Garcia v. Silbert, 141 F.3d 1415 (10th Cir. 1998). · Go Syfert
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Garcia v. Silbert, 141 F.3d 1415 (10th Cir. 1998). Cases Citing This Book View Copy Cite
36 citation events (24 in the last 25 years) across 7 distinct courts.
Strongest positive: Childs v. Miller (ca10, 2013-04-23) · Strongest negative: Smith v. District of Columbia (cadc, 1999-06-25)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited "but see" Smith v. District of Columbia
D.C. Cir. · 1999 · signal: but see · confidence high
But see Garcia v. Silbert, 141 F.3d 1415 , 1417 n.1 (10th Cir.1998) (stating that § 1915(g) is not jurisdictional and electing to reach merits although § 1915(g) precluded appellant from proceeding without fee payment); Jac kson v. Stinnett, 102 F.3d 132, 136 (5th Cir.1996) (“[Tjhere is no indication that Congress meant the new i.f.p. requirements to be jurisdictional.”).
discussed Cited as authority (rule) Childs v. Miller
10th Cir. · 2013 · confidence medium
As we explained in Green v. Nottingham, 90 F.3d 415, 420 (10th Cir.1996), we “must consider cases dismissed prior to the effective date of § 1915(g) in determining whether the criteria for dismissal under § 1915(g) have been satisfied.” Garcia v. Silbert, 141 F.3d 1415, 1417 (10th Cir.1998).
discussed Cited as authority (rule) Gibbs v. Ryan
3rd Cir. · 1998 · confidence medium
The court of appeals reversed concluding "the plain language of S 1915(g) restricts a 5 prisoner's ability to `bring a civil action or appeal a judgment in a civil action' in forma pauperis." Id. at 1416 (emphasis added).
discussed Cited as authority (rule) Rivera v. Allin
11th Cir. · 1998 · confidence medium
See Wilson, 148 F.3d at 604 (“[W]e ... hold that dismissals of previous actions entered prior to the effective date of the PLRA may be counted toward the ‘three strikes’ referred to in 28 U.S.C. § 1915 (g).”); Garcia v. Silbert, 141 F.3d 1415, 1417 (10th Cir.1998) (“[Cjourts must consider cases dismissed pri- or to [April 26,1996] in determining whether the criteria for dismissal under § 1915(g) have been satisfied.”); Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d 143, 144 (3d Cir.1997) (‘We ... join those [other] circuits in holding that dismissals for frivolousne…
discussed Cited "see" Aaron Isby v. Richard Brown
7th Cir. · 2017 · signal: see · confidence high
See 141 F.3d 1415 , 1417 n.1 (10th Cir. 1998); see also Smith v. Veterans Admin., 636 F.3d 1306 , 1309–10 (10th Cir. 2011) (“we have long recognized that we retain discretion to ignore the three‐strikes rule and reach the merits of an appeal”) (citation omitted).
discussed Cited "see" Isby v. Brown
7th Cir. · 2017 · signal: see · confidence high
See 141 F.3d 1415 , 1417 n.1 (10th Cir. 1998); see also Smith v. Veterans Admin., 636 F.3d 1306, 1309-10 (10th Cir. 2011) (“we have long recognized that we retain discretion to ignore the three-strikes rule and reach the merits of an appeal”) (citation omitted).
discussed Cited "see" Brown v. Eppler
10th Cir. · 2013 · signal: see · confidence high
See Garcia v. Silben, 141 F.3d 1415 , 1417 n. 1 (10th Cir.1998); Brennan v. U.S. Gypsum Co., 330 F.2d 728, 729 (10th Cir.1964) (holding failure to pay docketing fee does not deprive this court of jurisdiction). 6 .
discussed Cited "see" Smith v. Veterans Administration
10th Cir. · 2011 · signal: see · confidence high
