Dawn Ball v. Famiglio

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 12-1067/2604

_____________

DAWN BALL,

Appellant

v.

DR. FAMIGLIO; GLORIA DIGGAN, R.N.; NURSE

DILLELA; VANESSA NICOLA, HYGENIST; NELMS,

DENTIST; NURSE GREEN; BRIAN MENCH, NURSE;

MRS. MENCH; MS. JARRET; MS. BROWN; MS. WELL

CHANCE; NURSE BOYER; P.A. EGAN; P.A.

HIMELSBACK; ERICA STROUP; EYE DOCTOR; MS.

JOHNSON; MAJOR SMITH; DR. FABIAN; CAPTAIN

PINARD; MS. GAMBLE; DR. WOODS; DR.

SHIPTOWSKI; SGT. RAGAR; SGT. SAAR; SGT.

JOHNSON; LT. BOYER; NURSE CANDY OTT

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 08-cv-700)

District Judge: Hon. Yvette Kane

_______________

Argued

May 30, 2013

Before: JORDAN, VANASKIE and COWEN, Circuit

Judges.

(Filed: August 9, 2013)

_______________

Dawn Marie Ball (#OL-0342)

Muncy SCI

P. O. Box 180

Muncy, PA 17756

Pro Se Appellant

Kathryn M. Kenyon [ARGUED]

Pietragallo, Gordon, Alfano, Bosick & Raspanti

301 Grant Street – 38th Fl.

Pittsburgh, PA 15219

Counsel for Appellees Famiglio, Egan, Himelsback,

Stroup, Eye Doctor, Johnson, and Fabian

Jaime B. Boyd

Raymond W. Dorian [ARGUED]

Pennsylvania Dept. of Corrections

Office of Chief Counsel

1920 Technology Pkwy.

Mechanicsburg, PA 17050

Counsel for Appellees Diggan

2

Alan S. Gold [ARGUED]

Gold & Ferrante

261 Old York Road - #526

Jenkintown, PA 19046

Counsel for Appellees Woods, Shiptowski

Matthew E. Carey [ARGUED]

Thomas J. Derbesy [ARGUED]

Richard H. Frankel

Drexel University

Earle Mack School of Law

3320 Market Street

Philadelphia, PA 19104

Court Appointed Amicus Curiae

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Dawn Ball, an inmate in the Restricted Housing Unit

at the Pennsylvania State Correctional Institution Muncy

(“SCI-Muncy”), appeals the denial of her motion for a

preliminary injunction and the grant of summary judgment to

the defendants in this pro se action she brought pursuant to 42

U.S.C. § 1983, in which she alleges deliberate indifference to

her medical needs in violation of the Eighth Amendment.

Because Ball has asked to proceed in forma pauperis (“IFP”)

on appeal, we must determine whether she is eligible for that

status under the Prison Litigation Reform Act (“PLRA”),

Pub. L. No. 104-134, 110 Stat. 1321 (1996). For the

following reasons, we conclude that she is not eligible for IFP

3

status because she had accrued three “strikes” under the

PLRA and was not in imminent danger of serious physical

injury when she brought these appeals. We will therefore

deny her motion to proceed IFP and will also deny without

prejudice her motion for appointment of counsel.

I. BACKGROUND

A. Statutory Background

The federal IFP statute, enacted in 1892 and currently

codified at 28 U.S.C. § 1915, “is designed to ensure that

indigent litigants have meaningful access to the federal

courts,” Neitzke v. Williams, 490 U.S. 319, 324 (1989), and

that “‘no citizen shall be denied an opportunity to commence,

prosecute, or defend an action, civil or criminal, in any court

of the United States, solely because ... poverty makes it

impossible ... to pay or secure the costs’ of litigation.”

Denton v. Hernandez, 504 U.S. 25, 31 (1992) (alterations in

original) (quoting Adkins v. E.I. DuPont de Nemours & Co.,

335 U.S. 331, 342 (1948)). Pertinent here, the statute allows

“[a] prisoner seeking to bring a civil action or [to] appeal a

judgment in a civil action” to proceed “without prepayment of

fees or security therefor,” if she can demonstrate that she is

unable to pay such fees. 28 U.S.C. § 1915(a)(2).

Congress recognized, however, 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.” Id.

