Ricky Ashley v. E. Dilworth, Co-1, Maximum Security Unit
147 F.3d 715
8th Cir.
1998
Check Treatment

Ricky ASHLEY, Appellant, v. E. DILWORTH, CO-1, Maximum Security Unit, Appellee.

No. 97-4082.

United States Court of Appeals, Eighth Circuit.

Decided June 19, 1998.

147 F.3d 715

Argued April 16, 1998.

a subcontractor liquidated damages caused by a subcontractor.” Id.

In this case, the amount of liquidated damages was $250 per day for failure to complete certain preliminary milestones, $500 per day for failure to meet certain intermediate milestones, and $1500 per day “or FAA imposed penalty, whichever is larger,” for failure to complete the project by April 15, 1992. The contract also stated that the liquidated damages “shall not be deducted as a penalty but shall be considered a liquidation of a reasonable portion of damages that will be incurred by the City should [ISN] fail to complete the work in the time provided in [its] contract.” At the time these amounts were negotiated in the original contract and renegotiated in the change order, the parties knew there was a possibility that the FAA would assess a $1000 per day penalty against the City for failure to complete the security system on time and knew that the City would have to expend additional funds to supervise the project if it was delayed. The exact amount of these costs was difficult to estimate and the parties agreed in the contract that these amounts were a “reasonable portion” of the damages the City would incur. The fact that the FAA penalty was not imposed is irrelevant because proof of actual damages at the time of the breach is not required in public works contracts,

,
, notwithstanding, the City did present evidence of other actual damages in this case. Furthermore, the passing on of the FAA fine is clearly analogous to the passing on of the penalty in the Taos case.

Finally, in support of its claim that the alternative nature of the “$1500 per day or FAA imposed penalty, whichever is larger” is penal, ISN relies on

. The contract in Jennings was a lease agreement in which the landlord had the right to determine at the time of the breach whether to assess liquidated damages or actual damages.
. The court found that the parties to the lease had never agreed upon the amount of probable damages and the landlord‘s “option to take a sum certain or actual damages and to make the election at the time of the breach work[ed] oppressively” and was therefore penal in nature. Id. Jennings is inapposite because here the parties agreed that damages would be difficult to ascertain and thus determined the amount of probable damages at the time the contract was made.

C. The Ryn Estimate

ISN‘s final argument on appeal is that the district court erred in admitting Exhibit 854, the Ryn estimate, into evidence. “The admission of evidence is committed to the sound discretion of the district court.”

. We review only for a clear abuse of discretion, “and a ruling on admissibility will not be reversed on appeal absent a clear and prejudicial abuse of discretion.”
. Having reviewed the record, we find that the admission of the Ryn estimate was not a clear abuse of discretion.

CONCLUSION

Accordingly, we affirm the district court‘s judgment.

Ricky Ashley, Appellant Pro Se.

No Appearance for Appellee.

Before FAGG, BEAM, and HANSEN, Circuit Judges.

PER CURIAM.

Ricky Ashley brought a 42 U.S.C. § 1983 action in July 1997, claiming that defendant prison officials caused him to suffer injury when they repeatedly placed him in proximity to inmates on his enemy alert list. The district court denied him in forma pauperis (IFP) status under the “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), and dismissed his complaint without prejudice, and Ashley appeals. We reverse and remand for further proceedings.

In denying leave to proceed IFP, the district court found that Ashley had made the requisite poverty showing under 28 U.S.C. § 1915(a), but that he had had at least three prior complaints dismissed as frivolous, had not alleged any facts to indicate he was under imminent danger of serious physical injury, and was thus ineligible for IFP status under section 1915(g) (prisoner may not bring civil action or appeal if prisoner has had three prior actions or appeals dismissed for frivolousness, maliciousness, or failure to state a claim, “unless the prisoner is under imminent danger of serious physical injury“). While denying Ashley leave to file his complaint IFP, the district court did grant him leave to proceed IFP on appeal. Ashley continues to argue that he is in imminent danger of physical injury by defendants’ repeated placement of him around his enemies.

The in forma pauperis statute, 28 U.S.C. § 1915, was substantially amended by the Prison Litigation Reform Act of 1995.1 The purpose of the Act was to require all prisoner-litigants to pay filing fees in full, with the only issue being whether the inmate pays the entire filing fee at the initiation of the proceeding or in installments over a period of time. See

(citing
). Section 1915(g) denies the installment payment method to those prisoners who have had three previous cases or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted (“three strikes“). We stress that the Act does not close the courthouse doors to prisoners who frequently file frivolous lawsuits; rather, it merely makes them pay the full ordinary filing fees sooner rather than later.

