Case Information
*1 Before: WALKER, LEVAL, and POOLER, Circuit Judges .
Appeal from a judgment of the United States District Court for the Southern District of New York (Leonard B. Sand, J. ) denying Bennie Gibson’s motion for leave to proceed in forma pauperis and dismissing his complaint. The district court concluded that Gibson, who had been charged with a crime and was being held prior to trial at a mental health facility in New York at *2 the time he filed his complaint, was a “prisoner” within the meaning of the Prison Litigation Reform Act, and thus was barred from proceeding in forma pauperis because he had previously submitted three or more frivolous filings in federal court. See 28 U.S.C. § 1915(g). Because we conclude that Gibson was indeed a “prisoner” within the meaning of the Act, we affirm the judgment of the district court.
Affirmed.
____________________ BENNIE GIBSON, on the brief , Malone, NY, pro se . MICHELLE SKINNER (Sara L. Shudofsky, on the brief ), Spears & Imes LLP, New York, NY, pro bono amicus curiae in support of Appellant .
ELLEN RAVITCH (Stephen J. Mcgrath, on the brief ) (Michael A. Cardozo, Corporation Counsel of the City of New York), New York, NY, for Municipal Defendants-Appellees .
SUDARSANA SRINIVASAN (Barbara D. Underwood, Solicitor General, Steven C. Wu, Assistant Solicitor General, on the brief ) (Eric T. Schneiderman, Attorney General of the State of New York), New York, NY, amicus curiae in support of Appellees .
PER CURIAM:
This appeal presents the question of whether a person who has been charged with a crime and is being held prior to trial under a temporary order of observation at a mental health institution, pursuant to New York state law, is a “prisoner” within the meaning of the Prison Litigation Reform Act. See 28 U.S.C. § 1915(g). We hold that such a person is indeed a “prisonеr” within the meaning of the PLRA and thus is subject to the Act’s limitations on proceeding in forma pauperis in federal court.
BACKGROUND
Bennie Gibson was charged with criminal mischief in the third degree in violation of New York state law. A state court judge found that Gibson was not competent to stand trial. Thе judge filed a temporary order of observation, pursuant to New York Criminal Procedure Law Section 730.40, transferring Gibson to the custody of the state’s mental health commissioner for a period not to exceed ninety days, so thаt Gibson could receive “treatment . . . to restore [his] capacity” to stand trial on the criminal charge against him. New York law distinguishes between “final” and “temporary order[s] of observation.” N.Y. Crim. Proc. Law § 730.40(1). Both orders transfer a pеrson “to the custody of the [state’s mental health] commissioner for care and treatment in an appropriate institution for a period not to exceed ninety days,” although a person detained under a final order of observation may then be held for a longer period of time at “an appropriate hospital.” Id. Gibson was eventually sent to Kirby Forensic Psychiatric Facility (“Kirby”), a state-run mental health institution in New York. [1] *4 While Gibson was detained at Kirby, he filed a complaint in federal district court alleging that various defendants had violated his civil rights. Gibson also requested that the district court permit him to proceed in forma pauperis , so that he would not have to pay the ordinary court fees rеquired to file a complaint.
While federal law generally permits a district court to waive such fees for those who
cannot afford them,
see
28 U.S.C. § 1915(a)(1), Congress passed the Prison Litigation Reform
Act (“PLRA”) in 1995 in an attempt to limit abuse of the legal system by prisoners who
repeatedly file frivolous lawsuits.
See Nicholas v. Tucker
,
The district court concluded that even though Gibson was not confined in a jail or a prison, he was nonetheless a “prisoner” within the meaning of the PLRA and thus was subject to the Act’s restrictions on proceeding in forma pauperis in federal court. Moreover, Judge Sand determined that because of Gibson’s previous frivolous filings, he was barred by the PLRA from filing another complaint withоut first paying the required fees. [2] Accordingly, Judge Sand denied *5 Gibson’s motion to proceed in forma pauperis and ultimately dismissed his complaint.
Following Gibson’s appeal to this Court, we initially requested that the district court
make certain findings of fact related to Gibson’s detention at Kirby in order to supplement the
record and assist appellаte review. While we requested that the district court make certain
factual findings, we retained jurisdiction over Gibson’s appeal in accordance with our decision in
United States v. Jacobson
,
On appeal, Gibson argues that he was not a “рrisoner” within the meaning of the PLRA and thus was not subject to the PLRA’s restrictions on filing actions in federal court without paying the required fees. For the following reasons, we disagree.
DISCUSSION
“We review
de novo
a district court’s ruling pursuant to 28 U.S.C. § 1915.”
Polanco v.
Hopkins
,
We do not believe, however, that federal law requires a district court to specify, in an
order dismissing a prisoner’s complaint pursuant to 28 U.S.C. § 1915(g), the particular orders on
which the court relies.