(internal quotation marks omitted). And indeed, despite

efforts to curtail the opportunity for abusive filings that free

court access can provide, “[p]risoner litigation continues to

4

account for an outsized share of filings in federal district

courts.” Jones v. Bock, 549 U.S. 199, 203 (2007) (internal

quotation marks omitted). In 1996, in response to the tide of

“substantively meritless prisoner claims that have swamped

the federal courts,” Shane v. Fauver, 213 F.3d 113, 117 (3d

Cir. 2000) (original emphasis omitted), Congress enacted the

PLRA to “filter out the bad claims and facilitate consideration

of the good,” Bock, 549 U.S. at 204.

The PLRA sought to “reduce the quantity and improve

the quality of prisoner suits,” Porter v. Nussle, 534 U.S. 516,

524 (2002), in three main ways. First, it introduced an

exhaustion requirement, which bars an action by a prisoner

complaining of prison conditions “until such administrative

remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). Second, it established “prescreening” provisions

that require a court to dismiss an action or appeal sua sponte

if the action is “frivolous” or “malicious,” “fails to state a

claim upon which relief may be granted,” or “seeks monetary

relief from a defendant who is immune from such relief.” See

28 U.S.C. §§ 1915(e)(2)(B)(i), (e)(2)(B)(ii), 1915A(b); 42

U.S.C. § 1997e(c). Third, it created a so-called “three

strikes” rule to limit the number of lawsuits brought by

prisoners with a history of meritless litigation. Under that

provision, the language of which tracks that of the

prescreening provisions, a prisoner seeking IFP status may

not

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

5

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.

28 U.S.C. § 1915(g). But “[i]t is important to note that

§ 1915(g) does not block a prisoner’s access to the federal

courts. It only denies the prisoner the privilege of filing

before he has acquired the necessary filing fee.” Abdul-Akbar

v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc).1

B. Facts2

Ball is an indigent inmate at SCI-Muncy who suffers

from a variety of physical and mental ailments. Among her

physical afflictions, she has “serious back problems” and

osteoarthritis (App. at 92, 100), she fears that she is losing her

vision due to a lack of medical treatment for her eyes, and she

1

The prisoner is still required to pay the costs of her

action or appeal, a departure from pre-PLRA practice, see

Denton v. Hernandez, 504 U.S. 25, 27 (1992), paying an

initial partial fee followed by installment payments until the

entire fee is paid. 28 U.S.C. § 1915(b)(1).

2

We set forth the facts in the light most favorable to

Ball because “th[e] initial assessment of the in forma pauperis

plaintiff’s factual allegations must be weighted in favor of the

plaintiff.” Denton, 504 U.S. at 32. However, the Supreme

Court has, in the IFP context, “reject[ed] the notion that a

court must accept as having an arguable basis in fact all

allegations that cannot be rebutted by judicially noticeable

facts.” Id. (citation and internal quotation marks omitted).

6

is asthmatic. Also, by her own account, she suffers from

several mental illnesses that include “PTSD, disassociative

[sic] disorder, ... phobias, agoraphobia, severe anxiety, ...

cognitive problems and disorders, ... paranoid-schizophrenic,

constant worry, frightened[,] scared, ... bipolar, manic

depressive, [and] mood swings that are so severe, can’t think

clearly ... .” Ball v. SCI Muncy, No. 08-cv-700 (M.D. Pa.)

(Doc. 216 (“Magistrate Judge’s Report”), pg. 1) (internal

quotation marks omitted).

Ball’s claims in the present action fall into several

broad categories. First, she alleges that she sustained burns,

bruises, cuts, and contusions at the hands of prison officials,

and that she was subsequently denied medical attention for

those injuries. Second, she complains that Dr. Famiglio

“allows the prison officials to take her mattress [and] refuse

her needed meds” (App. at 100), and that prison officials have

also denied her the use of her wheelchair and cane,

exacerbating the pain caused by her back problems and

degenerative joint disease. Third, Ball alleges that her vision

is deteriorating due to a lack of proper medical treatment for

her eyes. Fourth, she alleges that she is “living in a room

with dangerous black mold” (App. at 94) and that Dr.

Famiglio is “continually allowing the prison officials to spray

her with o/c (mace)” (id. at 100), both of which endanger her

health because she suffers from chronic asthma. More

generally, Ball alleges that prison officials have subjected her

to mistreatment in retaliation for the many lawsuits she has

filed against SCI-Muncy and its personnel, and that Dr.

Famiglio denied her medical treatment because she refused

his romantic advances.

