Kareem Millhouse v. Susan Heath

truth-seeking of the trial Presenting function 103-06, 2392. 96 S.Ct. U.S. at failing to correct knowingly presenting to the testimony cuts core defen false perjured testimony, threat defen- process. right It thus to due makes dant’s apex at its right process to due is dant’s materiality standard sense that “the at their 'nadir. the state’s interests are lower, to and more favorable is testimony false pe- grant Haskell’s habeas Accordingly, we prosecu defendant, and hostile to proceedings tition reman'd for further compared to the tion standard opinion. withholding consistent general Brady violation.” Clay, 720 F.3d possibly is can defendant

At root how right fair trial

enjoy his when (or cor- present fails willing

state is

rect) then its own witness and lie's told-by relies

vouches that witness’s closing? As the

supposed honesty its Supreme Napue, Court recited in MILLHOUSE, Hassan Kareem consequence the false- is no Appellant

[i]t credibility hood bore witness’ directly upon rather than defendant’s HEATH; ERB Offi Lt S.I.S. Susan V. lie, guilt. A lie no matter what Fosnot; cer; Canaan Warden James and, any way it is subject, ’if relevant USP; Holzaple; Frederick Ent Scott case, attorney district has the zel; 1-10 John Does duty to responsibility and correct what false truth. and elicit the he knows 15-2278 No. 269-70, (quoting U.S. S.Ct. of Appeals, United States Savvides, 554, 154 1 N.Y.2d

People v. Third Circuit. 885, 136 N.E.2d N.Y.S.2d omitted). (internal (1956)) ellipses Argued May reasons, For that the these hold August Filed: (Opinion of Brecht does actual-prejudice standard to claims on habeas that apply knowing ór knowingly presented

state has A

ly perjured testimony. to correct failed perjured

reasonable likelihood

testimony’ judgment affected

jury required. all that is n n n »

n $ is a

Haskell demonstrated that there likelihood Blue’s falsé tes-

reasonable

timony affected jury. Hence he entitled relief. error

He on to go show need injurious

had a substantial and effect jury’s in determining

influence verdict

because, corrupted when the state has Fogdall (ARGUED), A.

Stephen Emily Hanlon, & Segal J. Harrison Schnader Lewis, Street, 1600 Market Suite PA Philadelphia, Counsel for Appel- lant (ARGUED),

Timothy Judge S. Office of Attorney, United States 235 North Wash- Avenue, ington P.O. Box Suite Scranton, PA Appellees Counsel for AMBRO, RESTREPO, BEFORE: COWEN, Judges Circuit OF THE OPINION COURT COWEN, Judge. Circuit Millhouse, Plaintiff Kareem Hassan Lewisburg, appeals at USP of the United order States Pennsyl- for the District of Middle denying proceed vania his motion (“IFP”). Initially, this Court must decide eligible whether Millhouse IFP sta Litigation tus on under the Prison (“PLRA”). Reform Act We conclude and, prejudice eligible, accordingly, we refil- he is fee, For his motion to submits full ing Millhouse appeal, Millhouse has motion for to amend and denied his leave (as one strike. The Court must look preliminary as his motion for well appeal exhibits). the notice of not date filed—and for injunction leave In and add prison- rules on a the date that the memorandum, Court accompanying Dis- proceed assessing motion to IFP—in five,.strikes er’s pursuant trict Court identified particular dismissal counts as a whether a § and found that short, In strikes that accrue before strike. failed to establish that he was under immi- filing appeal of the notice of count— danger physical injury. nent serious while strikes that accrue after the notice se, Acting pro Millhouse a notice filed appeal not. is filed do the Bledsoe While june 19, 15, 2015, May appeal 2015. On filing of Mill- strike accrued before the proceed he IFP. moved with appeal, both Doe house’s notice and 6, 2015, stayed we On November in Heath II after Millhouse were decided Sage, pending stant case Millhouse v. C.A. However, notice of even if filed his 14-3845, by No. another filed Mill- (which to count Doe Heath II were and 11, 2016, February house. On the Court not), only we do Millhouse would still Sage. opinion disposi issued its In this strikes, i.e., two Bledsoe Doe. Because tion, determined that one of the we. explicitly correctly the District Court putative by strikes- cited the District Court complaint concluded that Millhouse’s re- actually as qualifies a strike: Milhouse v. immunity an on its vealed defense face Bledsoe, 10-cv-0053, No. 2010 WL 3940853 for failure prejudice dismissed (M.D. 2010).1 6, v. Pa. Oct. See Millhouse relief upon state a claim which be may Sage, 792, Fed.Appx. granted pursuant 28 U.S.C. curiam). (per 1915(e)(2)(B)(ii), qualifies Doe as a stayed, While this the Dis But conclude that strike. we also a dismiss- trict pro Court considered two other se prejudice al without failure by actions v. filed Millhouse: Milhouse not to the level of a strike. does rise Heath, (“Heath (M.D. Pa.) No. 15-cv-00468 II Accordingly, qualify Heath does as Doe, II”), and Milhouse v. No. 16-cv-00146 strike. (M.D. Pa.). Turning underlying to the merits Court, complaint (filed will decision the District In II his Heath Court’s, 2015), vacate the District order and re- March Millhouse claimed that proceedings. mand further prison Eighth officials violated the Amend- him by housing ment inmate with another

