In re: Antoine Jone

Filing

OPINION filed [1323974] PER CURIAM OPINION (Pages: 5) [10-5234]

USCA Case #10-5234

Document #1323974

Filed: 08/12/2011

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided August 12, 2011
No. 10-5234
IN RE: ANTOINE JONES,
PETITIONER

On Motion for Leave to Proceed In Forma Pauperis

Antoine Jones, appearing pro se, was on the motion for
leave to proceed in forma pauperis.
Before: GINSBURG, ROGERS, and BROWN, Circuit Judges.
The question in this case is whether a
PER CURIAM:
dismissal of a complaint for failure to state a claim based on
Heck v. Humphrey, 512 U.S. 477 (1994), counts as a “strike”
under the Prison Litigation Reform Act (“PLRA”), 38 U.S.C.
§ 1915(g). For the following reasons, we hold that it does.
I.
Antoine Jones petitioned this court on July 14, 2010, for a
writ of mandamus to compel the district court to grant him in
forma pauperis status and permit him to file his civil rights

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damages suit pursuant to 42 U.S.C. § 1983. Jones also has
moved for leave to proceed on appeal in forma pauperis. At the
time of these filings, Jones was an inmate at the United States
Penitentiary in Florence, Colorado. This court held in abeyance
consideration of Jones’ mandamus petition and two motions for
leave to appeal in forma pauperis, pending a decision on
whether the PLRA’s filing-fee requirements, 28 U.S.C.
§ 1915(b), apply to a petition for a writ of mandamus seeking to
compel the district court to file civil pleadings. See In re
Antoine Jones, No. 09-5085 (D.C. Cir. argued Oct. 10, 2010)
(hereinafter, “Jones I”).
Following the court’s decision in In re Grant, 635 F.3d
1227, 1232 (D.C. Cir. 2011), and issuance of an order to show
cause in Jones I, the court on April 25, 2011, ordered Jones to
show cause in the instant case why he should not be required to
pay the appellate filing fee before this court would consider his
petition and related motions. It appeared that Jones had, while
incarcerated, filed at least three civil actions or appeals that had
been dismissed on the grounds that they were “frivolous,
malicious, or fail[ed] to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915(g). See Order to Show Cause, In re
Antoine Jones, No. 10-5234 (D.C. Cir. Apr. 25, 2011)
(hereinafter “Jones II”). The April 25, 2011 Order cited: Jones
v. Delaney, 610 F. Supp. 2d 46, 48 (D.D.C. 2009) (dismissed
under § 1915A for failure to state a claim); Jones v. Gikas, No.
07cv1068, 2008 WL 2202264 (D.D.C. May 27, 2008)
(dismissed for failure to state a claim based on Heck v.
Humphrey); Jones v. Kirchner, No. 07cv1063, 2008 WL
2202220 (D.D.C. May 27, 2008) (same); Jones v. Yanta, No.
07cv1172, 2008 WL 2202219 (D.D.C. May 27, 2008) (same).
II.
Section 1915(g) provides:

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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.
28 U.S.C. § 1915(g). Under Heck v. Humphrey, a section 1983
damages claim that is based on conduct whose unlawfulness
would demonstrate the invalidity of a conviction or sentence is
not cognizable unless the conviction or sentence has been
invalidated or called into question by issuance of a writ of
habeas corpus. 512 U.S. at 486–87. In Heck v. Humphrey, the
prisoner’s complaint alleged that his conviction violated his
constitutional rights. Id. at 479. The Court held that in order to
recover damages for an allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a
section 1983 plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” 512
U.S. at 486–87. The Court clarified, however, that “if the
district court determines that the plaintiff’s action, even if
successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed . . . .” Id. at 487 (emphasis in
original). Jones does not deny that three of the four cited cases
were dismissed for failure to state a claim under Heck v.
Humphrey. See Pet’r’s Response 1–3.

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The circuit courts of appeal to address the question have
held that the dismissal of a section 1983 lawsuit for damages
based on prematurity under Heck v. Humphrey is for failure to
state a claim, and constitutes a “strike” under the PLRA, 28
U.S.C. § 1915(g). See Smith v. Veterans Admin., 636 F.3d 1306,
1312 (10th Cir. 2011) (citing Davis v. Kan. Dep’t of Corr., 507
F.3d 1246, 1248, 1249 (10th Cir. 2007)); see also Hamilton v.
Lyons, 74 F.3d 99, 103 (5th Cir. 1996); cf. McCurdy v. Sheriff of
Madison County, 128 F.3d 1144, 1145 (7th Cir. 1997). The
Tenth Circuit in Smith held, relying on its precedent in Davis,
that because the favorable termination of a habeas case or direct
appeal is an “essential element of a prisoner’s civil claim for
damages brought under 42 U.S.C. § 1983,” 636 F.3d at 1312
(emphasis in original), the plaintiff’s “failure to allege this
essential element of his § 1983 claim was a failure to state a
claim,” id. The Fifth Circuit is in agreement, holding that “a
plaintiff who seeks to recover damages under section 1983 for
actions whose unlawfulness would render a conviction or
sentence invalid must first prove that the conviction or sentence
has been reversed, expunged, invalidated, or otherwise called
into question.” Hamilton, 74 F.3d at 102.
We conclude that this result is consistent with Heck v.
Humphrey, 512 U.S. at 486–87. There, the Supreme Court
derived the claim for an allegedly unconstitutional conviction or
imprisonment from the common law tort action of malicious
prosecution, noting that “[o]ne element that must be alleged and
proved in a malicious prosecution action is termination of the
prior criminal proceeding in favor of the accused.” 512 U.S. at
484 (emphasis added). Consequently, we join the Fifth and
Tenth Circuits in holding that in the absence of proof “that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question
by a federal court’s issuance of a writ of habeas corpus,” id. at

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487, the plaintiff has failed to state a claim for purposes of
section 1915(g).
When Jones filed the four prior section 1983 civil rights
damages lawsuits, three of which were dismissed under Heck v.
Humphrey, his conviction had not yet been overturned. To that
extent, his section 1983 claims were premature under Heck v.
Humphrey. The fact that this court subsequently reversed Jones’
conviction, see United States v. Maynard, 615 F.3d 544 (D.C.
Cir. 2010), does not alter that conclusion.1
Accordingly, because Jones, while incarcerated, had filed
at least three civil actions that were dismissed on the ground that
they were frivolous, malicious, or failed to state a claim, and he
has neither offered any valid reason why he should not be
required to pay in full the appellate filing fee before this court
will consider his mandamus petition, nor claimed he is in
imminent danger within the meaning of the exception under
section 1915(g) to the PLRA’s three-strikes provision, the court
will deny Jones’ motion for leave to appeal in forma pauperis
and order Jones to pay the full fee before the court will consider
his petition.

1

On June 27, 2011, the Supreme Court granted the
government’s petition for certiorari to review the reversal of Jones’
conviction. See United States v. Jones, __ S. Ct. __, 2011 WL
1456728 (No. 10-1259). Issuance of the mandate of this court,
reversing Jones’ conviction, has been withheld pending the Supreme
Court’s final disposition. See Order, No. 08-3034 (D.C. Cir. Apr. 7,
2011).

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