QUINTEZ TALLEY, Appellant v. PUSHKALAI PILLAI, Psychiatrist, SCI Greene; PA. DEPARTMENT OF CORRECTIONS; U/K MHM1; JOHN E. WETZEL; CAPTAIN SHREDDER; LT. MORRIS; U/K DEFENDANTS
No. 20-1013
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 6, 2024
PRECEDENTIAL. Argued on May 20, 2024.
Quintez Talley
Camp Hill SCI
P.O. Box 8837
2500 Lisburn Road
Camp Hill, PA
Pro Se Appellant
Natasha R. Khan [Argued]
Regina Wang
Brian S. Wolfman
Alyssa Greenstein
Ender McDuff
Tae Min Kim
Andrea Ojeda
Tate Rosenblatt
Carly Sullivan
Georgetown University Law Center
Appellate Courts Immersion Clinic
600 New Jersey Avenue, Suite 312
Washington, D.C. 20001
Court-Appointed Amicus Curiae
Cassidy L. Neal [Argued]
Frank X. Petrini, III
Baum O‘Connor Cullen Chmiel
912 Fort Duquesne Boulevard
Pittsburgh, PA 15222
Counsel for Appellee Pushkalai Pillai
Michael J. Scarinci [Argued]
Office of the Attorney General of Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Daniel B. Mullen
Office of the Attorney General of Pennsylvania
1251 Waterfront Place, Mezzanine Level
Pittsburgh, PA 15222
Counsel for Appellees PA Department of Corrections, John E. Wetzel, Captain Shredder, and Lieutenant Morris
OPINION OF THE COURT
FREEMAN, Circuit Judge.
Appellant Quintez Talley seeks in forma pauperis (IFP) status, which would enable him to proceed in this appeal without prepaying his filing fees. Appellees contend that the “three strikes” provision of the Prison Litigation Reform Act (PLRA) bars Talley from proceeding IFP. Under that provision, a prisoner accrues a “strike” when, on a “prior occasion[],” the prisoner brought an “action or appeal . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.”
I
Litigants who cannot afford to prepay the full cost of court fees may move to proceed IFP.
In order for a dismissal to qualify as a strike, “the entire action or appeal” must have been dismissed on one of the three enumerated § 1915(g) grounds. Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013). Therefore, a “mixed dismissal“—where some claims were dismissed on enumerated grounds but the remaining claims were dismissed on other grounds—does not count as a strike. Talley v. Wetzel, 15 F.4th 275, 280 (3d Cir. 2021).
II2
Talley is a frequent litigant in the federal courts. From among his various civil actions, appellees have identified three potential strikes relevant to this appeal:3
- Talley v. Pillai, No. 18-cv-1060, 2019 WL 6701346 (W.D. Pa. Dec. 9, 2019) (”Pillai“), the instant case, where the District Court dismissed a Pennsylvania medical malpractice claim for failure to comply with state procedural rules and dismissed the remaining claims on other grounds;
- Talley v. Pennsylvania Department of Corrections, No. 18-cv-5087, 2018 WL 6571426 (E.D. Pa. Dec. 12, 2018) (”DOC I“), where the District Court dismissed the entire action for failure to state a claim, granted leave to amend within thirty days, and did not receive Talley‘s amended complaint until after the deadline passed; and
- Talley v. Pennsylvania Department of Corrections, No. 19-cv-1687, 2019 WL 6050744 (E.D. Pa., Nov. 14, 2019) (”DOC II“), where the District Court dismissed each claim for failure to state a claim but
provided alternative reasoning (failure to comply with state procedural rules) for dismissing the medical malpractice claim.
We appointed amicus counsel to address all three potential strikes.4 We exercise “plenary review with respect to the proper interpretation of the PLRA and its three strikes rule.” Dooley v. Wetzel, 957 F.3d 366, 376 (3d Cir. 2020) (citation omitted).
A
We begin with Pillai. Talley brought claims against various defendants
1
In August 2016, Talley was on suicide watch in a psychiatric observation cell (POC) at Pennsylvania‘s State
Correctional Institution (SCI) at Greene.5 Because “his ongoing solitary confinement was causing him to suffer major depression,” he requested a transfer to the Mental Health Unit. J.A. 11. The prison‘s psychiatrist, Dr. Pushkalai Pillai, denied the transfer request and told Talley that if he continued to be suicidal, she would move him to the Restricted Housing Unit (RHU)—a unit not designed for suicidal inmates. Pillai subsequently directed corrections officers to relocate Talley to a camera-equipped cell in the RHU. Talley initially refused to leave the POC and complained to an officer that Pillai was punishing him for reporting his suicidality. He eventually acquiesced to the move after officers threatened to forcibly extract him.
In August 2018, Talley sued Pillai and various prison employees. Among other claims, he asserted that Pillai was liable for medical malpractice under Pennsylvania law.
2
Under Pennsylvania‘s Rules of Civil Procedure, medical malpractice plaintiffs must submit a certificate of merit (COM) “with the complaint or within sixty days after” filing the complaint.