I. posed danger a risk of who to him. 22, 2014, order, August On October pro complaint against prison proceed se several stated that Millhouse’s motion to (construed employees, proceed a motion to alleging constitutional viola- as fee) May tions full under the Bivens doctrine. prepayment GRANTED,” order, the District Court denied “is “Miihouse’s proceed prejudice for. Millhouse’s motion leave DISMISSED without failure state, IFP, his under 28 to a claim relief dismissed spelled spelling, prison appears 1. It that Millhouse has Court also used this his rec- Although spelled his name name "Milhouse.” the District ords as "Millhouse.” proceed (again U.S.C. tion to granted pursuant construed as a Clerk of Court “[t]he motion to: 1915(e)(2)(B)(ii),” prepayment without full case,” “[a]ny appeal fee)- shall CLOSE GRANTED,” “is “Mil- frivolous, from this order will be deemed house’s- is DISMISSED WITH in good lacking proba- not taken faith and PREJUDICE for failure to state a claim Heath, ble cause.” Milhouse No. 15-cv- upon granted pursuant which relief (M.D. 6501461, at *5 Pa. 2015 WL m5(e)(2)(B)(i%)? to 28 “[t]he 2015). accompanying In its memo- Oct. case,” Clerk CLOSE this shall randum, explained the District Court “[a]ny appeal from this order will' be allege any Millhouse did facts frivolous, in good deemed taken faith injured which could be found that was (A285.) lacking probable cause.” In a by his cellmate. “While Milhouse as- footnote, District Court explained that danger sert that he in because -of the Millhouse “has named defendants who cellmate, dangerous type nature his have it immunity” absolute and that would danger speculative not a basis inequitable grant be to him an opportunity According relief.” at *4. to Id. the District complaint to against file those amended Court, also had no constitutional Millhouse n.l.) (A285 According to defendants. :the his right place to choose confinement memorandum, judges District Court’s his cellmate. Millhouse’s failure to Given absolute, immunity were entitled to .from any allegations giving forth factual rise set monetary -damages because Millhouse’s claims, cognizable impossible to “it is to claims were based actions taken in deprived that conclude defendants official Noting exercise their duties. that any rights constitutional enti- Milhouse appeared to claim in he was damages, him tling monetary to and as danger sought of future assaults and a no stated above Milhouse has entitlement prison system, out of the transfer federal injunctive to in form of a relief transfer the District also Court concluded that prison system.” out of the federal Id. “As clearly cognizable failed state a .claim. to such, present complaint will be dis- allege any facts indicat pursuant missed U.S.C. ing prison protect failed to officials, 1915(e)(2)(B)(ii) Milhouse fails him, and he did not name also prison against state a claim the defendants A complaint. officials as defendants granted.” which relief Id. The Dis- turn, justifiable no prisoner, expec further its explained'-in trict Court memo- tation that he will be. incarcerated a complaint randum would be dis- it particular facility. missed without leave to amend as no indi “While there is - inequitable and futile to Mill- cation that Milhouse initiated this lawsuit opportunity to house the do so. intentions, with malicious summary suitable for 27, 2016, January On 'Millhouse filed his in forma statute because it fails against in Doe three unidenti- legal arguable articulate an factual judges. According fied Circuit Third Doe, basis under federal law.” Milhouse v. Millhouse, opinion falsely a Third Circuit 16-cv-00146, *4 No. WL asserted that he had confessed to commit- (M.D. 24, 2016). Acknowledging Pa. Feb. crime, opinion a ting and this was accessed general principle failure to state library inmates on a comput- other law er, claim under the Rules Civil then harassed and Federal who Mill- assaulted order, legal is not tantamount fri February In a Procedure house. volity pursuant 1915(g), District Court stated that mo- the District Millhouse’s .defect II. “[t]he found fatal merely that it is not fails subject The District had Bivens, state a but claim under' jurisdiction pursuant matter to 28 U.S.C. nor injury describes conduct neither §§ possess appellate 1331 and 1343. We implicates or other the Constitution feder jurisdiction We under 28 U.S.C. pro al law.” It that service of Id. insisted plenary respect exercise review with thereby represent cess would a waste proper interpretation of the PLRA and judicial scarce resources. See, e.g., Ball, three strikes rule. n.11. stay was lifted on April Subsequently, the motion to III. proceed IFP referred to a merits pan- el, it would Court indicated that § 1915(g) prisoner’s limits appointment benefit of counsel to ability to obtain IFP status: address following issues: no prisoner bring shall civil event action or civil (1) whether the dismissal in [Heath II] action or proceeding under this section qualifies as a strike for of 28 has, prisoner prior on 3 or more compare § 1915(g); U.S.C. McLean v. occasions, while or incarcerated detained States, (4th 391, United 396 facility, brought ap- an action or Famiglio, (cited Cir. in Ball v. 726 peal in court of the United States 448, (3d 2013)), 460 n.17 Cir. F.3d it grounds 'was is dismissed Clements, 463, (8th Orr v. 688 465 F.3d frivolous, malicious, or fails to' 2012); (2) Cir. whether the dismissal granted, which relief Ball, strike; qualifies [Doe] as see 726 prisoner unless the under imminent is 460-63; (3) if these dismissals danger of physical injury. serious strikes, qualify timing as whether their Byrd Shannon, (3d Cir. 715 F.3d 117 precludes Appellant proceeding 2013), general approach we set forth our pauperis (4) appeal; forma if this this deciding for what constitutes a strike un- Appellant Court decides that has three provision this der the PLRA: strikes, is imminent whether he under Thus, adopt following we rule: a danger of physical injury for serious strike accrue if 1915(g)will under (5) purposes of 1915(g); and this (1) appeal the entire action or dis- is Appellant qualifies Court decides that explicitly because is “frivo- missed for in on appeal, status lous,” “malicious,” “fails to or state a on Court’s decision whether (2) pursuant claim” or dismissed appeal should be vacated. statutory is provision rule that limited (A18-A19.)2 object, dismissals, and Millhouse did not solely reasons, for to- such Stephen Emily Fogdall, Esq., (but A.. J. to) and including necessarily not limited Hanlon, Esq. appointed 1915A(b)(l), §§ pro were as his 28 1915(e)(2)(B)(i),1915(e)(2)(B)(ii), bono or Rule counsel.3 express Fogdall 2. Because does 3. We our and determine thanks Mr. we (and strikes,, not have three do we work in this need Ms. Hanlon their excellent not) decide “whether he is imminent matter. danger physical injury of serious 1915(g).” § 12(b)(6) of the Federal Rules of Appeal Civil A. Strikes and the Notice of Procedure. that, It undisputed while Millhouse Id. at 126. appeal 19, filed his notice of May “The ‘three strikes’ provision was ‘de (and IFP 15, 2015), his motion on June signed to filter out the bad claims and putative second and third strikes—Heath ” facilitate consideration good.’ Cole II 27, Doe—accrued October — Tollefson, U.S. —, man v. 135 S.Ct. February 2016. On November 1759, 1764, (2015) (quot L.Ed.2d 2015, this appeal stayed pending our Bock, ing 199, 204, Jones v. 549 U.S. Sage. Sage disposition in was decided on (2007)); S.Ct. L.Ed.2d 798 see February 11,:2016, lifted its also, e.g., McKelvie, Abdul-Akbar v. stay on April 2016. Millhouse’s motion (3d 2001) (en banc) to proceed leave appeal with his (noting Congress enacted PLRA to still pending. According to Appel- remains limit pris frivolous and vexatious lee,s Judge partial Ambro’s dissent and lawsuits). Partially oner abrogating our concurrence, these count dismissals Famiglio, ruling Ball v. 726 F.3d 448 for purposes of this appeal because 2013) (in held, alia, inter both, accrued before Court had that a strike does not accrue until the granted motion. Appellees, Unlike dismissal has been on appeal affirmed Ambro Judge believes that we should then opportunity has otherwise strikes, equitably toll these two 464-65), passed, id. at Supreme accordingly Millhouse IFP that the refusal to a prior concluded treat However, status. must look to the date as a of pending strike because the notice of (at filed—and least where prisoner’s date that we a motion to seeking appeal from a tri- “third-strike dismissal”) IFP—in assessing par- al-court in “a whether a would result Coleman, filter,” leaky ticular counts dismissal as a strike. S.Ct. at 1764- Strikes statutory 65. the thereby filing While scheme accrue the before of the notice seeks to of reduce the likelihood frivolous appeal of count as strikes—while strikes (while improving quality lawsuits of appeal accrue after the notice of actions), prisoner the remaining it would filed do not. Because second and third run counter to goals the PLRA’s our putative after strikes accrued Millhouse more, approach inevitably “will lead to appeal, of notice could not perhaps unnecessary, litigation on whether as ap- count strikes for particular or not a constitutes dismissal a peal. Byrd, According- strike.” must, begin, We as we with the statuto- Byrd ly, adopted bright-line a See, e.g., Abdul-Akbar, language. ry rule for this determination. Id. did so We (“ give F.3d at 313 ‘Our task is to effect to recognizing that, are.per- while courts “[i]f Congress, the will of and where will has mitted consider nature of the dis- terms, expressed reasonably plain been missal and determine whether dismiss- regarded language ordinarily must language '1915(g), § al fits within the of ” Negonsott (quoting conclusive.’ then there is less likelihood that a dismiss- Samuels, 99, 104, 113 S.Ct. U.S. slip through al intended as a strike will (1993))). plain 122 L.Ed.2d by categorical cracks Under created a rule that PLRA, filing of language of the is the undertaking bars courts such an ex- “triggers” amination.” Id. the notice of appeal that of Specifically, 1915(g) performed behalf States). rule. three strikes United also, e.g., App. 4(a)(1); P. R. prisoner a shall no event Fed. provides that see Russell, judgment Bowles v. appeal or a “bring a civil action U.S. 214, 127 2360, 168 (2007) or under this S.Ct. L.Ed.2d 96 proceeding” ,(“[T]he action civil a has, filing timely of .a “on 3 or more notice of prisoner appeal if the section in a civil occasions,” ap- jurisdictional an action or a brought requirement.”). prior As aptly grounds explains, peal that was dismissed “[i]t follows that frivolous, malicious, may prisoner or to a fails a judgment it is ‘appeal in a may action or proceeding’ pcm- relief civil a claim peris prisoner if the that a granted. language indicates This has accrued 3-strikes filing “appeal prior cannot notice of prisoner appeal.”4 like (Ap 4.) Reply or proceeding” pellant’s in a civil action Brief at judgment if he or statute she has under the prior “on 3 or more occa-