See Dubuc v. Johnson, 314 F.3d 1205, 1208-10 (10th Cir.2003) (holding that under Tenth Circuit precedent, Garcia v. Silbert, 141 F.3d 1415 , 1417 n. 1 (10th Cir.1998), “the court retains discretion to ignore the ‘in no event’ language of’ *1310 § 1915(g), but that such discretion nevertheless “should be exercised only in extraordinary circumstances”).
cited Cited "see" Dubuc v. Johnson
10th Cir. · 2003 · signal: see · confidence high
See Garcia v. Silbert, 141 F.3d 1415 , 1417 n.1 (10th Cir. 1998).
cited Cited "see" Dubuc v. Johnson
10th Cir. · 2003 · signal: see · confidence high
See Garcia, 141 F.3d at 1417 n. 1.
cited Cited "see" Dubuc v. Johnson
10th Cir. · 2003 · signal: see · confidence high
See Garcia, 141 F.3d at 1417 n. 1.
discussed Cited "see" Canell v. Lightner
9th Cir. · 1998 · signal: see · confidence high
See Garcia v. Silbert, 141 F.3d 1415 (10th Cir.1998) (holding that § 1915(g) does not apply to actions filed before the Act took effect); Luden v. Jockisch, 133 F.3d 464 (7th Cir.1998) (holding that § 1915(g) applies only to cases in which the complaint is filed after the effective date of the Act); White v. Gregory, 87 F.3d 429, 430 (10th Cir.) (holding that § 1915(g) does not apply to cases in which the notice of appeal was filed before the effective date of the Act), cert. denied, -U.S. -, 117 S.Ct. 528 , 136 L.Ed.2d 415 (1996).
discussed Cited "see" 98 Cal. Daily Op. Serv. 3490, 98 Daily Journal D.A.R. 4827 Alvin Howard Canell v. Officer Roderick Lightner Robert Skipper, Multnomah County Sheriff Multnomah County Detention Center
9th Cir. · 1998 · signal: see · confidence high
See Garcia v. Silbert, 141 F.3d 1415 (10th Cir.1998) (holding that § 1915(g) does not apply to actions filed before the Act took effect); Lucien v. Jockisch, 133 F.3d 464 (7th Cir.1998) (holding that § 1915(g) applies only to cases in which the complaint is filed after the effective date of the Act); White v. Gregory, 87 F.3d 429, 430 (10th Cir.) (holding that § 1915(g) does not apply to cases in which the notice of appeal was filed before the effective date of the Act), cert. denied, --- U.S. ----, 117 S.Ct. 528 , 136 L.Ed.2d 415 (1996).
discussed Cited "see, e.g." Davidson v. Buchanan
5th Cir. · 2005 · signal: see also · confidence low
Jackson v. Stinnett, 102 F.3d 132, 136 (5th Cir.1996); see also Garcia v. Silbert, 141 F.3d 1415 , 1417 n. 1 (10th Cir.1998) (stating that section 1915(g) is not jurisdictional and electing to reach the merits where section 1915(g) should have precluded claimant from appearing before the court without prepayment of fees); McDowell v. Del.
discussed Cited "see, e.g." Chandler v. District of Columbia Department of Corrections
D.C. Cir. · 1998 · signal: see also · confidence medium
Compare Adepegba v. Hammons, 103 F.3d 383, 386-87 (5th Cir.1996) (holding that application of section 1915(g) to appeals filed prior to April 26 is not impermissibly retroactive) with Canell v. Lightner, 143 F.3d 1210, 1212-13 , (9th Cir.1998); Abduh-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) (“Section 1915(g) governs bringing new actions or filing new appeals ... rather than the disposition of existing cases.”); White v. Gregory, 87 F.3d 429, 430 (10th Cir.), cert. denied, — U.S. -, 117 S.Ct. 528 , 136 L.Ed.2d 415 (1996); see also Garcia v. Silbert, 141 F.3d 1415, 1416 (10th Ci…
Retrieving the full opinion text from the archive…
Jesse L. Garcia
v.
Mimi H. Silbert, President/ceo/delancey Street/new Mexico and Peter Antenirol, Acting Medical Nurse, in Their Individual and Official Capacities, New Mexico Corrections Department, Amicus Curiae
96-2154.
Court of Appeals for the Tenth Circuit.
Apr 22, 1998.
141 F.3d 1415
Published
Pinpoint authority: bottom 53%