7

Appellees deny all of Ball’s allegations, asserting that

“Ms. Ball ... has no need for such [medical] care,” (App. at

88) and that she “has available to her emergency medical

care,” (id. at 89). They also state that Ball has been

described as a “possible malingerer,” that she “feigns

blindness,” and that she “claims back pain ... and numerous

other conditions that have not been supported by any

objective findings or examinations.” (App. at 88-89.) They

also allege that she frequently refuses to leave her cell to see

medical caregivers.

C. Procedural History

1. Litigation Prior to the Present Appeals3

The present action is part of a larger pattern of

repeated and entirely unsuccessful litigation brought by Ball

in the United States District Court for the Middle District of

Pennsylvania. We discuss only those actions that are relevant

to the appeals now before us.

The germane history began in March 2008, with a

complaint filed against SCI-Muncy in which Ball alleged

physical assault, denial of medical treatment, and other

mistreatment. See Ball v. SCI Muncy, No. 08-cv-0391 (M.D.

Pa.). The District Court dismissed that action in December

2008 pursuant to Federal Rule of Civil Procedure 12(b)(6),

noting that Ball’s failure to exhaust her administrative

remedies, as required by the PLRA, was stated in her

3

All of Ball’s actions discussed in this opinion were

filed pursuant to 42 U.S.C. § 1983.

8

complaint. See id. (Doc. 36). We affirmed that dismissal in

July 2010. See id. (Doc. 44).

Ball filed a second civil action in May 2009, claiming

that her constitutional rights were violated because she was

not allowed to participate by phone in a hearing on a paternity

matter she had filed in state court. See Ball v. Hartman, No.

09-cv-0844, 2010 WL 597401 (M.D. Pa. Feb. 16, 2010). In

January 2010, the District Court granted the motion to

dismiss filed by one of the defendants, observing that “[t]he

complaint lacks any allegations against [the defendant], who

is not a prison employee, but rather, a court administrator in

Northhampton County.” See Ball v. Hartman, No. 09-cv-

0844, 2010 WL 146319, at *5-*7 (M.D. Pa. Jan. 11, 2010).4

In February 2010, the Court then dismissed the remaining

claims pursuant to Rule 12(b)(6) on the grounds that the

defendants were not personally involved in the alleged

mistreatment and could not be sued in their supervisory

capacity under § 1983, and that Ball had not pled an injury-

in-fact and therefore lacked standing. See Hartman, 2010

WL 597401, at *2-*3.5 We affirmed the District Court’s

4

The District Court also explained that, “even if the

complaint contained factual allegations against [the

defendant], she would be immune from suit,” Ball v.

Hartman, 09-cv-0844, 2010 WL 146319, at *6 (M.D. Pa. Jan.

11, 2010), in both her official capacity (pursuant to the

Eleventh Amendment) as well as her individual capacity (in

accordance with the doctrine of quasi-official immunity), id.

at *6-*7.

5

The orders accompanying the Hartman opinions

granted the defendants’ motions to dismiss without stating the

reason for doing so. The second order did state that any

9

judgment in October 2010. See Ball v. Hartman, 396 F.

App’x 823, 825 (3d Cir. 2010) (per curiam).

In June 2011, Ball filed another lawsuit, this time

against the state court judge who had ordered her transferred

to SCI-Muncy. Ball alleged that the judge ordered the

transfer with malicious intent. See Ball v. Butts, No. 11-cv-

1068 (M.D. Pa.). The District Court dismissed that case

pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) because the

defendant was entitled to absolute immunity. See Butts, No.

11-cv-1068 (Doc. 8). We dismissed the appeal, stating that it

was frivolous because it “lack[ed] an arguable basis either in

law or in fact,” Ball v. Butts, 445 F. App’x 457, 457 (3d Cir.

2011) (nonprecedential), due to the absolute immunity of the

defendant judge and the lack of any evidence of malice.

Ball filed many other lawsuits in the District Court, all

of which followed the same basic pattern as SCI Muncy,

Hartman, and Butts. She has a total of more than thirty

appeal from the order “is deemed frivolous and not in good

faith,” a certification made pursuant to 28 U.S.C.

§ 1915(a)(3). Ball v. Hartman, No. 09-cv-0844, 2010 WL

597401, *4 (M.D. Pa. Feb. 16, 2010). It nevertheless appears

that Ball’s Hartman complaint was dismissed for failure to

state a claim, because the Court characterized the personal

involvement of a § 1983 defendant as an element of the

claim. See id. at *2 (listing “conduct complained of ...

committed by a person acting under color of state law” as one

of the “essential elements” of a § 1983 claim); Hartman, 2010

WL 146319, at *6 (“The complaint lacks any allegations

against [the defendant], who is not a prison employee, but

rather, a court administrator in Northhampton County.”).

