Tomi Edward Jennings, Jr. v. Natrona County Detention Center Medical Facility, Tomi Edward Jennings, Jr. v. Natrona County Detention Center Officer, in Her Official Capacity, A/K/A Tammy McNutt

Citations: 175 F.3d 775; 1999 Colo. J. C.A.R. 2605; 1999 U.S. App. LEXIS 7618Docket: 98-8032

Court: Court of Appeals for the Tenth Circuit; April 20, 1999; Federal Appellate Court

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Tomi Edward Jennings, Jr. filed two civil rights actions under 42 U.S.C. § 1983 against the Natrona County Detention Center Medical Facility and Officer Tammy McNutt, alleging violations of the Eighth Amendment due to inadequate medical care and deliberate indifference, respectively. In his first case (No. 98-8032), Jennings claimed he was denied necessary medical attention, seeking both medical care and $10,000 for his unmet needs. The district court dismissed this action for failure to state a claim, noting the absence of a county policy causing harm, a lack of factual support for claims of cruel and unusual punishment, and insufficient evidence of serious harm or deliberate indifference.

In the second case (No. 98-8035), Jennings sought the discharge of Officer McNutt and $25,000 due to alleged mistreatment during his detention. This claim was also dismissed as frivolous for similar reasons, as it failed to demonstrate cruel and unusual punishment. The district court denied Jennings's motion to appeal in forma pauperis, citing his history of prior frivolous claims that invoked the "three strikes" provision under 28 U.S.C. § 1915(g). However, the Tenth Circuit reversed the district court's assessment of Jennings's prior claims, allowing him to proceed with both appeals in forma pauperis.

Section 1915(g) of the in forma pauperis statute, as modified by the Prison Litigation Reform Act of 1995, stipulates that a prisoner cannot file a civil action or appeal if they have had three or more prior cases dismissed as frivolous, malicious, or failing to state a claim, unless they are in imminent danger of serious physical injury. This provision requires frequent filer prisoners to pay the full filing fee for civil actions and appeals. The current matter involves Mr. Jennings, whose prior cases were assessed to determine if he had three qualifying dismissals necessitating upfront payment. The district court considered Jennings' current case and an action against the Natrona County Detention Center Medical Facility as strikes, along with an earlier habeas corpus case dismissed for failure to exhaust state remedies and state a claim. 

The court addressed whether a habeas corpus action qualifies as a strike under 1915(g). It concluded that habeas corpus petitions are not classified as "civil actions" for the purposes of this statute, aligning with the precedent set in United States v. Simmonds, which indicated that the term "civil action" does not encompass habeas corpus proceedings. Therefore, the district court erred by counting Jennings' habeas corpus action as a strike.

Additionally, the district court counted two earlier civil rights complaints as strikes, despite one of them, underlying appeal No. 98-8035, still being pending when the notice of appeal was filed for No. 98-8032. As a result, the dismissal of the latter was subject to further review, questioning the propriety of counting nonfinal cases as strikes.

The district court's decision to count a dismissal as a strike under 28 U.S.C. § 1915(g) was determined to be erroneous, as it treated the dismissal as final before the litigant had the chance to appeal. This ruling did not impact appeal No. 98-8032 but formed the basis for the conclusion that Mr. Jennings had accumulated three strikes, barring him from appealing the dismissal of his second 1983 action in forma pauperis. The court emphasized that counting strikes before a litigant has exhausted or waived appeal rights risks penalizing individuals for nonculpable actions. Referencing Adepegba v. Hammons, it was noted that a strict interpretation of § 1915(g) could unjustly prevent appeals of potentially valid claims. Consequently, a dismissal under § 1915(e)(2)(B) should not be counted as a strike until the litigant has exhausted or waived appeal options. The court ruled that the district court mistakenly counted the dismissals of Mr. Jennings’ complaints as strikes while his appeals were pending, allowing him to proceed with his appeal for the April 1998 complaint. 

For future reference, the court clarified the following guidelines regarding strikes under § 1915(g):
1. Dismissals of habeas corpus or § 2255 proceedings do not count as strikes.
2. A district court dismissal under § 1915(e)(2)(B) does not count as a strike until the litigant has exhausted or waived appeal rights.
3. If an appellate court affirms a district court dismissal, it counts as a single strike.
4. If an appellate court reverses a dismissal, it does not count as a strike.
5. If an appeal of a dismissed action is deemed frivolous, both the dismissal and the appeal count as strikes.
6. If an appeal of a defendant-favorable judgment is dismissed as frivolous, it counts as one strike.

Mr. Jennings' appeals, Nos. 98-8032 and 98-8035, were deemed frivolous under 28 U.S.C. § 1915(e)(2)(B). In appeal No. 98-8032, the district court found that Jennings failed to identify any specific defendant responsible for his alleged medical grievances, which primarily revolved around disagreements about his medication. The court cited that a delay in medical care only constitutes an Eighth Amendment violation if there is deliberate indifference leading to substantial harm, which Jennings did not demonstrate. The evidence showed that he received medical attention and prescriptions, indicating that his claims reflected mere differences of opinion regarding treatment, not constitutional violations. Additionally, the county could only be liable under § 1983 for its own unconstitutional policies, which Jennings did not allege. This appeal resulted in two strikes against Jennings.

In appeal No. 98-8035, Jennings named a specific officer but again failed to sufficiently allege a constitutional violation. His claims were too vague to establish that his essential needs were denied or that a responsible official acted with deliberate indifference. This appeal also lacked a legal basis and resulted in two more strikes. Consequently, Jennings has accumulated four strikes under § 1915(g), preventing him from proceeding in forma pauperis in future federal lawsuits, except for habeas petitions involving imminent danger of serious physical injury.

The appeals are dismissed, as the court determined that oral argument would not aid in their resolution.

Claims in a 2254 petition may be interpreted as actions under 1983, and if dismissed, they count as a prior occasion for 28 U.S.C. 1915(g) purposes. A 2254 habeas petition was correctly viewed as an action under 1983, not a collateral attack on confinement duration. Frivolous appeals from such habeas actions that are construed as civil rights actions also count as prior occasions. Mr. Jennings' 1997 action strictly involved habeas claims under 2254. The court is bound by prior panel decisions unless altered by en banc consideration or a Supreme Court ruling. Any inconsistent prior cases with the current holding are overruled. The en banc court has agreed that a case is not counted as a "prior occasion" until its decision is final, either through the completion of the appeal process or the passage of time without an appeal. Mr. Jennings has initiated at least three actions in the District of Wyoming, including an earlier case dismissed in October 1998.