Joseph Brown v. Sage
903 F.3d 300
3rd Cir.2018Background
- Joseph Brown, a federal prisoner, filed three Bivens actions (Kemmerer, Sage, Dees) and sought to proceed in forma pauperis (IFP) in each.
- District courts denied his IFP motions, concluding Brown had already accrued three "strikes" under 28 U.S.C. § 1915(g): Brown I, Brown II, and Profitt; they dismissed the complaints for failure to state a claim.
- Brown appealed the IFP denials; the Third Circuit consolidated the appeals and appointed counsel for Brown.
- Central legal question: whether prior dismissals from other districts count as strikes under Third Circuit precedent and whether a case counts as "brought" (a strike) when a complaint was submitted but not officially filed.
- The Third Circuit held that courts in the Third Circuit must apply Third Circuit precedent when deciding whether prior dismissals are strikes, and that a complaint is not "brought" for § 1915(g) purposes unless the complaint was actually filed (i.e., IFP granted or fee paid).
- Applying that rule, the court found Brown had only two qualifying strikes (Brown I and Brown II); Profitt did not count because the complaint was never filed, and thus granted Brown's IFP motions and remanded the three cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which circuit law governs whether a prior dismissal counts as a § 1915(g) "strike" when the dismissal originated outside the Third Circuit? | Third Circuit precedent should govern; strikes must be evaluated under Third Circuit law. | Government implicitly applied California/Ninth Circuit practice; district court used Ninth Circuit approach for Profitt. | Third Circuit law controls for assessing strikes arising anywhere. |
| What constitutes "bringing" an action under § 1915(g) for strike purposes—submission to the clerk (lodged) or official filing (IFP granted or fee paid)? | Brown: only an officially filed complaint (IFP granted or fee paid) constitutes "brought." | Government/district court treated submission to court (lodged) as bringing an action (per Ninth Circuit). | "Bring" means the complaint must be filed; submission alone (lodged) does not count as a strike. |
| Does Profitt qualify as a third strike though the district court denied IFP and closed the matter without filing the complaint? | Profitt is not a strike because the complaint was never filed. | District court treated Profitt as a dismissal for failure to state a claim and therefore a strike. | Profitt is not a strike under Third Circuit precedents. |
| Are strikes that accrue after a complaint is filed relevant to a district court's later reconsideration of IFP status? | Brown: only strikes existing at the time the complaint was filed matter. | District court had counted strikes accrued later. | Only strikes that existed before the complaint was filed count; later accruals do not. |
Key Cases Cited
- Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013) (establishes Third Circuit test for when a dismissal counts as a § 1915(g) strike)
- Millhouse v. Heath, 866 F.3d 152 (3d Cir. 2017) (strikes are assessed as of the date of filing/appeal notice; post-filing strikes do not count)
- Gibbs v. Ryan, 160 F.3d 160 (3d Cir. 1998) (equates "bringing" an action with filing the complaint)
- O'Neal v. Price, 531 F.3d 1146 (9th Cir. 2008) (contrasting rule: a complaint submitted with an IFP request counts as "brought")
- McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997) (discusses simultaneous consideration of IFP status and merits screening)