10

actions to her name as of the date of this opinion. All but five

of them have been dismissed by the District Court, and those

remaining five are still pending. As a result of the dismissals,

Ball currently has twenty-two appeals before us in addition to

the present appeals.6

2. The Present Appeals

Ball commenced this particular lawsuit on April 14,

2008, and filed an amended complaint on March 12, 2010.

The amended complaint endeavors to advance Eighth

Amendment claims of deliberate indifference to Ball’s

medical needs based on the quality of care that she received

between 2006 and 2008. Ball also filed a motion for a

preliminary injunction, which the District Court denied by

order dated December 8, 2011. Ball filed a timely notice of

appeal.7

6

That does not include two additional appeals related

to the case from which the present appeals arise, Nos. 10-

1700, 11-2629. We decided the appeal at 10-1700, affirming

the District Court’s denial of another of Ball’s motions for a

preliminary injunction (not the one presently at issue). See

Ball v. Dr. Famiglio et al., 396 F. App’x 836 (3d Cir. 2010)

(per curiam). The appeal at 11-2629 was dismissed for

failure to prosecute.

7

Her notice of appeal was filed on January 4, 2012,

and her appeal was docketed on January 17, 2012 as No. 12-

1067. As discussed in Part II.A.3, infra, the date an appeal

commences is important for determining whether a dismissal

counts as a PLRA strike for purposes of that appeal.

11

Ball originally sued some twenty-eight corrections

officers, medical personnel, and contract health providers

employed or providing services at SCI-Muncy. Through the

process of pretrial litigation, the number of defendants was

reduced, so that the complaint named thirteen department of

corrections medical and correctional staff as defendants,

along with five contract health providers who provided

medical treatment to Ball. In response to motions by the

defendants, the District Court also dismissed a number of

claims from the lawsuit, leaving only claims for inadequate

medical treatment.

On August 15, 2011, the remaining defendants filed

motions for summary judgment. The assigned Magistrate

Judge subsequently issued a Report and Recommendation

that summary judgment be granted based on Ball’s failure to

exhaust her administrative remedies. See Ball v. SCI Muncy,

No. 08-cv-700, (Doc. 216). On May 22, 2012, the District

Court adopted the recommendation and granted summary

judgment to the defendants with respect to all of Ball’s

claims. See Ball v. SCI Muncy, No. 08-cv-700 (Doc. 239).

Ball again timely appealed,8 and the two appeals – the

first from the denial of a preliminary injunction and the

second from the rulings on the merits – were consolidated.

On June 20, 2012, Ball filed a motion to proceed IFP as well

as two motions asserting that she was in imminent danger of

serious physical injury.9 She also filed a motion for

8

Her notice of appeal was filed on June 4, 2012, and

her appeal was docketed June 8, 2012 as No. 12-2604.

9

In August 2012, the District Court revoked Ball’s IFP

status on the grounds that she had accrued three strikes,

12

appointment of counsel. Those motions were referred to this

merits panel, and amicus counsel was appointed.10

II. DISCUSSION11

To date, Ball has accumulated more than twenty-five

dismissals of actions and appeals by the District Court and

this Court. How to consider those dismissals for purposes of

the PLRA is what is principally at issue now. As discussed

above, under the PLRA’s “three strikes” provision, a prisoner

may not “bring a civil action or appeal a judgment in a civil

action or proceeding” if the prisoner has, on three or more

prior occasions, had an action or appeal “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

counting its own dismissals in Hartman and Butts and our

dismissal of the Butts appeal. See Ball v. Hummel, No. 12-cv-

0814, 2012 WL 3614045, at *1 (M.D. Pa. Aug. 21, 2012).

10

Our Amicus is the Appellate Litigation Clinic of the

Earle Mack School of Law at Drexel University, for whose

diligent and expert assistance we express sincere gratitude.

11

The District Court had jurisdiction pursuant to 28

U.S.C. §§ 1331, 1343(a)(3), (a)(4). We have jurisdiction

under 28 U.S.C. § 1291. Because the issues raised in this

appeal arise from Ball’s motion to proceed IFP, and the

District Court did not address her IFP status in this case, there

is no district court order under review. However, this case

presents questions of law regarding the proper interpretation

of 28 U.S.C. § 1915(g), which would be subject to plenary

review in any event. Gibbs v. Cross, 160 F.3d 962, 964 (3d

Cir. 1998).