accrued strikes None of the cases by Appel- cited words, (or these must partial other sions.” lees dissent and concur “appeal rence) “prior” actually [of] accrued the meaning considered of proceeding.” action or judgment in a civil “appeal and its judgment in a (or any litigant) “áp- other or A civil action proceeding” language. Ac judgment cordingly, they in a civil or peal[s] action did not specific resolve the a. filing question of proceeding” by a notice óf whether we look to the should Appellate of appeal Rule of Procedure date Federal notice or the 3(a)(1) appeal permit- that we rule on specifies prisoner’s “[a]n IFP' date assessing by right as of from a district court motion ted law whether 1915(a)(1) only by be taken counts as a strike. 28 appeals to a court “any provides a notice of district court the United commencement, by the time allowed Rule 4.” States authorize the clerk within suit, prosecution or general, required “the notice defense criminal, or by proceeding, be filed with the district civil Rule 3 must therein, entry prepayment or se days clerk after fees within (or therefor, from” appealed curity person who submits or order all parties if one of the an a of days” “within 60 is the affidavit includes statement States, possesses that agency, prisoner a United States assets such United employee pay give or in is such fees or person United officer unable to States sued provi or capacity, security Relying an official a current or therefor.” on this former that, sion, a liti employee or in when United States officer we indicated sued an capacity gant an an act or omis- submits a complaint individual motion, duly in is filed after occurring complaint sion connection with duties fact, indigent litigants of "without 4. we have held that a notice allow 1915(a); rejected merely filing § cannot see prepayment fees.” 28 U.S.C. of See, e.g., Super paid. Lee fee not been v. also, e.g., Ball, ("The F.3d at 452 n.1 SCI, 798 F.3d intendent Houtzdale 164- is,.still pay the required to costs (3d 2015). appeal may Cir. If a notice of departure pre- appeal, a her action or rejected litigant not be on the basis that the Hernandez, v. practice, PLRA see Denton fee, requisite failed to include the subse 25, 27, 118 L.Ed.2d [504 U.S. 112 S.Ct. quent grant application of an IFP likewise (1992)], partial paying an initial fee fol timing "appeal an should not [of] affect by payments until lowed installment en judgment proceeding.” in a civil action or 1915(b)(1).”.). paid. tire fee is 28 U.S.C. all, point the whole of IFP After status proceed granted. trigger the motion to IFP is deciding bial whether dismiss- Harrisburg Cnty. Dep’t, Urrutia v. Police als count Tallying as strikes. plaintiffs (3d 1996). strikes, that, F.3d 458 & nn.12-13 Cir. in we observed Ball out of the “Thus, submitting pauperis an in strikes, purported ten three of the dismiss- forma to the in clerk does result als count as strikes because litigation.” commencement of the Id. at 458 were not final “when Ball appeals filed the Ryan, n.13; Ball, see also before us Gibbs now.”6 465. at (3d 1998) (“His was “Three others do not count as strikes for filed, ‘brought’ present and his action was when because the actions were pauperis in proceed motion to appeals dismissed after these were filed.” forma Urrutia, (footnote granted.” 458; omitted). (citing 91 F.3d at Id. at 466 This Court F,2d Sobolevitch, Oatess v. 430 had not yet motion; ruled on Ball’s IFP in Oatess, fact, 1990))); n.1 914 F.2d at 429 the Ball Court had decide whether (“When See, e.g., accompanied by n.1 or not her motion. id. at pauperis, in a motion to thereby clearly We meant that forma fee, rather than payment discounted dismissals occurred after Ball docketed, complaint is not it is there filed his notices While we did filed, not specifically fore until the motion has been discuss the issue now be- (and However, granted.”). fore determined us went on to that Ball “[w]e [in conclude that, though at Urrutia] even the limitations had three strikes the time she com- n 466), out, period appeals; her at fault[: ran was not. menced id. Ball’s tal- ‘[t]his [his] pauperis his in lying clearly weighs com in h]e submitted Mill- forma full plaint a months before the house’s favor. two statute ” (Partial expire.’ of limitations was due According Appellees Judge Am- Dissent & Concurrence at 168 (quoting concurrence, partial bro’s dissent Urrutia, 458).) 91 F.3d at “Because of ‘the “bring” term refers to 1915(d) delay making determination an motion granted. time when How- that, a plaintiff once submits [held] ever, § 1915(g) distinguishes between complaint,’ stat action,” hand, “bring[ing] a civil on the one equitably ute limitations would be tolled “appealing] a civil ac- grants applicat until the court the IFP proceeding,” tion the other hand. (Id. Urrutia, (quoting ion.”5 ‘appeal’ “The does occur as word the ob- 459).) ject. ‘brought’ verb later Section contrast, has, 1915(g), prisoner having im- to a this Court reference least plicitly, ‘brought appeal’ prior look to an action on 3 indicated that must prover- of the notice as the occasions and accrued strikes as a result” Similarly, again Supreme We mote the Court ab 5. the issue in Oatess was whether a 6. plaintiffs court could dismiss com- rogated holding district part, generally BalLin that “a sponte plaint sua for failure to prior dismissal ... counts as a strike even if plaintiff granted the IFP but after status subject appeal.” dismissal is of an the the Oatess, process before service of occurred. Coleman, at 135 at 1763. But see id. S.Ct. Addressing appeal F.2d 914 at 429. an where (refusing question of to resolve granted actually the IFP motion was on the plaintiff if would three strikes whether have filed, day same it was Gibbs considered "the attempting he appeal or she were to question" 1915(g) narrow of re- whether complaint). third dismissal of. quires the IFP status district court to revoke granted before the the enactment PLRA. of Gibbs, 160 F.3d at 162.