Cf. Harris v. City of N.Y.
,
Nonetheless, we note that when a district court dismisses a prisoner’s complaint pursuant to Section 1915(g) without citing or otherwise identifying the three prior dismissals that provide the basis for the court’s determination, and the prisoner argues on appeal that he had not in fact filed three prior actions that had been dismissed under cirсumstances described in Section 1915(g) and thus had not accumulated three strikes under the PLRA, it may in certain circumstances be necessary for a reviewing court to remand the case for further proceedings in order to determinе whether the prisoner had indeed accumulated three strikes.
Federal law generally prohibits a district court from permitting “a prisoner” to file a lawsuit without first paying the ordinary fees required of other litigants, “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 clаim upon which relief may be granted.” 28 U.S.C. § 1915(g). Moreover, the PLRA states that “the term ‘prisoner’” includes “any person . . . detained in any facility who is accused of . . . violations of criminal law.” Id. § 1915(h).
We have previously made clear that the relevant time at which a person must be “a
prisoner” within the meaning of the PLRA in order for the Act’s restrictions to apply is “the
moment the plaintiff files his complaint.”
Harris v. City of N.Y.
,
Under New York law, “when a defendant is in the custody of the commissioner [of mental health] pursuant to a temporary order of observation . . . , the criminal action pending against the defendant in the сourt that issued such order is suspended until the superintendent of *7 the institution in which the defendant is confined determines that he is no longer an incapacitated person.” N.Y. Crim. Proc. Law § 730.60(2) (emphasis added); see also N.Y. Crim. Proc. Law § 730.10(3) (defining “[c]ommissioner” (internal quotation marks omitted)). While the criminal proceedings against a defendant being held pursuant to a temporary order of observation are suspended, New York law makes clear that those proceedings must later “ terminate for all purposes” if “the defendant is in the custody of the commissioner at the expiration of the period prescribed in [the] temporary order of observation.” N.Y. Crim. Proc. Law § 730.40(2) (emphasis added).
Because New York law explicitly specifies that the criminal proceedings against a
person, such as Gibson, who is being held in a mental health institution pursuant to a temporary
order of observation, are merely suspended during his confinement and observation—and only
terminate if the person is still being held at the time the temporary order expires or the criminal
charges at issue are otherwise dropped—we have little trouble concluding that Gibson was still a
“person . . . detained in [a] facility who is accused of . . . [a] violation[] of criminal law” at the
time he filed his complaint, and thus was a “prisoner” under the PLRA. 28 U.S.C. § 1915(h)
(internal quotation marks omitted).
See Kalinowski v. Bond
,
CONCLUSION
For the foregoing reasons, and because we find no merit in Gibson’s remaining arguments, the judgment of the district court is AFFIRMED.
Notes
[1] Gibson was initially transferred to Creedmoor Psychiatric Center because officials “mistakenly believed” that the state court judge had issued a final, as opposed to temporary, order of observation. Once they learned of their mistake, however, they transferred Gibson to Kirby. As the district court noted: Incapacitаted defendants are treated very differently depending on whether they are committed pursuant to a Final Order of Observation or a Temporary Order of Observation. An individual committed under a Final Order is normally committed to a civil hospital, where he is converted to civil status, and receives care and treatment intended to enable him to function in the community. An individual committed under a Temporary Order of Observation is normally committed to a forensic hospital where he receives treatment designed to render him capable of standing trial on the criminal charges against him. Because the goal of treatment was to restore Gibson’s capacity rather than to prеpare him for release into community, the [New York State Office of Mental Health] transferred Gibson from Creedmoor to Kirby. (footnotes omitted).
[2] In concluding that Gibson was subject to the PLRA’s restrictions, the district court
noted Gibson’s “repeated filing of frivolous and non-meritorious actions” and cited an August
2000 order of the Southern District of New York that “barred [Gibson] from filing any further
actions in this Court without first applying in advance for leave to file any new complaint.”
(internal quotаtion mark omitted).
Gibson’s
amicus
counsel argues on appeal that the district court erred by not explicitly
referring to three of Gibsons’s lawsuits that had been dismissed under circumstances described
in 28 U.S.C. § 1915(g) and thus qualified as “strikes” within the meaning of the PLRA.
Kalinowski v. Bond
,
[3] Gibson signed his complaint and handed it over to be mailed to officials at Kirby on
November 20, 2008. His complaint was received by the district court on Decеmber 2, 2008.
While papers are generally deemed filed on the date they are received by a court,
see
Fed. R.
Civ. P. 5(d)(2), a complaint submitted by a prisoner proceeding
pro se
is deemed filed on the
date that he “turn[s] his complaint over to prison officials.”
Dory v. Ryan
,