Parker v. Montgomery County Correctional Facility
870 F.3d 144
3rd Cir.2017Background
- Jason Parker, an indigent pro se prisoner, filed multiple civil suits; three were dismissed under § 1915(e)(2)(B), resulting in three "strikes": Nutter, O’Connor, and MCC.
- The District Court dismissed MCC (and O’Connor) on enumerated PLRA grounds and granted IFP earlier in the proceedings for filing-screening purposes; MCC was treated as Parker’s third strike.
- Parker appealed the MCC dismissal and moved to proceed in forma pauperis (IFP) on appeal; the court directed briefing on whether a prisoner may proceed IFP when appealing a district-court order imposing his third strike.
- The central legal question: may a prisoner appealing the imposition of his third strike obtain IFP status for that appeal without showing imminent danger of serious physical injury?
- The Third Circuit applied the plain language of 28 U.S.C. § 1915(g) and the Supreme Court’s reasoning in Coleman v. Tollefson to resolve the question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prisoner may proceed IFP on appeal of a district-court order that imposes the prisoner’s third § 1915(g) strike without showing imminent danger | Parker: “prior occasions” should mean strikes from suits filed before the current suit, so an appeal of a third-strike dismissal should be granted IFP | Government/County: § 1915(g) applies once a dismissal on enumerated grounds has occurred; a district-court dismissal counts as a prior occasion even if on appeal | Denied: the court held § 1915(g) bars IFP for an appeal of a third-strike dismissal absent the imminent-danger exception; a district-court dismissal is a prior occasion prior to its appeal |
| Whether the "imminent danger" exception applies to this appeal | Parker: challenged that delay in receiving account statements prolonged incarceration and posed imminent danger | County: incarceration per se and generalized hostility do not satisfy imminent danger; exception is narrow and evaluated at filing | Denied: court held Parker did not show imminent danger at the time the complaint was filed; exception not met |
| Proper temporal counting of strikes while an appeal is pending (effect of Coleman and Ball) | Parker: follows Solicitor General/Ninth Circuit view that a third-strike dismissal underlying the appeal should not count against IFP for that same appeal | County: follows Coleman (and literal statutory text) that dismissals count as strikes when entered, even if on appeal; "prior occasions" means earlier in time than the notice of appeal | Held: Coleman requires a literal reading; district-court dismissals are prior occasions that count for § 1915(g); only strikes accruing after notice of appeal do not count |
Key Cases Cited
- Woodford v. Ngo, 548 U.S. 81 (discusses PLRA’s purpose to curb frivolous prisoner litigation)
- Jones v. Bock, 549 U.S. 199 (describes the purpose of § 1915(g) as a filter to exclude bad claims)
- Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir.) (PLRA background; imminent-danger exception interpretation)
- Ball v. Famiglio, 726 F.3d 448 (3d Cir.) (prior Third Circuit approach holding strikes count only after affirmance or expiration of appeal window; later abrogated in part by Coleman)
- Richey v. Dahne, 807 F.3d 1202 (9th Cir.) (held prisoner entitled to IFP when appealing third-strike dismissal; interpreted “prior occasions” to mean prior-filed suits)
- Millhouse v. Heath, 866 F.3d 152 (3d Cir.) (timing rule: strikes that accrue before notice of appeal count; those accruing after do not)