13

imminent danger of serious physical injury.” 28 U.S.C.

§ 1915(g). The District Court did not dispose of Ball’s claims

in this case under the three strikes provision, but rather based

on Ball’s failure to exhaust her administrative remedies, as

required under another provision of the PLRA, see 42 U.S.C.

§ 1997e(a). However, in her appeal to us, Ball has requested

permission to proceed IFP, which requires that we determine

whether she is eligible for that status in light of the three

strikes rule.

Given the character of previous dismissals in Ball’s

legal proceedings, this appeal necessitates a determination of

whether a dismissal for failure to exhaust administrative

remedies counts as a PLRA strike, and whether dismissal on

the basis of absolute immunity qualifies as a PLRA strike.

Because we conclude that Ball had three strikes for purposes

of the PLRA at the time she filed the present appeals, we

must also determine whether she may still proceed IFP based

on imminent danger of serious physical injury. We take up

each of those questions in turn.

A. Application of the PLRA’s Three Strikes Rule

1. Dismissals for Failure to Exhaust

The PLRA provides that “[n]o action shall be brought

with respect to prison conditions ... by a prisoner confined in

any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). “Requiring exhaustion allows prison

officials an opportunity to resolve disputes concerning the

exercise of their responsibilities before being haled into

court.” Bock, 549 U.S. at 204. It also “has the potential to

reduce the number of inmate suits, and also to improve the

14

quality of suits that are filed by producing a useful

administrative record.” Id.

In their “attempt[s] to implement the exhaustion

requirement, some lower courts have imposed procedural

rules that have become the subject of varying levels of

disagreement among the federal courts of appeals.” Id. One

issue on which the circuits are split is the interaction of the

PLRA’s exhaustion requirement and the three strikes rule.

The majority view seems to be that, based on the plain

language of the three strikes provision, which does not

mention exhaustion, dismissal for failure to exhaust does not

count as a PLRA strike. See Turley v. Gaetz, 625 F.3d 1005,

1013 (7th Cir. 2010) (“[N]either the dismissal of a complaint

in its entirety for failure to exhaust nor the dismissal of

unexhausted claims from an action containing other viable

claims constitutes a strike under § 1915(g).”); Owens v. Isaac,

487 F.3d 561, 563 (8th Cir. 2007) (per curiam) (“The first

case was dismissed without prejudice for failure to exhaust

administrative remedies; such a dismissal is not a strike under

section 1915(g).”); Green v. Young, 454 F.3d 405, 409 (4th

Cir. 2006) (“[R]outine dismissal on exhaustion grounds is not

a strike for purposes of the PLRA.”); Snider v. Melindez, 199

F.3d 108, 115 (2d Cir. 1999) (“[D]ismissal by reason of a

remediable failure to exhaust should not count as a strike.”).

Courts following the majority approach treat failure to

exhaust as an affirmative defense, so that “[a] prisoner’s

failure to exhaust administrative remedies is statutorily

distinct from his failure to state a claim upon which relief

may be granted.” Turley, 625 F.3d at 1013.

However, there are decisions holding that failure to

exhaust constitutes a strike, notwithstanding that exhaustion

15

is not mentioned in §1915(g). The reasoning is that an action

“that fails to allege the requisite exhaustion of remedies is

tantamount to one that fails to state a claim upon which relief

may be granted,” which is a specified ground for a strike.

Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998),

abrogated in part by Jones v. Bock, 549 U.S. 199 (2007).

Courts following that line start from the premise that, due to

the mandatory nature of exhaustion, it is an “essential

allegation of a prisoner’s claim.” Steele v. Fed. Bureau of

Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003), abrogated in

part by Jones v. Bock, 549 U.S. 199 (2007). They thus

“conclude that § 1997e(a) imposes a pleading requirement on

the prisoner,” so that if the plaintiff fails to plead exhaustion,

the court may dismiss the complaint on a Rule 12(b)(6)

motion. Id. at 1210. That minority view appears also to be

based, in part, on the observation that exhaustion should not

be seen as an affirmative defense “because it cannot be

waived.” Id. at 1209 (citing Fed. R. Civ. P. 8(c) (“Failure to

plead an affirmative defense results in a waiver of that

defense.”)).12

The United States Court of Appeals for the District of

Columbia Circuit follows neither the majority nor the

12

That conclusion is at odds with the Supreme Court’s

subsequent holding in Jones v. Bock, 549 U.S. 199 (2007),

that “failure to exhaust is an affirmative defense under the

PLRA, and … inmates are not required to specially plead or

demonstrate exhaustion in their complaints.” 549 U.S. at 216.

