JOSEPH A. BROWN, Appellant v. DR. SAGE, (Psych Dept.); DR. EIGENBRODE, (Psych Dept.); DR. SHOUEY, (Psych Dept.); JOSEPH A. BROWN, Appellant v. C.O. KEMMERER; UNITED STATES; B.R. PEALER; T. CRAWFORD; C.O. J. YOUNG; C.O. J. TREIBLY; C.O. J. HARDY; Lt. R. MILLER; C.O. D. HERR; C.O. A. CRAVELING; C.O. J. FINCK; C.O. R. WICKHAM; Lt. J. SHERMAN; Lt. DOUH; Lt. J. SEEBA; Lt. R. JOHNSON; Lt. P. CARRASQUITTO; P.A. S. DEES; P.A. L. POTTER; P.A. BRENNAMAN; P.A. H. MIOSI; J. CARPENTER; J. RUSSO; JOSEPH A. BROWN, Appellant v. SARAH DEES, PHYSICIAN ASSISTANT, USP
Nos. 17-1222, 17-1527, 17-1714
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
October 30, 2019
PRECEDENTIAL. On Appeal from the United States District Court for the Middle District of Pennsylvania (Nos. 1:16-cv-02477, 1:14-cv-01520, and 1:17-cv-00025). District Judge: Honorable Sylvia H. Rambo. Argued June 14, 2018 Before Merits Panel. Resubmitted En Banc July 23, 2019.
(Filed: October 30, 2019)
Julia Chapman
Michael S. Doluisio
Ellen L. Ratigan
Stefanie A. Tubbs
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Counsel for Appellant
Michael J. Butler
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Caroline D. Lopez
United States Department of Justice
Civil Division, Appellate Staff
Room 7535
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Appellees in No. 17-1527
CHAGARES, Circuit Judge.
Plaintiffs filing lawsuits in federal court generally need to pay a filing fee. But that does not mean the courthouse doors are closed to those who cannot afford it. Indigent plaintiffs can avoid the filing fee if they file a successful application for leave to proceed “in forma pauperis,” or IFP. Plaintiffs who are prisoners, however, may be barred from proceeding IFP by operation of the so-called “three-strikes rule.” That rule, enacted as part of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (the “PLRA“), provides that a prisoner cannot proceed IFP if, “on 3 or more prior occasions, while incarcerated or detained in any facility,” the prisoner has “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.”
Appellant Joseph Brown moved for leave to proceed IFP in three cases in the United States District Court for the Middle District of Pennsylvania. The District Court denied his motions, finding that Brown had accrued three strikes in three earlier cases in federal courts in California. Brown appealed, but appeals have fees too, so he also moves for leave to proceed IFP in each of his three appeals.
I.
Joseph Brown has been a federal prisoner at all times pertinent to this consolidated appeal. In 2014, he filed a complaint in the United States District Court for the Middle District of Pennsylvania, alleging that various prison officials at the United States Penitentiary in Lewisburg, Pennsylvania — where Brown was then incarcerated — had injured him, in violation of his Fifth and Eighth Amendment rights. See Brown v. Kemmerer, No. 1:14-cv-01520. Brown moved in Kemmerer for leave to proceed IFP, and the District Court granted his motion.
Then, in 2016, Brown started another federal action in the Middle District of Pennsylvania, alleging that prison psychologists, among others, were deliberately indifferent to his serious mental-health needs. See Brown v. Sage, No. 1:16-cv-02477. As in Kemmerer, Brown again moved for leave to proceed IFP. But this time, the District Court denied the motion, concluding that Brown was barred by the three-strikes rule. The District Court found that Brown had filed three other actions in federal courts
- Brown v. United States (“Brown I“), No. 1:11-cv-01562, which the United States District Court for the Eastern District of California dismissed in June 2013 for failure to state a claim.
- Brown v. United States (“Brown II“), No. 1:12-cv-00165, which the United States District Court for the Eastern District of California dismissed in November 2014, also for failure to state a claim.
- Brown v. Profitt (“Profitt“), No. 5:13-cv-02338, which the United States District Court for the Central District of California dismissed in March 2014, again for failure to state a claim.
In all three cases, the federal district courts in California explicitly stated that the dismissals qualified as strikes under
Brown‘s IFP motion in Sage prompted the District Court to revisit its earlier decision to grant Brown‘s IFP motion in Kemmerer. On the very same day it denied Brown‘s motion in Sage, the District Court vacated its earlier order in Kemmerer and denied Brown‘s IFP motion there as well. As it did in Sage, the District Court pointed to the three strikes that Brown had accrued in federal courts in California.