160 n,3). for prisoners “the tory penalize scheme to 4 In Reply Brief at (Appellant’s Price, (9th disposing of process inherent” the delay F.3d 1146 O’Neal v. (cid:127) Urrutia, motions, IFP F.3d at 2008), (in majority of their the Ninth Circuit all, disposition the an pris the 458 n.13. After theory opinion) rejected the time-consuming “brought” often “a IFP motion is prior actions not oner’s were (and is, large part, outside process” that subsequent language under At pro litigant. control of se Id. the under the the thereby strikes constitute least, need to very Court time merely appli the does he filed 1915(g)) “because and indigency determination to which make an pauperis status in forma cations filing history for denied,” prisoner’s the 1151. screen subsequently id. at were turn, IFP motions should strikes. In plaintiff Significantly, it “a concluded quickly on how differently treated based purposes ‘brought’ an action the “To may dispose of them. hold this Court § 1915(g) when submits mean that similar in otherwise would ... pauperis in forma request and to Furthermore, would be treated [motions] to the court.” Id. at 1152. quickly banc) differently [the on the basis how (sitting recognized that this Court en fact, In at on them.” 459. plainly acted Id. ‘bring' Court] this context “the word concurrence ac- partial the and dissent to the time when the civil action refers Abdul-Akbar, overly preju- knowledges that it at 313 initiated.” Gibbs, 162). to Millhouse access dicial bar (citing at courts F.3d “Mill- given present if circumstances. thereby prisoner must consider IFP filed danger the time the house a notice imminent at (as May respective- June request time opposed incident). on took no ly; Clerk’s Office alleged at 313-15. Like Id. stayed five wise, until explained request that “we the Fifth Circuit (pending months later in November danger determine exists at must Sage); [according to com resolution plaintiff seeks time file during Judge strikes accrued Ambro] plaint IFP.” Banos v. two or notice of O’Guin, (5th delay stay of the the Court’s- and mandated (Partial curiam) Concur- original). proceedings.” Dissent & (per (emphasis in . 168.) words, purport- at rence other is consis- approach believe that our We “only accrued ed second and third legislative tent both intent and basic purposes due our for the Congress principles of enacted fairness. (Id.) delay.”7 Court’s the PLRA “to limit the of frivolous Urrutia, lawsuits,” par- ruling Abdul- our vexatious Based Akbar, proceeded concurrence dissent and Supreme tial of commence- “equitably the date consider has indicated Coleman, filter,” June ment for “leaky create a S.Ct. three-strikes (when Nevertheless, request) his IFP due nothing to Millhouse filed at 1764. we find 168.) (Id. delay.” Howev- suggest Congress designed Court’s the statu- our status, grant IFP basic when the Court decides the concerns of fairness addition to above, practical there is a obstacle articulated immedi- need to rule issue we would Appellees’ position should deter- lapse between ately. If there was eligibility mine status the date ruling, we would and the determination prisoner's on rules motion verify to return to the issue and Appellees' position render IFP. such status was still warranted. is, extremely That motions time-sensitive. er, question (which we the equitable whether toll- mined that Bledsoe accrued before (or ing concepts) doctrine similar of his appeal) qualifies notice of could Sage, (unlike as a apply in context. This strike. Fed,Appx. at 793-94. Urrutia) really Because not the District implicate explicitly does statute and correctly concluded complaint re- time limit limitations- some.-sort on immunity vealed an may also, defense its be “tolled.” It is and very at the face dismissed with for least, prejudice, failure to questionable is proper, whether it on a claim which relief hand, interpret one the PLRA so granted, pursuant 1915(e)(2)(B)(ii), that strikes accrued after the of the qualifies Doe However, also as a strike. notice of but before the Court adopt approach the Fourth Circuit’s grants IFP motion generally trigger which a prejudice dismissal for while, the three on strikes rule the other failure to state a not rise.to hand, claim.does concluding that these strikes do not rule, level of a strike. Under this II Heath on “really count” based our own assess- thereby not does strike. qualify specific ment of the circumstances (See proceeding. § 1915(e)(2)(B)(ii), Oral . Under Argument Tran- the court shall (“It script at dismiss the at argument could be an case time it deter- mines equitable that the tolling. equitable But “fails state a tolling, .action Ball, on which granted.” relief Congress under where has stated held that a based on no, dismissal immuni- in no case should an ty strike, does not constitute a unless the proceed without the authbrizing court com- district court “explicitly correctly and con- mencement, says equitable me that cludes that complaint the im- reveals tolling- apply shouldn’t in that situa- munity defense on face and dismisses tion....) (Counsel for In- Appellees).) prejudice] [with complaint unexhausted stead, statutory we read the scheme—giv- 12(b)(6) under Rule states expressly en statutory language, existing that the ground for the dismissal frivo- law, purposes legislation, Ball, lousness.” 726 F.3d at 463 & n.20. basic requir- considerations fairness—as Ball, however,' address a dismissal ing us to look to the date the notice of 1915(e)(2)(B)(ii). under apply We now appeal is in assessing a dis- whether Ball to dismissed on based missal counts as a strike. Strikes accrued immunity 1915(e)(2)(B)(ii). under As in simply after this date do count under Ball, such only a strike if the § 1915(g). prejudice dismissal is with the “court putative Because the second third explicitly correctly concludes that after strikes accrued Millhouse filed his immunity reveals the defense of appeal, they notice count as its face.” Id. asserts that appeal. Mill- ‘correct,’ Doe “was not and that only house has one eligible strike pleading liberal standard he should have on appeal., IFP status opportunity amend his non-immune (specifi- include defendants” B. and Doe Heath II cally prison officials-who al- allegedly if we were to Doe Even count and lowed inmates the Third Circuit access (which not), Heath II we do opinion law library’s computers). (Partial would still have two 167.) strikes—Bledsoe Dissent & Concurrence eligible and Doe. Accordingly, is still for Purportedly, “you cannot ascertain from Sage, status on we deter- the face the dismissal whether dis- 162 done).” (Partial not (which rectly he pleading if the

