May 10, 2017
Appeal from the United States District Court for the Middle
District of Pennsylvania (D.C. Civ. No. 1-14-cv-01637)
Honorable Sylvia H. Rambo, District Judge
Stephen A. Fogdall (ARGUED) Emily J. Hanlon Schnader Harrison
Segal & Lewis Counsel for Appellant.
Timothy S. Judge (ARGUED) Office of United States Attorney
Counsel for Appellees.
BEFORE: AMBRO, RESTREPO, and COWEN, Circuit Judges
Kareem Hassan Millhouse, a prisoner at USP Lewisburg, appeals
from an order of the United States District Court for the
Middle District of Pennsylvania denying his motion to proceed
in forma pauperis ("IFP").
this Court must decide whether Millhouse is eligible for IFP
status on appeal under the Prison Litigation Reform Act
("PLRA"). We conclude that he is eligible, and,
accordingly, we grant his motion to proceed IFP on appeal.
For purposes of this appeal, Millhouse has only one strike.
The Court must look to the date the notice of appeal is
filed-and not the date that the Court rules on a
prisoner's motion to proceed IFP-in assessing whether a
particular dismissal counts as a strike. In short, strikes
that accrue before the filing of the notice of appeal
count-while strikes that accrue after the notice of appeal is
filed do not. While the Bledsoe strike accrued
before the filing of Millhouse's notice of appeal, both
Doe and Heath II were decided after
Millhouse filed his notice of appeal. However, even if we
were to count Doe and Heath II (which we do
not), Millhouse would still only have two strikes, i.e.,
Bledsoe and Doe. Because the District Court
explicitly and correctly concluded that Millhouse's
complaint revealed an immunity defense on its face and
dismissed with prejudice for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii), Doe qualifies as a strike. But we
also conclude that a dismissal without prejudice for failure
to state a claim does not rise to the level of a strike.
Accordingly, Heath II does not qualify as a strike.
to the merits of the underlying decision by the District
Court, we will vacate the District Court's order and
remand for further proceedings.
August 22, 2014, Millhouse filed a pro se complaint against
several prison employees, alleging constitutional violations
under the Bivens doctrine. In a May 5, 2015 order,
the District Court denied Millhouse's motion for leave to
proceed IFP, dismissed his complaint under 28 U.S.C. §
1915(g) without prejudice to refiling if Millhouse submits
the full filing fee, and denied his motion for leave to amend
(as well as his motion for a preliminary injunction and for
leave to add exhibits). In its accompanying memorandum, the
District Court identified five strikes pursuant to §
1915(g) and found that Millhouse failed to establish that he
was under imminent danger of serious physical injury.
pro se, Millhouse filed a notice of appeal on May 19, 2015.
On June 15, 2015, he moved to proceed with this appeal IFP.
On November 6, 2015, we stayed the instant case pending
Millhouse v. Sage, C.A. No. 14-3845, another appeal
filed by Millhouse. On February 11, 2016, the Court issued
its opinion in Sage. In this disposition, we
determined that only one of the putative strikes cited by the
District Court actually qualifies as a strike: Milhouse
v. Bledsoe, No. 10-cv-0053 (M.D. Pa. Oct. 6,
2010). See Millhouse v. Sage, 639
F.App'x 792, 792-95 (3d Cir. 2016) (per curiam).
this appeal was stayed, the District Court considered two
other pro se actions filed by Millhouse: Milhouse v.
Heath, No. 15-cv-00468 (M.D. Pa.) ("Heath
II"), and Milhouse v. Doe, No. 16-cv-00146
Heath II complaint (filed on March 9, 2015),
Millhouse claimed that prison officials violated the Eighth
Amendment by housing him with another inmate who posed a risk
of danger to him. In an October 27, 2015 order, the District
Court stated that Millhouse's motion to proceed IFP
(construed as a motion to proceed without full prepayment of
the filing fee) "is GRANTED, " "Milhouse's
complaint is DISMISSED without prejudice for failure to state
a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii), " "[t]he Clerk of
Court shall CLOSE this case, " and "[a]ny appeal
from this order will be deemed frivolous, not taken in good
faith and lacking probable cause." Milhouse v.
Heath, No. 15-cv-00468, 2015 WL 6501461, at *5 (M.D. Pa.
Oct. 27, 2015). In its accompanying memorandum, the District
Court explained that Millhouse did not allege any facts from
which it could be found that he was injured by his cellmate.