Brown appealed the denial of his IFP motions in Sage, Kemmerer, and Dees, and he also moved to proceed IFP in those appeals. We consolidated Brown‘s three cases and appointed counsel to represent him.1 A divided panel of this Court granted Brown‘s IFP motions. See Brown v. Sage, 903 F.3d 300 (3d Cir. 2018). We subsequently granted the defendants’ petition for rehearing en banc and vacated the panel‘s opinion and judgment.
II.2
Brown has moved to proceed IFP in his three appeals. So, before we can consider whether the District Court erred in denying Brown‘s original IFP motions, we must decide whether Brown can proceed IFP before us. In so deciding, we will confront the same issues that the District Court did. But technically we are not yet reviewing the
A.
Some form of the IFP statute has been in existence for over a century. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc). The statute ensures that no person is barred from “pursuing meaningful litigation” solely because of an inability to pay administrative court fees. Deutsch v. United States, 67 F.3d 1080, 1084 (3d Cir. 1995). But Congress, in creating the IFP procedure, also “recognized that ‘a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.‘” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). Accordingly, the IFP statute, as originally enacted, provided that the court “may dismiss” any IFP action if the court determined that “the alleged cause of action is frivolous or malicious.” Act of July 20, 1892, ch. 209 §§ 1–5, 27 Stat. 252.
This Court thereafter construed the IFP statute generally to require a “two-step analysis.” Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990). First, we explained, a
In 1996, however, Congress changed the statutory landscape. Over time, it had become deeply concerned that a large volume of frivolous and vexatious prisoner lawsuits both overburdened the judiciary and were unnecessarily costly for defendants. Indeed, by 1995, prisoner lawsuits constituted more than twenty-five percent of federal civil cases. Roller v. Gunn, 107 F.3d 227, 230 (4th Cir. 1997). So in 1996, to “preserv[e] [the] resources of both the courts and the defendants in prisoner litigation,” Byrd v. Shannon, 715 F.3d 117, 125 (3d Cir. 2013), and to ensure “fewer and better prisoner suits,” Jones v. Bock, 549 U.S. 199, 203 (2007), Congress passed the PLRA.
The PLRA amended the IFP statute in several important respects. Whereas the prior version had provided that a court “may” dismiss “frivolous or malicious” actions, the statute now provides that “a court shall dismiss the case at any time if . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
Brown argues that we should continue to apply our two-step analysis, which the district court in Profitt did not follow. Instead, the district court considered the merits of the case and evaluated Brown‘s IFP application simultaneously. We disagree with Brown‘s argument because the PLRA has superseded our former rigid, stepwise procedure and prescribes a flexible approach. Accordingly, we hold that a court has the authority to dismiss a case “at any time,”
The text, history, and purpose of the PLRA compel our decision. One of the important reforms instituted by the PLRA was to require “early judicial screening of prisoner complaints.” Bock, 549 U.S. at 202; see also 141 Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (statement of Sen. Dole) (noting that the PLRA “would allow a Federal judge to immediately dismiss a complaint” (emphasis added)). The PLRA thus empowered courts to screen complaints “before docketing” or “as soon as practicable” thereafter,
III.
Applying the flexible approach mandated by the PLRA, we now consider whether Brown is barred from proceeding IFP under the three-strikes rule. See
A.
Brown claims that because the district court in Profitt never granted his IFP application — it just dismissed the case on the merits — the action there was never “brought” and cannot count as a strike under
We are interpreting a statute, so we start with its text. See, e.g., Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Section 1915(g) provides in full:
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.
Instead of “squinting myopically” at the phrase brought an action, we must widen our lens. M.A. ex rel. E.S. v. State-Operated Sch. Dist. of City of Newark, 344 F.3d 335, 348 (3d Cir. 2003). As we have instructed, “the ‘plain meaning’ of statutory language is often illuminated by considering not only ‘the particular statutory language’ at issue, but also the structure of the section in which the key language is found, ‘the design of the statute as a whole and its object.‘” United States v. Tupone, 442 F.3d 145, 151 (3d Cir. 2006) (quoting United States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994)). Indeed, “[i]t is a ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.‘” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989)). When we consider the PLRA‘s statutory scheme more broadly, the answer to our question becomes apparent: a prisoner has “brought an action” when he tenders or submits his complaint to the court.
The PLRA, as we have explained, was enacted “to limit the filing of frivolous and vexatious prisoner lawsuits” by “curtail[ing] the ability of prisoners to take advantage of the privilege of filing [IFP].” Abdul-Akbar, 239 F.3d at 314. To repeat, the statute requires a court to dismiss an IFP complaint “at any time” if it determines that the complaint is frivolous, malicious, or fails to state a claim. Moreover,
Brown‘s proposed interpretation of “brought an action” would undermine that statutory scheme. A prisoner could file frivolous lawsuit after frivolous lawsuit, and, so long as the courts continue to screen the suits early, as the PLRA encourages, the prisoner would accrue no strikes and could continue the barrage of meritless suits. That would negate the PLRA‘s scheme of limiting frivolous lawsuits. See O‘Neal, 531 F.3d at 1152 (“[C]onstruing ‘brought’ in
Our reading is bolstered by the statute‘s specific use of the word “brought,” as opposed to “commenced” or “filed.” The verb “brought” — whose subject in
We hold, therefore, that for the purposes of
Brown presents a variety of counterarguments based on the PLRA‘s text and purpose.5 We are unconvinced.
