Mills v. Fischer, 2011 U.S. App. LEXIS 14320

Mills, proceeding pro se, appeals a district court dismissal of his 42 U.S.C. § 1983 complaint about prison visitation limits.
He seeks to proceed IFP and to have counsel appointed for the appeal.
The district court’s order denied IFP status and dismissed the appeal under the Prison Litigation Reform Act (PLRA).
The court concluded Mills has at least five prior strikes under § 1915(g), including dismissals for failure to state a claim and for immunity defenses.
Some prior dismissals were based on absolute judicial immunity, which the court treated as frivolous for purposes of the five-strikes rule.
Because Mills exceeds three strikes, he is barred from IFP status unless he faces imminent danger of serious physical injury.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mills is barred from IFP status under § 1915(g).	Mills argues he should be allowed IFP due to lack of funds.	Fischer/lempke argue Mills has five strikes and no imminent danger.	Mills is barred from IFP under § 1915(g).
Whether Mills is eligible for appointment of counsel.	IFP status would permit appointed counsel.	Three-strikes bar also bars appointment of counsel for IFP litigants.	Appointment of counsel denied due to § 1915(g) bar.
Whether the appeal should be dismissed or fees assessed.	Appeal should proceed with fees waived under IFP.	Without IFP, fees must be paid and appeal dismissed if not.	Appeal will be dismissed unless Mills pays the filing fees within 30 days.

Chavis v. Chappius, 618 F.3d 162 (2d Cir. 2010) (two strikes when complaint and appeal dismissed for § 1915(g) grounds)
Brightwell v. Lehman, 637 F.3d 187 (3d Cir. 2011) (three-strikes bar applies to IFP status and counsel)
Nicholas v. Tucker, 114 F.3d 17 (2d Cir. 1997) (PLRA purpose to deter frivolous prisoner lawsuits)