"While Milhouse may assert that he is in danger because
of the dangerous nature of his cellmate, this type of danger
is speculative and not a basis for relief." Id.
at *4. According to the District Court, Millhouse also had no
constitutional right to choose his place of confinement or
his cellmate. Given Millhouse's failure to set forth any
factual allegations giving rise to cognizable claims,
"it is impossible to conclude that defendants have
deprived Milhouse of any constitutional rights entitling him
to monetary damages, and as stated above Milhouse has no
entitlement to injunctive relief in the form of a transfer
out of the federal prison system." Id. "As
such, the present complaint will be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) as Milhouse fails to state a
claim against the defendants upon which relief may be
granted." Id. The District Court further
explained in its memorandum that the complaint would be
dismissed without leave to amend as it would be inequitable
and futile to grant Millhouse the opportunity to do so.
January 27, 2016, Millhouse filed his complaint in
Doe against three unidentified Third Circuit judges.
According to Millhouse, a Third Circuit opinion falsely
asserted that he had confessed to committing a crime, and
this opinion was accessed by other inmates on a law library
computer, who then harassed and assaulted Millhouse. In a
February 24, 2016 order, the District Court stated that
Millhouse's motion to proceed IFP (again construed as a
motion to proceed without full prepayment of the filing fee)
"is GRANTED, " "Milhouse's complaint is
DISMISSED WITH PREJUDICE for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii), " "[t]he Clerk of Court
shall CLOSE this case, " and "[a]ny appeal from
this order will be deemed frivolous, not taken in good faith
and lacking probable cause." (A285.) In a footnote, the
District Court explained that Millhouse "has only named
defendants who have absolute immunity" and that it would
be inequitable to grant him an opportunity to file an amended
complaint against those defendants. (A285 n.1.) According to
the District Court's memorandum, the judges were entitled
to absolute immunity from monetary damages because
Millhouse's claims were based on actions taken in the
exercise of their official duties. Noting that Millhouse
appeared to claim he was in danger of future assaults and
sought a transfer out of the federal prison system, the
District Court also concluded that he clearly failed to state
a cognizable claim. Millhouse did not allege any facts
indicating that prison officials failed to protect him, and
he also did not name any prison officials as defendants in
his complaint. A prisoner, in turn, has no justifiable
expectation that he will be incarcerated in a particular
facility. "While there is no indication that Milhouse
initiated this lawsuit with malicious intentions, the
complaint is suitable for summary dismissal under the in
forma pauperis statute because it fails to articulate an
arguable factual or legal basis under federal law."
Milhouse v. Doe, No. 16-cv-00146, 2016 WL 727619, at
*4 (M.D. Pa. Feb. 24, 2016). Acknowledging the general
principle that failure to state a claim under the Federal
Rules of Civil Procedure is not tantamount to legal frivolity
pursuant to § 1915(g), the District Court found that
"[t]he fatal defect in this complaint is not merely that
it fails to state a claim under Bivens, but that it
describes neither conduct nor injury that implicates the
Constitution or other federal law." Id. It
insisted that service of process would thereby represent a
waste of scarce judicial resources.
stay of this appeal was lifted on April 5, 2016.
Subsequently, the motion to proceed IFP was referred to a
merits panel, and the Court indicated that it would benefit
from the appointment of counsel to address the following
(1) whether the dismissal in [Heath II] qualifies as
a strike for purposes of 28 U.S.C. § 1915(g);
compare McLean v. United States, 566 F.3d 391, 396
(4th Cir. 2009) (cited in Ball v. Famiglio, 726 F.3d
448, 460 n.17 (3d Cir. 2013)), with Orr v. Clements,
688 F.3d 463, 465 (8th Cir. 2012); (2) whether the dismissal
in [Doe] qualifies as a strike; see Ball,
726 F.3d at 460-63; (3) if these dismissals qualify as
strikes, whether their timing precludes Appellant from
proceeding in forma pauperis in this appeal; (4) if
this Court decides that Appellant has three strikes, whether
he is under imminent danger of serious physical injury for
purposes of § 1915(g); and (5) if this Court decides
that Appellant qualifies for in forma pauperis
status on appeal, whether the District Court's decision
on appeal should be vacated.
(A18-A19.) Millhouse did not object, and Stephen A.
Fogdall, Esq., and Emily J. Hanlon, Esq. were appointed as
his pro bono counsel.
District Court had subject matter jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1343. We possess appellate
jurisdiction under 28 U.S.C. § 1291. We exercise plenary
review with respect to the proper interpretation of the PLRA
and its three strikes rule. See, e.g.,
Ball, 726 F.3d at 455 n.11.
U.S.C. § 1915(g) limits a prisoner's ability to
obtain IFP status:
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.
Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013), we set
forth our general approach for deciding what constitutes a
strike under this provision of the PLRA:
Thus, we adopt the following rule: a strike under §
1915(g) will accrue only if the entire action or appeal is
(1) dismissed explicitly because it is "frivolous,
" "malicious, " or "fails to state a
claim" or (2) dismissed pursuant to a statutory
provision or rule that is limited solely to dismissals for
such reasons, including (but not necessarily limited to) 28
U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i),