Although the Bill of Rights of the 1987 Philippine Constitution is a sufficient basic law intended to protect the fundamental human rights of Filipino citizens and aliens living in the Philippines against the abuses of the State, there is no special Philippine law that grants to prisoners confined in Philippine national and local jails the right to sue prison officials on matters involving the physical and psychological conditions of their confinement and that specifies, identifies and protects their human rights as prisoners.
Let me share the American case of WILFREDO POLANCO vs. WILLIAM J. HOPKINS, MARGARET FRABONI, CALVIN E. WEST, CAROL HILLMAN, LT. G. LEBEDNICK, JAMES ESGLONS, Hearing Officer, docketed as No. 07-1739-pr, dated December 6, 2007), promulgated by the US Court of Appeals for the Second Circuit.
The case involved the interpretation of 28 U.S.C. § 1915(g), which denies in forma pauperis status — that is, the ability to file a civil action with fees paid by the Court — to an incarcerated person who has filed three or more previous actions deemed to be “frivolous, malicious, or which failed to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”
The issue presented was whether that rule violates a prisoner’s right of access to the courts or is impermissibly overbroad.
It will be noted that 28 U.S.C. Sec. 1915(g) provides that:
“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 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”.
In December 2003, plaintiff-appellant Polanco, pro se and incarcerated at Auburn Correctional Facility (“ACF”), filed a civil rights complaint in the United States District Court for the Western District of New York pursuant to 42 U.S.C. § 1983 against several employees of the New York Department of Correctional Services, alleging that he had been exposed to mold in a gym shower at Elmira Correctional Facility (“ECF”) and was unjustly disciplined on two occasions at ACF.
In June 2004, Polanco filed an amended complaint, which clarified that he was alleging violations of his rights under the First and Fourteenth Amendments, the Eighth Amendment, and a host of
Polanco argued that Section 1915(g) violated his guarantee of equal protection of the laws under the Fifth Amendment, citing (a) Cuoco v. Moritsugu 222 F.3d 99, 106 (2d Cir. 2000), where the US Supreme Court held that “equal protection analysis is same under Due Process Clause of the Fifth Amendment and Equal Protection Clause of the Fourteenth Amendment”, and (b) Nicholas v. Tucker, 114 F.3d 17, 19 -20 (2d Cir. 1997), where the US Supreme Copit was held that “although, unlike the Fourteenth Amendment, the Fifth does not contain an equal protection clause, it does forbid discrimination that is so unjustifiable [such as access to the courts] as to be violative of due process” and that “the standards for analyzing equal protection claims under either amendment are identical”.
In his complaint, Polanco asserted that in October 2002 at Elmira Correctional Facility (ECF), he was exposed to black mold in the shower room thereof, and that, because of his particular medical condition, exposure to the mold had caused him serious harm. He asserted that a prison guard had retaliated against him in March 2003 by “confining him upon the 30 day penalty” and depriving him of a “keeplock shower,” after he had reported that the guard had abused his authority by calling him “stupid” and by threatening his life and beating his body.
Polanco alleged that, in June 2003, in a separate incident, the defendants “wrote the wrong charge of misbehavior report,” and subsequently he was improperly confined to the Special Housing Unit (“SHU”). While in the SHU, he lost weight because the facility refused to provide him with his “therapeutic dietary or resource drink,” and he breathed “germ bad condition,” both of which harmed his health already weakened by Hepatitis B. He asserted that, during the time he was confined to the SHU, one or many guards stole his stamps, writing pad, and carbon paper.
In January 2007, defendants filed a motion to dismiss, arguing that Polanco was not entitled to in forma pauperis status as a result of section 1915(g)’s three-strikes rule, and asserting that Polanco had accrued at least six such “strikes” against him. In response, Polanco, then represented by counsel, argued that he qualified for an exception to the three-strikes rule, which permits an additional filing where the plaintiff faces “imminent danger of serious physical injury,” He argued that, at the time of the events described in the complaint, he faced risks sufficient to qualify for the exception to the three-strikes rule. He also argued that if the exception to the three-strikes rule required imminent danger at the time of filing rather than at the time of the events described in the complaint, then the exception was overbroad and violated the Fifth Amendment’s guarantee of equal
protection of the laws. Polanco asserted that a “time-of-filing interpretation closes the courthouse door to indigent prisoners with three or more strikes who do not manage to file their federal actions during the difficult, and often fleeting, time that they are in imminent danger of serious physical injury.”