There is one exception to the “three strikes” rule: Section 1915(g) further provides that, even if a prisoner has exhausted his three strikes, he will be permitted to proceed IFP (i.e., pay the filing fee in installments rather than up front) if he is under imminent danger of serious physical injury. As the statute‘s use of the present tense verbs “bring” and “is” demonstrates, an otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at the time of filing. Allegations that the prisoner has faced imminent danger in the past are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan. Contra

(proper focus must be the imminent danger faced by the inmate at the time of the alleged incident and not at the time the complaint is filed).

After a careful review of the pleadings, we agree with Ashley that he sufficiently alleged imminent danger of serious physical injury to meet the exception to the “three strikes” rule of section 1915(g). According to the sworn allegations of his amended complaint, Ashley first notified defendants in September 1993 that he was being placed near inmates on his enemy list. In June 1996, defendants threatened to transfer him so as to place him near an enemy, intending that he be harmed, and in July 1996, he actually was placed near his enemy and was attacked with a sharpened, nine-inch screwdriver. Ashley again notified defendants in May 1997 of his placement near listed enemies, and on June 28, 1997, he was again attacked by the same enemy who was then armed with a butcher knife, as a result of defendants’ actions. Ashley supported the allegations of his complaint with documentary evidence, including corroborative prison disciplinary reports. In short, because Ashley has properly alleged an ongoing danger, and because his complaint was filed very shortly after the last attack, we conclude that Ashley meets the imminent danger exception in § 1915(g).

Accordingly, we reverse the judgment of the district court and remand the case for further proceedings with directions that Ashley be permitted to file his complaint pursuant to § 1915 without the full payment of the filing fee up front.

BEAM, Circuit Judge, dissenting.

I respectfully dissent from that portion of the court‘s opinion that will allow a prisoner to utilize section 1915(g) to assert a claim for past damages. In my view, the court today creates “a loophole Congress surely did not intend in its stated goal of discouraging frivolous and abusive prison lawsuits.”

(quotations omitted). Here, Ashley seeks compensatory and punitive damages for alleged events that are months—if not years—old, as well as declaratory and injunctive relief of a more immediate nature. Under the statute, I believe we are limited by the “three strikes” provision to the remedy of prospective relief only.

Congress enacted the Prison Litigation Reform Act with the principal purpose of deterring frivolous prisoner litigation by instituting economic costs for prisoners wishing to file civil claims.

. To that end, it created a system of “monetary and procedural disincentives to the filing of meritless cases.”
. That system withstands Constitutional scrutiny.
.

The “three strikes” provision directs that prisoners who have had three previous civil suits or appeals dismissed as malicious, frivolous, or for failure to state a claim must prepay the entire filing fee. 28 U.S.C. § 1915(g). In passing the “three strikes” provision, members of Congress stated that the purpose of the provision is to require prisoners to pay for filing a lawsuit in the same way as nonprisoners. See

(Heaney, J., dissenting). The requirement of up-front payment for repeat frivolous filers has one narrow and important exception: a prisoner who “is under imminent danger of serious physical injury” will be permitted to file in forma pauperis (IFP) and to make installment payments. 28 U.S.C. § 1915(g).

By requiring that the prisoner “is,” in imminent danger of being physically harmed, the statute implies that his or her remedy is protection from such harm. In other words, by its plain language, the statute limits the relief we can offer such a prisoner to prospective relief for the actions that have caused the immediate risk of harm. There is no authority for a wholesale consideration of issues unrelated to the threat of imminent danger. But see

. I find no authority under this statutory exception to file a lawsuit on the installment plan seeking an award of damages for alleged actions that have happened in the past. Relevant as such actions may be as evidence of a risk of present danger, they cannot form the basis of a claim for which a prisoner can obtain IFP status under this narrow exception. Such a prisoner is, of course, free to pursue such a claim and pay for it. We are concerned here with the narrow circumstance in which a court can and should allow a prisoner who is in immediate danger of harm to proceed IFP. Accordingly, to the extent that today‘s decision will allow Ashley to seek damages for alleged events dating back to 1993, I respectfully dissent.

Rehearing and rehearing en banc denied September 17, 1998.

See 1998 WL 652235.

Notes

1
Pub.L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996) (codified at 28 U.S.C. § 1915 (West Supp.1997)).