trict court evaluated 167.) at Concurrence Dissent & against claim non- be amended to state a (Oral- Argument immune defendants.” McLean, majori Fourth In Circuit’s (Counsel for at Transcript Appellant).) 20 at ty opinion length the considered some Doe, “explicitly” In the District Court dis- a question of “whether dismissal without com- prejudice with Millhouse’s missed to a counts prejudice for state claim failure McLean, § 1915(g).” for state a claim’” 566 plaint as a strike under “‘failure] .to It held that “it not.” Id. F.3d at 394. does statutory provision to rule pursuant “a holding, Appellees vigorously contest for solely [such that is to dismissals limited" and, Judge part, agree our with for 1915(e)(2)(B)(ii). reason],” namely, a Ambro most circuits indicated that Byrd, It so it 715 126. because F.3d at strikes. qualify do as that such dismissals that “explicitly correctly concluded] Clements, (8th 465-66 Orr v. F.3d immunity de- complaint reveals Marberry, 2012); Paul v. Cir. F.3d Ball, fense on its face.” 726 F.3d at 463 (7th 2011); Cir. Smith v. 704-06 Veterans (footnote omitted). three unídentifiéd The Admin., (10th F.3d (the only persons to Third Circuit judges Day O’Neal, 2011); 1154-55; 531 F.3d at complaint) in the named defendants Maynard, (10th F.3d judicial immunity were entitled to absolute McLean, curiam); see (per also damages. The District monetary (Shedd, J., concurring at that explained Court further Nevertheless, part). part dissenting to claim with re- cognizable failed state a persuasively disposed the Fourth Circuit request injunc- to his spect additional contrary noted, law. It (i.e., out tive relief a transfer the federal instance, that the Tenth.Circuit offered no According to system). prison McLean, analysis holding. for its Court’, to inequitable it him would be Day). O’Neal, (addressing at 398 opportunity an to an amended file com- Circuit-(in.addition rejecting Ninth to justi- has no plaint. Noting that a prisoner’s theory that prior actions expectation fiable that he incarcer- bewill “brought” him were not because prison, particular ated a the District merely applications were explain on to com- “[t]he Court went denied) subsequently dis concluded plaint fails state failure clearly prejudice missal constitute Doe, protect WL claim.” plain is nothing strike there in the alleged any *3. facts “Milhouse has language distinguishing be pris- it from which could be concluded with' tween dismissals and dismissals with failed, protect him.” officials Id. O’Neal, prejudice. out fact, the District made clear the however, is based McLean approach, merely fail to state did not language of PLRA. “[It] actual Bivens; “it describes neither requirement not read additional does injury implicates conduct nor the Con- already into that was im the statute (and stitution or law” service other federal use plied by Congress’ of the familiar process constitute a thereby phrase [for] failure] ‘dismissed judicial increasingly scarce re- waste unqualified An claim.’ sources). Id. at *4. “And takes a claim presumed failure to state umbrage with the District Court’s decision operate prejudice; the addition amend, regarding appro- prejudice’ modify his leave such words ‘with path simply necessary.” Mc- priate decision di- dismissal is