See
In her motion to dismiss, Pillai argued that Talley‘s medical malpractice claim should be “dismissed due to his failure to file [a] certificate of merit.” J.A. 47. Talley opposed the motion by asserting that expert testimony was unnecessary to prosecute the malpractice claim. The District Court held that Talley‘s belated assertion did not comply with the COM rule: his “failure to provide the requisite certificate as required by Rule 1042.3 [therefore] require[d] [the claim‘s] dismissal.” Pillai, 2019 WL 6701346, at *6.
Amicus contends that this dismissal was not for failure to state a claim because it did not discuss the claim‘s factual sufficiency and required that the District Court look beyond the pleadings. We agree.
A complaint is properly dismissed for failing to state a claim “if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that [the] plaintiff‘s claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). The District Court never determined that Talley‘s complaint failed to state a medical malpractice claim. Instead, its dismissal was based solely on the lack of a COM. A COM, however, is not part of the complaint or its allegations.
In Chamberlain v. Giampapa, 210 F.3d 154 (3d Cir. 2000), we examined a New Jersey malpractice rule that is nearly identical to Pennsylvania‘s COM rule. We held that the required affidavit of merit “is not a pleading, is
not filed until after the pleadings are closed, and does not contain a statement of the factual basis for the claim.” Id. at 160. Thus, its absence did not “render[] pleadings insufficient that would otherwise be sufficient.” Id. We reached this conclusion despite the state statute‘s stipulation that a failure to submit an affidavit “shall be deemed a failure to state a cause of action.” Id. (quoting
We later applied Chamberlain‘s holding to Pennsylvania‘s COM rule, emphasizing that the COM “does not have any ‘effect on what is included in the pleadings of a case or the specificity thereof.‘” Liggon-Redding v. Est. of Sugarman, 659 F.3d 258, 263 (3d Cir. 2011) (quoting Chamberlain, 210 F.3d at 160). Therefore, failing to file a COM “can form the basis for a motion for summary judgment” but it cannot form the basis for a Rule 12(b)(6) motion to dismiss for failure to state a claim. Schmigel v. Uchal, 800 F.3d 113, 122 (3d Cir. 2015).6
Because a COM is not part of the pleadings, the District Court necessarily looked beyond the factual allegations to resolve Talley‘s malpractice claim for failure to file a COM.7 The proper resolution in such situations is a grant of summary judgment based on the absence of extra-pleading material—not a dismissal on the pleadings for failure to state a plausible claim. Accordingly, Talley‘s malpractice claim was not resolved on a strike-accruing ground. And because a strike accrues only “if the entire action or appeal is . . . dismissed explicitly” on strike-accruing grounds, Byrd, 715 F.3d at 126, the dismissal of the Pillai complaint is not a PLRA strike.8
We hold in the alternative that DOC I is not a strike.9,10 The parties dispute whether a § 1915(g) dismissal with leave to amend generates a strike when the deadline to amend has passed but the District Court has not formally closed the case. It does not.
1
In November 2018, while at SCI Graterford, Talley sued the Department of Corrections under
Talley filed a
2
In Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020), the Supreme Court specified that the PLRA‘s three-strikes provision “does not apply when a court gives a plaintiff leave to amend his complaint” because “the suit continues.” Id. at 1724 n.4. In such situations, “the court‘s action falls outside of Section 1915(g) and no strike accrues.” Id.; see also Wetzel, 15 F.4th at 282 (recognizing the Lomax “carveout” where “a strike is not called when the district court grants the prisoner leave to amend the complaint“).
Here, the District Court‘s December 2018 dismissal of DOC I did not produce a strike because the Court permitted
Talley to amend his complaint. And the January 2019 closure of the case is a nullity because the Court vacated that order when it granted Talley‘s Rule 60(b) motion in November 2019. See
Appellees argue that, even without a formal closure of the case, Talley accrued a strike by failing to amend his complaint before the deadline. They rely on the Ninth Circuit‘s decision in Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017), which held that § 1915(g) dismissals with leave to amend count as strikes when the plaintiff does not amend within the time limit. Id. at 1143. But for each of the strikes analyzed in Harris, the district court had issued a formal order closing the case. See id. at 1141 (recounting that “Harris failed to file amended complaints within the time designated in the dismissal orders, and the district court then entered judgment against him in each case“); Judgment, Harris v. Ariz. State Prison Health Servs., No. 03-cv-346 (D. Ariz. May 13, 2003); Judgment, Harris v. Maricopa Cnty. Sheriff‘s Off., No. 09-cv-695 (D. Ariz. June 26, 2009); Order, Harris v. Ariz. Dep‘t of Corr., No. 09-cv-841 (D. Ariz. Aug. 4, 2009); Judgment, Harris v. Farrugia, No. 09-cv-737 (D. Ariz. Sept. 8, 2009). The Court in DOC I did not issue any such order by the relevant date for strike-counting purposes—just three days after the amendment period expired. See Parker, 870 F.3d at
153. Without a formal closure, “the suit continues” and the docket remains open for filings. Lomax, 140 S. Ct. at 1724 n.4.
