Kareem Millhouse v. Susan Heath
2017 U.S. App. LEXIS 14357
| 3rd Cir. | 2017Background
- Kareem Millhouse (prisoner) filed a Bivens pro se complaint; District Court denied IFP and dismissed his complaint under 28 U.S.C. § 1915(g) identifying multiple prior "strikes."
- Millhouse filed a timely notice of appeal (May 19, 2015) and later moved to proceed IFP on appeal; this Court stayed the appeal pending related matters.
- While the appeal was stayed, two additional district-court dismissals (Heath II and Doe) were entered against Millhouse (Oct. 27, 2015; Feb. 24, 2016).
- The panel considered whether (a) strikes that accrued after a notice of appeal but before an appellate IFP ruling count, and (b) whether dismissals without prejudice qualify as strikes.
- The Court ruled Millhouse had only one qualifying strike at the time he filed his notice of appeal and therefore is eligible to proceed IFP on appeal; it vacated the District Court’s denial of IFP and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IFP eligibility on appeal is assessed by strikes accrued before the notice of appeal or by strikes accrued before the court grants IFP | Millhouse: count strikes only up to the filing date of the notice of appeal; later dismissals shouldn’t bar this appeal | Appellees: strikes that accrued before the court granted IFP (even if after notice) should count | Court: look to the date of the notice of appeal; strikes accruing after the notice do not count for that appeal; Millhouse eligible IFP (only one strike) |
| Whether the Doe dismissal qualifies as a § 1915(g) strike | Millhouse: Doe dismissal was wrong and amenable to amendment to add non-immune defendants | Appellees: Doe dismissed with prejudice for failure to state a claim and immunity on the face of the complaint, so it is a strike | Held: Doe qualifies as a strike (dismissed with prejudice; immunity obvious on the face) |
| Whether the Heath II dismissal (without prejudice) qualifies as a § 1915(g) strike | Millhouse: dismissal without prejudice (and dismissal language) means it should not be treated as a strike | Appellees: dismissals for failure to state a claim count regardless of "without prejudice" language | Held: dismissal without prejudice for failure to state a claim does not qualify as a strike (adopting Fourth Circuit approach) |
| Whether the appellate court should equitably toll strike accrual due to court delay on IFP application | Millhouse (and concurring judge): court delay in ruling on IFP warrants equitable tolling to prevent prejudice | Appellees: statutory scheme requires counting strikes as they accrue; equitable tolling not appropriate here | Held: majority declined to apply equitable tolling; concurrence would toll under Urrutia but agreed result (Millhouse has one strike) |
Key Cases Cited
- Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (PLRA’s three-strikes rule counts prior dismissals even if those dismissals are the subject of an appeal)
- Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013) (adopted rule limiting what counts as a § 1915(g) strike and endorsed a bright-line approach)
- Ball v. Famiglio, 726 F.3d 448 (3d Cir. 2013) (dismissal based on immunity may be a strike only when immunity appears on the face of the complaint and dismissal is with prejudice)
- Urrutia v. Harrisburg County Police Dept., 91 F.3d 451 (3d Cir. 1996) (equitable tolling of statute of limitations during delay in IFP determination)
- McLean v. United States, 566 F.3d 391 (4th Cir. 2009) (dismissal without prejudice for failure to state a claim does not count as a § 1915(g) strike)
- O’Neal v. Price, 531 F.3d 1146 (9th Cir. 2008) (a plaintiff who files an IFP application has "brought" an action for purposes of § 1915(g))
- Denton v. Hernandez, 504 U.S. 25 (1992) (PLRA screening authority and standards for dismissing frivolous prisoner suits)