In an order entered on March 23, 2007, the District Court (Charles J. Siragusa, Judge) revoked its previous determination permitting Polanco to proceed in forma pauperis and granted defendants’ motion to dismiss. The trial court rejected Polanco’s constitutional challenges to section 1915(g). It found that, in the years preceding the motion to dismiss, more than three of Polanco’s lawsuits or appeals had been dismissed by this Court as frivolous and concluded that Polanco had alleged insufficient facts of an imminent danger of harm at either the time of his original complaint (December 2003) or his amended complaint (July 2004).
On April 20, 2007, Polanco timely filed a notice of appeal. The trial court subsequently issued an order dismissing the case for Polanco’s failure to pay the filing fee, On appeal, Polanco seeks in forma pauperis status and appointment of counsel and claims that, to the extent that 28 U.S.C. § 1915(g) prevents him from securing in forma pauperis status in the circumstances presented, it is unconstitutional.
In denying the petition, the US Court of Appeals for the Second Circuit found that more than three of Polanco’s prior lawsuits had been dismissed by the lower courts for the reasons provided in section 1915(g) and that the lower courts did not err in determining that Polanco’s “allegations cannot support a determination that he was in imminent danger” of serious physical injury with respect to his claims relating to the health risks associated with his exposure to mold or to his claim of unjust discipline.
Polanco’s remaining argument was a challenge to the constitutionality of section 1915(g).
In denying such an argument, the Court of Appeals held that section 1915(g) did not unconstitutionally deny a prisoner’s access to the courts, citing White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998) (rejecting right of access challenge to section 1915(g)); Rivera v. Allin, 144 F.3d 719, 723-24 (11th Cir. 1998) (same); Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997) (same).
In the proceedings in the District Court, Polanco argued that section 1915(g)’s imminent danger exception to the three-strikes rule “violates the constitutional guarantee of equal protection of the laws by infringing on a prisoner’s rights of access to the courts”.
Polanco objected to the trial court’s time-of- filing interpretation of the imminent danger exception — that is, that “the imminent danger is evaluated at the time of filing and not the time of the events alleged in the complaint” (citing Malik v. McGinnis, 293 F.3d 559, 562–63 (2d Cir. 2002)).
Polanco argued that the requirement “closes the door to indigent prisoners with three or more strikes who do not manage to file their federal actions during the difficult, and often fleeting, time that they are in imminent danger of serious physical injury.”
As an initial matter, the Court of Appeals held “that in forma pauperis status is not a constitutional right,” but rather a “congressionally created benefit” which can be “extended or limited by Congress”, citing Rodriguez, 169 F.3d at 1180. The Court of Appeals held that Section 1915(g) presented no unconstitutional burden to a prisoner’s access to the courts: the provision does not “prevent prisoners from filing civil actions, it merely prohibits them from enjoying in forma pauperis status.” It cited
The Court of Appeals also concluded that section 1915(g) was not overbroad. It denied Polanco’s argument that the trial court’s time-of filing interpretation of the imminent danger exception renders section 1915(g) “fatally overbroad because it prohibits inmates with three or more strikes whose imminent danger ceased prior to filing the motion from proceeding in forma pauperis, even if they did, in fact, suffer serious physical injury, while excusing from filing fee requirements prisoners who remained in danger even if they were never injured.” The Court of Appeals reiterated the doctrine enunciated in Malik v. McGinnis, 293 F.3d 559, 562–63 (2d Cir. 2002).
In fine, the Court of Appeals dismissed the appeal and denied the motions for in forma pauperis status and appointment of pro bono counsel.
By:
Atty. Manuel Laserna Jr.
LCM Law, Las