Appellees also point out that, while DOC I was pending on appeal, Talley reported that he had “informed the [District] Court that he wishes to stand on his original complaint.” Talley v. Pa. Dept. of Corr., No. 20-cv-2093 (3d Cir.), ECF No. 11 at 7. He made that statement to this Court in January 2021—over a year after the relevant date for strike-counting purposes, and over a year after he successfully obtained Rule 60(b) relief permitting him to file an amended complaint in DOC I. Appellees nonetheless contend that Talley‘s statement renders the District Court‘s dismissal of the complaint a final order under the “stand on the complaint” doctrine. But Talley took no action to stand on his complaint by December 19, 2019—the date when three-strikes status is measured. And even if he had, the “stand on the complaint” doctrine requires a plaintiff to show “a clear and unequivocal intent to decline amendment and immediately appeal.” Weber v. McGrogan, 939 F.3d 232, 240 (3d Cir. 2019). The doctrine “cannot rescue the lack of a final order given [Talley‘s] ambiguous actions.” Id.11
Finally, Appellees assert that conditioning strikes on the formal closure of cases will allow prisoners to file an “endless stream of frivolous in forma pauperis complaints” by foregoing the opportunity to amend. Dep‘t of Corr. Br. 43 (quoting
Harris, 863 F.3d at 1143). But prisoners are not often given the opportunity to amend their complaints (such as in Pillai). And even when they are, district courts can prevent this “endless stream” by closing lawsuits—whether upon request or by issuing self-executing orders. See Weber, 939 F.3d at 239-40 (discussing self-executing dismissal orders—i.e., non-final dismissal orders that provide express notice that they will ripen into final dismissal orders once the time to amend runs out).
C
Lastly, we turn to DOC II. There, the District Court issued an “alternative grounds” dismissal—it relied upon both a § 1915 and non-§ 1915(g) ground. This amounts to a strike.
1
In January 2018, while at SCI Graterford, Talley told prison officials that he was suicidal, and the officials watched him swallow several foreign objects. DOC II, 2019 WL 6050744, at *1–2. Instead of providing him with medical or psychiatric treatment, officials placed him in a camera-monitored cell, restrained him, and left him there without recreational time or shower access for roughly two weeks. Id. at *2. When he complained that his restraints were too tight, a nurse tightened them further. Id. In April 2019, Talley sued under
In November 2019, the District Court dismissed the action for failure to state a claim. Id. at *1. It discussed each claim in turn, explaining that Talley did not allege facts plausibly supporting an entitlement to relief. Id. at *4–10. As to the malpractice claim, the Court held that the ”de minimis use of force applied by [the nurse] . . . d[id] not constitute . . . medical malpractice” and that Talley did not suffer the harm required for a malpractice claim. Id. at *8 n.74. It also observed that Talley “ha[d] [not] filed a certificate of merit in support of his medical malpractice claim as required by Pennsylvania Rule of Civil Procedure 1042.3(a).” Id. The Court concluded its opinion by stating, “[b]ecause Talley fails to state any plausible claims for relief, his complaint is dismissed with prejudice in its entirety pursuant to
2
The District Court‘s dismissal of the action for failure to state a claim would seem to constitute a strike. See
Amicus contends that the Court “dismissed Talley‘s claim in part for a non-strike reason—meaning that the dismissal was not ‘entirely’ on a strike ground.” Amicus Suppl. Ltr. 3 (citing Byrd, 715 F.3d at 125). But Byrd‘s mixed dismissal rule does not extend to alternative grounds for dismissing a claim. Under the mixed dismissal rule, no strike
accrues unless an “entire action or appeal” is dismissed on enumerated grounds. Byrd, 715 F.3d at 125. That means there is no strike when part of an action is dismissed on enumerated grounds and the remainder is dismissed on other grounds. Wetzel, 15 F.4th at 280. But when a court dismisses a claim using two equally sufficient rationales, one of which is strike-qualifying, that claim has been dismissed on a strike-qualifying ground and its dismissal counts toward a strike.
Here, the District Court‘s alternative holding about the COM did not affect its independent conclusion that Talley failed
Our conclusion here aligns with those of our sister circuits. In O‘Neal v. Price, 531 F.3d 1146 (9th Cir. 2008), the Ninth Circuit concluded that alternative-ground dismissals generate strikes where a valid § 1915(g) basis is “fully sufficient” to resolve the claim. Id. at 1156. The Second Circuit agreed in Griffin v. Carnes, stating that a strike accrues “where one of the grounds for dismissal would independently justify a strike.”
72 F.4th 16, 19 (2d Cir. 2023).14
Our conclusion is also consistent with the text of the three-strikes provision. When an entire complaint is dismissed on alternative grounds, one of which is strike-qualifying, the “action . . . was dismissed” on strike qualifying grounds.
* * *
For the foregoing reasons, we conclude that Talley had one PLRA strike when he filed his notice of appeal in this case: DOC II was a strike, but Pillai and DOC I were not. Because he had fewer than three strikes, we will grant his motion to proceed in forma pauperis for this appeal.