141 F.3d 1415

98 CJ C.A.R. 1956

Jesse L. GARCIA, Plaintiff-Appellant,
v.
Mimi H. SILBERT, President/CEO/Delancey Street/New Mexico
and Peter Antenirol, Acting Medical Nurse, in
their individual and official
capacities, Defendants-Appellees.
New Mexico Corrections Department, Amicus Curiae.

No. 96-2154.

United States Court of Appeals,
Tenth Circuit.

April 22, 1998.

Submitted on the briefs:[*]

Adam G. Kurtz, Albuquerque, NM, for Plaintiff--Appellant.

Nick D'Angelo, General Counsel, New Mexico Corrections Department (Ida M. Lujan, Special Assistant Attorney General, Santa Fe, NM, on the Brief), as amicus curiae, by leave of Court, in support of Appellees.

Before TACHA, KELLY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

[*~1415]1

Today we determine whether a provision of the Prison Litigation Reform Act of 1995 ("PLRA"), 28 U.S.C. § 1915(g), applies to actions pending when the PLRA took effect. Based on the statutory language of § 1915(g), we conclude that it applies only to actions brought after the effective date of the PLRA. Consequently, we reverse the judgment of the district court and remand for further proceedings.

2

Jesse Garcia, currently incarcerated in a New Mexico correctional facility, filed this 42 U.S.C. § 1983 action on April 9, 1996. He claims that an alleged failure to provide adequate medical and dental care violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution. On April 18, Mr. Garcia was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The PLRA was enacted on April 26, 1996. It provides:

3

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section 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 claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

4

28 U.S.C. § 1915(g) (emphasis added). Shortly thereafter, relying on the newly enacted § 1915(g), the district court found that Garcia had filed at least three actions in the District of New Mexico that had been dismissed as frivolous and rejected his present claims sua sponte.

5

The district court's decision was in error because the plain language of § 1915(g) restricts a prisoner's ability to "bring a civil action or appeal a judgment in a civil action" in forma pauperis. 28 U.S.C. § 1915(g) (emphasis added). It does not apply to actions pending at the time the PLRA went into effect. See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) ("Section 1915(g) governs bringing new actions or filing new appeals--the events that trigger an obligation to pay a docket fee--rather than the disposition of existing cases."); see also Landgraf v. USI Film Prods., 511 U.S. 244, 275 n. 29, 114 S.Ct. 1483, 1502 n. 29, 128 L.Ed.2d 229 (1994) ("Of course, the mere fact that a new rule is procedural does not mean that it applies to every pending case. A new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime...."); White v. Gregory, 87 F.3d 429, 430 (10th Cir.1996) (holding that PLRA does not apply to appellant's motion to proceed in forma pauperis on appeal when notice of appeal filed before PLRA enacted). Because it is uncontested that Garcia brought his claim before the district court prior to the effective date of the PLRA, we conclude that the district court erred in dismissing his claim under § 1915(g).[1]

6

The New Mexico Corrections Department argues that our decision in Green v. Nottingham, 90 F.3d 415, 420 (10th Cir.1996), mandates a different result.[2] The state's argument, however, misreads that decision. Although one court has relied on our decision in Green to conclude that § 1915(g) applies to pending cases, see Adepegba v. Hammons, 103 F.3d 383, 385-86 (5th Cir.1996), Green merely holds that courts must consider cases dismissed prior to the effective date of § 1915(g) in determining whether the criteria for dismissal under § 1915(g) have been satisfied. Green, however, does not address whether § 1915(g) applies to suits pending at the PLRA's enactment. That question is answered by plain meaning analysis.

[*~1416]7

REVERSED and REMANDED for further proceedings not inconsistent with this opinion.

*

The case is unanimously ordered submitted without oral argument pursuant to Fed. R.App. P. 34(a) and 10th Cir. R. 34.1.9

1

Although neither party addresses the issue, Garcia's appeal before this court, filed over two months after the PLRA went into effect, is governed by § 1915(g). Because Garcia's complaint does not allege imminent harm and he has had at least three prior actions dismissed as frivolous, he should not have been permitted to appear before this court without full prepayment of all required fees. Nevertheless, "[s]ection 1915(g) is not a jurisdictional limitation ...," Pigg v. Federal Bureau of Investigation, 106 F.3d 1497, 1497 (10th Cir.1997), and we therefore elect to reach the merits of this action. That said, Mr. Garcia is not excused from payment of his fees and we direct the clerk accordingly to enter an order requiring Mr. Garcia to remit the entire balance due this court

2

Alternatively, the New Mexico Corrections Department argues in its amicus brief that we should affirm based on the district court's findings that the complaint was frivolous or malicious and failed to state a claim upon which relief could be granted. Upon careful review of the district court's memorandum opinion, however, we cannot discern such findings. Consequently, our review is limited to whether dismissal was proper under § 1915(g). Nothing in this opinion should be construed to prevent the district court on remand from dismissing Mr. Garcia's claims if it finds they are frivolous or malicious at that time. We decline to do so on this appeal, however, because the present record does not support such a conclusion