Brown‘s textual argument rests on two particular phrases. First, Brown observes that subsection (a)(1) provides that “any court of the United States may authorize the commencement . . . of any suit . . . without prepayment of fees.”
Moving beyond the statute‘s text, Brown contends that his approach “is consistent with the ‘driving purpose of the PLRA — preserving resources of both the courts and the defendants in prisoner litigation.‘” Brown Resp. to Pet. for Reh‘g 6 (quoting Byrd, 715 F.3d at 125). He suggests that a prisoner complaint “that survives prescreening” will “generate[] more briefing and adjudication” and thus is “more deserving of a strike determination.” Id. We cannot accept such an argument. Once more: the three-strikes rule was designed to “filter out the bad claims and facilitate consideration of the good.” Coleman, 135 S. Ct. at 1764 (quoting Bock, 549 U.S. at 204). Brown‘s interpretation would achieve precisely the opposite — it would penalize the bringer of more-meritorious claims while allowing a serial filer of frivolous lawsuits to continue unabated.
B.
Brown also argues that Profitt was not a strike because the district court there did not explicitly state why it dismissed the case. We are unpersuaded.
The Profitt court denied Brown‘s IFP motion by using a form order. That form order contained three sections. The first, left untouched, contained language permitting the matter to go forward without prepayment of the filing fee. The second, signed by the magistrate judge, began with: “IT IS RECOMMENDED that the request of prisoner-plaintiff to file the action without prepayment of the full filing fee be DENIED for the following reason(s).” Joint Appendix 59. The form provided nine reasons for denial, all with checkboxes next to them. The magistrate judge checked the following four: “Other: Failure to state a claim“; “Frivolous, malicious or fails to state a claim upon which relief may be granted“; “Leave to amend would be futile“; and “This denial may constitute a strike under the ‘Three Strikes’ provision governing the filing of prisoner suits.” Id. The section also had room for comments, and the magistrate judge wrote, among other things, that Brown had “failed to state a valid claim in two attempts.” Id. Finally, in the third section of the form, the district judge checked the “DENIED” box and signed the form. Id. That section also provided that: “If plaintiff does not timely submit an appropriate response to the Order, the Clerk is directed to close the case.” Id. The case was eventually closed.
Brown contends that this form order did not actually dismiss the entire action. Rather, he argues, it just denied his IFP application. He observes that the form order allowed him to respond, which is inconsistent with a straight dismissal. But Brown focuses too narrowly on the form order. It is clear from the record that the order, while not artfully drafted, ended the case. And the district court‘s basis for that order appears unequivocally on its face. Profitt is not a case where “we cannot determine with certainty that [the case] was dismissed for reasons warranting a strike under
*****
To sum up: Brown “brought an action” in Profitt when he tendered his complaint to the district court and asked to proceed IFP. When the district court ultimately dismissed his complaint for failing to state a claim, Brown accrued a strike under
IV.
For the foregoing reasons, we will deny Brown‘s motions for leave to proceed IFP in these consolidated appeals.
I am pleased to join the en banc majority opinion and judgment. I write separately only to explain why, having been part of the majority in the three-judge panel decision in Brown v. Sage,1 I now change course.
It is a well-established “tradition of this court” that our precedential authority “is binding on subsequent panels.” 3d Cir. I.O.P. 9.1. Accordingly, subsequent panels are not free to disregard any precedent of this court, no matter how flawed the reasoning of that precedent may seem. Rather, en banc consideration is the only means by which we can overrule our existing precedential authority. Id.; see also United States v. Monaco, 23 F.3d 793, 803 (3d Cir. 1994) (“To the extent that the decision of a later panel conflicts with existing circuit precedent, we are bound by the earlier, not the later, decision.“); In re Zermano-Gomez, 868 F.3d 1048, 1052 (9th Cir. 2017) (noting that the published decisions of the circuit constitute “binding authority which must be followed unless and until overruled by a body competent to do so” (omitting citation and internal quotation marks)).
Mindful of this tradition, I considered Millhouse v. Heath, which was decided well after the enactment of the
When our Court accepted Judge Chagares‘s suggestion, we had the opportunity to consider whether we should continue to employ a process that was wooden and mechanical. See 3d Cir. I.O.P. 9.1. We have altered course, and because I believe that decision to be a sound one, I now join my colleagues in unanimously embracing the flexible approach set out in the majority opinion.