163 Lean, (footnote 12(b)(6)' 566 at claim omit under presumed Rule is F.3d. Grayson Mayview ted); judgment see also be a State on merits unless oth Hosp., 103, Dep’t 110 specified. erwise See Federated Stores, Moitie, (noting employs language 394, that PLRA [452 bor Inc. v. U.S. 399 12(b)(6)). n.3, PLRA, 2424, from Rule The rowed S.Ct. 69 L.Ed.2d 103 Coleman, filter;” (1981) (“The although leaky not “a ] dismissal failure to state a at also does use meat Federal S.Ct. “a claim-under Rule of Civil 12(b)(6) approach” goal to achieve its of stem Procedure is a axe (citation ming prisoner litiga the flood of frivolous merits.” internal quotation resources, omitted)). “It conserving judicial tion and Mc marks follows that Lean, type prior F.3d at 398. of dismissal failure to contemplated by § state a claim Furthermore, this Court’s rul own is one that an adjudication constituted clearly in Rail ing weighs favor Mc prejudiced on-the merits and Appellees acknowledge Even Lean. of a subsequent-complaint with the same Ball “held that a on dismissal -based [McLean, allegations.” 566 F.3d at 396]. of failure to affirmative defense exhaust By contrast, failure to dismissal applicability be a strike when exhaust prejudice adju- without is not an defense clear from the face of the dication on the merits. See Cooter & preju and the with dismissal Corp., Gell v. Hartmarx [496 U.S. 19-20.) (Appellees’-Brief at The Ball dice.” S.Ct. L.Ed.2d 359 adopted prejudice” same “with (1990) (“[Dismissal ... without preju- ] requirement respect to dismissals dice is opér- does not dismissal immunity. based the defendant’s See an adjudication upon ale] the mer- Ball, 726 n.20. There would (alterations ..” in original) (citing appear to no real be between a difference 41(a)(1)) quoting R. Civ.- P. Fed. for failure to a claim dismissal with (internal omitted)). quotation marks prejudice and a an unex- out dismissal of Consequently, a for failure to dismissal (or prejudice without hausted grounds state a claim on exhaustion prejudice without on immunity prejudice without “does not fall within end, grounds). thereby adopted plain unambiguous meaning on) (and expanded the Fourth Circuit’s § 1915(g)’s phrase unqualified “dis- of reasoning: line missed to state a [for] failure] part requires rule second ” claim’ count and “does not as a strike.” (cid:127) the dismissal failure to ex- based' McLean, (alterations F.3d at 397 haust, 12(b)(6), pursuant to Rule be with original). The District Court Congress prejudice. assume “We state that any of the dismissals at issue existing it passes aware law when appeals prejudice, these were Apex Corp., legislation/’ Miles v. Marine presumed and so are to be with 19, 32, U.S. 111 S.Ct. [498 prejudice, they “operate[ as an ] ad- (1990)], Congress L.Ed.2d 275 used judication on merits.” R. Civ. P. Fed. 12(b)(6) language Rule 41(b). provision. PLRA’s three strikes See 28 Id. 460 n.17. (strike § 1915(g) accrues on dis- Appellees argue missal an action -that “fails to state that Heath II con upon grant- which McLean relief stitutes strike under ed”). A expressly dismissal for failure to state a the District Court determined decision, a claim decision

