ladner,
We note at the outset that verbal threats, without more, may be sufficient to state a cause of action under the Eighth Amendment.
See Hudson,
[i]t is not hard to imagine inflictions of psychological harm — without corresponding physical harm — that might prove to be cruel and unusual punishment.... [T]he Eighth Amendment prohibits the unnecessary and wanton infliction of “pain,” rather than “injury.” ... “Pain” in its ordinary meaning surely includes a notion of psychological harm.
Id.
Although a verbal threat standing alone is generally inadequate to state a constitutional claim,
see Hopson v. Fredericksen,
Chandler’s allegation does not fall into any of the categories of verbal threat that courts have heretofore recognized as potentially violative of the Eighth Amendment — namely, the repeated threat of physical harm,
see Doe v. Welborn,
Though novel, the facts underlying Chandler’s complaint are similar to those that confronted the Fourth Circuit in
Hudspeth v. Figgins,
Unlike the district court, we are not persuaded that the injuries described in Chandler’s complaint were necessarily insufficient to state a claim under the Eighth Amendment. If we credit his allegations, Corporal Brooks’s threat put Chandler in imminent fear of his life because she was in a position to carry it out. Depending on the gravity of the fear, the credibility of the threat, and on Chandler’s psychological condition, the threat itself could have caused more than
de min-imis
harm and therefore could have been sufficient to state a claim of excessive use of force. These issues cannot be resolved without more factual development. Furthermore, the risk that Corporal Brooks’s threat might be carried out, if left unaddressed (a matter upon which the district court made no findings), could amount to “a sufficiently substantial ‘risk of serious damage to [Chandler’s] future health,’ ”
Farmer,
While the district court may conclude, upon further consideration of a more developed record, that Chandler’s claims lack the necessary factual or legal bases, it cannot be said that his complaint “fail[s] ... to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The district court’s decision to dismiss Chandler’s claim was therefore premature, and its judgment must be reversed.
III. Conclusion
For the foregoing reasons, 28 U.S.C. § 1915(g) does not apply to Chandler’s appeal. Furthermore, because the district court based its dismissal of the portion of Chandler’s complaint alleging Eighth Amendment violations solely upon the erroneous premise that a verbal threat can “never” violate the Eighth Amendment, its judgment is
Reversed.