that the failed to state granted, exception relief which vacated. should be With Bledsoe, adjudication acted as an on merits then the District the cases cited when denied leave to file an amended Court do constitute strikes (See also & Con- pleading. Sage, Partial Dissent § -1915(g). Fed.Appx. at 793- See (concluding at 166 Heath II currence that when he only had strike one because, dismissing strike without (and complaint August his amend, it Mill- effectively leave to barred District his motion denied when filing subsequent house 2015). proceed IFP on May However, allegations).) Dis- with same own dis- expressly trict Court’s order IV. prejudice: missed without proceed motion We Millhouse’s “Milhouse’s is DISMISSED appeal. District IFP We vacate the will prejudice for to state a without failure denying Court’s order IFP motion and his granted may be which relief for further consistent proceedings remand 1915(e)(2)(B)(ii).” pursuant 28 U.S.C. opinion. this with Heath, Even if WL at *5. inadvertently may have AMBRO, dissenting Circuit in Judge, language, prejudice” added this “without concurring in the part disposi- appropriate is not treat us col by my I with result set concur (or including ambiguous tion such even path I in leagues, but take a different strike contradictory) language as a I I getting there. do so believe analysis to ascertain undertake a detailed com statutory that the and our language, really have what the District Court it, are ments on that an clear all, adopted in say. After: we meant begins Byrd deciding bright-line what rule IFP re grants court when Byrd, F.3d at constitutes a strike. quest is filed. when the might “that a dismissal mean While request granted Because through slip as a will intended strike Millhouse, if he has must determine cracks,” limit the Court will least more his accrued two strikes since “more, perhaps unneces likelihood has, normally he Because he partic not a sary, litigation on whether IFP status proceeding barred from with a strike.” Id. dismissal constitutes We ular appeal, three strikes that has prisoners, act typically also who note ab typically forestall further claims se, pro are to take dismissals “at entitled However, I paying sent full fees. required value” and “should face Har precedent our believe Urrutia judge speculate grounds the risburg County Department, Police or even should have based the dismissal 1996), this case controls on.” 658 F.3d at 706. Paul, allows us to the two equitably toll Ruling The IFP C. District Court’s pending Millhouse has accrued Thus, request. our decision as Granting IFP on the motion to disagree I inter my colleagues’ with while will Court’s appeal, we vacate the District Litigation Re pretation and re- Prisoner Millhouse’s IFP motion denial (“PLRA”) Appellees form Act their conclusion proceedings. mand further strike, that, II I Heath as a grant IFP status does not concede should we count strike agree one underlying and reach merits believe, answer, purpose 1915(a), for the and thus his The I lies right to bring case should be remanded. creates an IFP provides “any action. It court of the United States authorize com- DISCUSSION suit, action, any ... of or pro- mencement therein, ceeding, ... or appeal A. An IFP Commences Action prepayment fees,” brought by an indi- of IFP Grant Status gent prisoner. “authorize the com- 1915(g)provides Section language suggests mencement” that an “brought” action is not under the bring no event shall a a civil filing PLRA a simply ap- or by or in appeal action a a civil peal. Indeed, explained have that be- action or proceeding under this section cause prisoner has, the 3 or prior on more [o]nly the court the com- authorize occasions, or while incarcerated detained any prepay- mencement of suit without brought ap- an or facility, action ;.. - fees[,] submitting of ment an in peal in a court of the United States that complaint to pauperis the clerk forma grounds was it dismissed the that is qn does not' of result in commencement frivolous, malicious, or fails to state a litigation ... a [because] determination claim upon granted, which relief be of prisoner whether a has exceeded is prisoner unless imminent under allowable or other number frivolous danger physical injury. of serious inadequate actions forma added). (emphases no Millhouse filed his litigation will to have be made before the 26, appeal May tice of on 2015 and his may commence. 15, request for IFP on June status Urrutia, (alterations' 91 F.3d at 458 n.13 subsequent His strikes accrued after those omitted). quotations We also in complaints when his were dis dates dicated in a three-strikes separate February missed—October 2015 and “action prisoner’s ‘brought’ was — Tollefson, 2016. See Coleman v. proceed pau- when motion informa U.S. —, 1759, 191 803 S.Ct. L.Ed.2d granted.” was Gibbs peris Ryan, v. (2015) (strike dismissal). accrues So (3d 1998); 160, 162 see v. Cir. Oatess “bring” appeal when did Millhouse this (3d Sobolevitch, 428, 429 914 F.2d n.1 meaning under PLRA? Was 1990) (“When complaint is accompanied it, May has it not when he or by pauperis, a motion 'begun granted yet have not because we fee, by payment filing rather than IFP up him status? consideration sets This docketed, is is not and it there rule, apply the three-strikes as how filed, fore not the motion has been until “prior must those strikes constitute occa -granted.”). reasoning is that an IFP sions dismissed.” [were] U.S.C. possibly action cannot commence until added). 1915(g) § If (emphasis May “indigency court is make an both able date, is beginning the two strikes applicant’s determination” and screen apply has accrued then since cannot filing history for three-strikes status. See status, hand, IFP if Urrutia, n.13; bar him On other see also yet begin has his Roman Jeffes, § request pending, for IFP 1915 func (explaining status then IFP trigger screening process appli those two strikes tions as a the three-strikes cations). passes applicant If the IFP rule. appli- § requires, purpose ineligible re- screen as initial review po- granted, majority the court will “au- Yet the have a quest will cants. of the suit the commencement” tentially three-strikes-offending prisoner thorize- action or then will and the appeal, initiate before be ablé to action an To me is clear “brought.” the statute simply screening process complete process. to this a notice filing purpose IFP action That is inconsistent with both the My colleagues believe an the notice appeal begins Congress’s established their hat on hang But appeal.- right process claiming ,§ in a does not exist vacu- 1915(g), 1915(a). PLRA,- Per the an Rather,-§ 1915(a)-is sub- statute’s um. begins that-an when court determines right- that establishes section indigent prisoner seeking IFP-status eli- prisoner himself federal indigent avail gible to do so.1 paying requisite court without. process It such

fee. details how Three B. Has Strikes right. prisoner can .28 Thus, given that Millhouse’s (2) (a 1915(a)(1) seeking to commence for IFP be- yet “an that status shall submit affidavit IFP by cause there has no decision been of all such includes a statement assets status, him IFP we next of possesses the nature prisoner [and] -... must if he two addition- action, decide accrued defense affiant’s the during his pendency al strikes person to re- the that the is entitled belief n - n - dress,” as copy application. well “a certified the as account for trust fund statement the questionable first relates to The strike period the prisoner for 6-month immedi- prejudice of Mill- the dismissal without preceding complaint the ately the complaint II. house’s in Heath Millhouse 1915(g), appeal....”). notice of Section that prison claimed there officials had vio- hand, merely other establishes rights Eighth his lated Amendment rule, nothing more three-strikes is housing dangerous him with a cellmate on a limitation who can claim that than protect failing him. Because Mill- statute, no is in the right. mention There only alleged possible house fear of future none,, majority points to that the assault, and could not be because that rule, eclipse was intended to three-strikes relief, basis dis- 1915(a). §of procedural mandate complaint prejudice missed without 1915(g) serves to ex- Subsection failure state claim under PLRA eligibili- serial filers IFP-status clude and also dismissed his claims without leave ty, a a court will make determination (as futile). to amend amendment would and, if -to petitioner, favorable then argues, the majority the “commencement” “authorize” holds, 1915(a) prejudice that dismissal can- applicant under if the without count as a the PLRA. not a To strike under is three-strikes offender. hold n § Although makes toothless: most that there otherwise Circuits hold Majority brought also relies the Federal action can be court or on district same, Appellate appealed. They are Procedure for its misread and thus treated Rules odd, reading reasoning given holding ing of the PLRA. to base a out of That such Moreover, statute, (in 1915(a) (g)) place. the PLRA not the Federal both Procedure, distinguish Appellate an- IFP controls. does not between when Rules why preju public exposure no reason safety dismissal without threatened his dice should count a strike because prison^ The District Court dismissed with § 1915 no distinction between dis makes prejudice the failure prejudice—see, missals with or without a claim under the PLRA because the 702, e.g., Marberry, v. 658 F.3d Paul judges were immunity entitled to absolute (7th Clements, 2011); Cir. Orr v. 688 F.3d in the exercise of their official See duties. (8th 2012); Price, O’Neal v. Cir. 1915(e)(2)(B)(ii). It also determined (9th 2008); Cir. 531 F.3d Smith injunctive Millhouse’s claim for additional Admin., v. Veterans (that relief particu- he be housed (10th 2011); Cir. see also Patton Jeffer prison lar placed) failed to state a (5th Ctr., son Corr. claim under the PLRA and dismissed 1998); McLean v. contra United prejudice. It then denied Mill- States, (4th 2009) (dis 566 F.3d 391 house leave-to amend his be- without prejudice missal cannot count as a cause that was futile. strike)—we need not decide issue now. argues Doe was not “cor- rect,” and that a liberal pleading

The Heath II preju dismissal standard he dice was leave to amend. If should have opportunity also without worthy of strike-status amend his under the non-im- include PLRA must - “prejudice[] [the mune defendants. He asserts he would of,a subsequent complaint from] prison alleg- have added the officials who McLean, allegations,” with the same 566 edly allowed other inmates to access the isn’t dismissal without leave to opinion relevant Third Circuit the com- equivalent amend functional dismiss puters prison’s library. law prejudice? al with Millhouse has no further argument This goes Although nowhere. Thus, although recourse. any dismissal un immunity typically’ is- an affirmative de- 1915(e)(2)(B) § der “is a dismissal on answer, fense that should be asserted an merits,” judicata the “res here has effect dismissal is in the nonetheless warranted pauperis peti future in forma PLRA immunity context if the defense is Hernandez, 25, tions.” Denton v. 504 U.S. complaint. clear on the face the Ball v. 34, 112 1728, 118 (1992).2 S.Ct. L.Ed.2d 340 (3d 2013). Famiglio, 448, 726 F.3d 463 Cir. Put simply, more Heath II dismissal the Here the District from effectively Court determined filing a barred Millhouse the “subsequent cómplaint only the face of the the complaint with same alle gations,” and it even under judicial is a strike the named officers defendants were majority’s adoption of McLean’s reason capacity sued their official who are enti- ing. immunity. Stump tled to See absolute 349, 355-56, Sparkman, 98 435 U.S. S.Ct. questionable

The next strike arises from 1099, (1978); 55 Brandon E. L.Ed.2d complaint in the dismissal of Millhouse’s Reynolds, ex rel. Listenbee v. Doe, against an which he filed 2000). Cir. And Millhouse judges three Circuit unnamed Third umbrage takes the District' Court’s with stating in an opinion Millhouse had amend, regarding leave to the decision committing confessed to a crime and/or Government, cooperated appropriate path is to the and decision by Congress currently application now Denton involved of former PLRA, 1915(d) 1915(e)(2)(B). was amended done). equitably be tolled until the (which Doe thus tions would he directly has not grants the IFP Id. at application. court a strike. constitutes principle Urrutia' for the 459. Thus stands Doe, in com- Heath II Accordingly, actions, that, purposes IFP (which to be Bledsoe bination with held commence can tolled when date qualifying Sage), in' three are a strike preju applicant otherwise against Millhouse. diced. Tolling Equitable of Millhouse’s C. approach. Other taken .Circuits Strikes See, e.g., F.3d Clipse, Robinson v. three strikes Although Millhouse has (4th 2010) (in. regard Cir. IFP case an him, overly'prejudicial it is bar against process, ing service overdue given particu- him to the Court access pauperis plaintiff held “an in forma appeal, the action lar While facts delay penalized not be for a should caused begun we have yet court’s of his com by the consideration granted application, Millhouse’s IFP delay solely the con plaint. That within ap- the date filed should consider (quotations trol of the court.” omit district (or for IFP sta- request peal least ted)); Dep’t, v. Cook Cnty. Donald Sheriff’s tus). deny IFP The decision or (7th (same); n.5 convenience, request a court’s made Serv., U.S. Postal Johnson v. might ensue. delay thus substantial and' (10th 1988) (in non-pris case, happened holding “delay That is what here. IFP encoun oner request IFP a notice and an court determines tered while district 2015, respectively; June May eligibility plaintiffs financial took Clerk’s Office no action plaintiffs prepares statement denying it, request until five months stayed motion, consume (pending the reso- later in November 2015 period”). limitations the entire of, strikes accrued Sage); lution two occur same outcome should here. during delay Court’s mandated (at prompt our Had Court made least is, the latter proceedings. That stay months) ruling within five Millhouse’s two strikes accrued for quick- more request become aware delay. due to our Court’s ly overlap between this substantial re filed his IFP Urrutia Sage, question whether complaint, taken quest and no was apply strikes be an these Idter court, sought and then he amend Accordingly, take the issue. Ur- should his even add defendants consider approach, equitably mtia time limita though by that statute date- commencement three-strikes tions run. We determined had F.3d 451. (when Millhouse June that, though, period even the limitations request) delay, to our Court’s his due out, fault[: h]e ran was not “[t]his [his] II that the in Heath and rule submitted informa request Doe do apply two months the statute before full prior to accrue due Id. at expire.” limitations making it. making delay of “the Because # # # # 1915(d) we [held] determination pnce that, summary, vacate the Dis- plaintiff an in we should submits of limita- com- pauperis complaint,” statute trict Court’s dismissal of Millhouse’s 1915(g). As plaint determined Sage, the cases that the Court relied on trigger rule the three-strikes are not (with one, exception of

actual strikes

Bledsoe). Although I believe now forward, moving three strikes I

reasons noted above concur with the majority. Wesley BLACKLEDGE,

Charles

Appellant

Olga Grigorievna BLACKLEDGE

No. 16-3667 of Appeals,

United States Court

Third Circuit.

Argued: May

(Opinion August Filed:

Case Details

Case Name: Kareem Millhouse v. Susan Heath

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 4, 2017

Citation: 866 F.3d 152

Docket Number: 15-2278

Court Abbreviation: 3rd Cir.