However, Bock addressed only the PLRA’s screening

requirements, and not the three strikes rule, and, as discussed

below, left open the possibility that failure to exhaust could

be a basis for dismissal for failure to state a claim.

16

minority approach. In Thompson v. Drug Enforcement

Administration, it suggested instead that, “[b]ecause there is

no categorical answer to the question whether failure to

exhaust administrative remedies counts as failure to state a

claim for Rule 12(b)(6) purposes, the question likewise has

no categorical answer under section 1915(g), the language of

which Congress clearly modeled on Rule 12(b)(6).” 492 F.3d

428, 438 (D.C. Cir. 2007). The Thompson Court reasoned

that, “if a particular statute requires the plaintiff to plead

exhaustion and the plaintiff fails to do so, the court may

dismiss the complaint on a Rule 12(b)(6) motion,” but that,

“even when failure to exhaust is treated as an affirmative

defense, it may be invoked in a Rule 12(b)(6) motion if the

complaint somehow reveals the exhaustion defense on its

face.” Id. The D.C. Circuit has thus chosen to establish a

“bright-line rule that avoids the need to relitigate past cases”:

“if the court dismisses an unexhausted complaint on a Rule

12(b)(6) motion or if it dismisses the complaint sua sponte

and expressly declares that the complaint fails to state a

claim, the dismissal counts as a strike.” Id.

We have not previously addressed the issue of how

exhaustion may relate to the three strikes rule, but we did

consider two related issues in Ray v. Kertes, 285 F.3d 287 (3d

Cir. 2002). In that case, the district court dismissed a

prisoner’s complaint before the defendants were served

because the prisoner had not set forth any steps he had taken

to exhaust administrative remedies. He argued on appeal that

failure to exhaust is an affirmative defense that must be

pleaded and proven by the defendants in a PLRA action, and

he relied in part on Williams v. Runyon, 130 F.3d 568 (3d Cir.

1997), a Title VII case in which we stated that “failure to

exhaust administrative remedies is an affirmative defense in

17

the nature of statute[s] of limitations.” Ray, 285 F.3d at 292

(quoting Williams, 130 F.3d at 573) (internal quotation marks

omitted). We noted in Ray that the majority of appellate

courts that had considered the issue had held that the PLRA’s

exhaustion requirement is an affirmative defense. See id. at

293 (collecting cases). We also observed that “considerations

of policy [and] fairness” come into play when categorizing a

pleading requirement as an affirmative defense, id. at 295

(alteration in original) (internal quotation marks omitted), and

that “it appears that it is considerably easier for a prison

administrator to show a failure to exhaust than it is for a

prisoner to demonstrate exhaustion.” Id.13 We thus “join[ed]

the many other circuits that have held that failure to exhaust is

an affirmative defense to be pleaded by the defendant.” Id.

We also considered in Ray whether failure to exhaust

constituted grounds for a court’s sua sponte dismissal

pursuant to the PLRA’s prescreening provision, 42 U.S.C.

§ 1997e(c). As noted earlier, supra Part II.A, that provision

permits dismissal of an action or claim that is “frivolous,

malicious, fails to state a claim upon which relief can be

13

The Tenth Circuit in Steele explicitly rejected that

part of our reasoning in Ray. It observed that “[a] showing of

exhaustion does not rely solely on the maintenance of an

efficient filing and retrieval system” and that “[t]he prisoner

outlines his own grievance in the prison administrative

system and frames his allegations in federal court.” Steele,

355 F.3d at 1210. As a result, the Court concluded that “it is

the prisoner who can best assert the relationship between his

administrative grievance and court filing,” id., so that there is

“no inequity in placing the burden of pleading exhaustion on

the prisoner,” id. at 1209.

18

granted, or seeks monetary relief from a defendant who is

immune from such relief.” 42 U.S.C. § 1997e(c). Applying

the principle of “expressio unius est exclusio alterius – when

a statute specifically enumerates some categories, it impliedly

excludes others,” Ray, 285 F.3d at 296, we said that

“[n]otably absent from the list is any reference to failure to

exhaust.” Id. We also observed that the final sentence of

§ 1997e(c)(2) states that “‘the court may dismiss the

underlying claim ... without first requiring the exhaustion of

administrative remedies,’ [which] shows that Congress had

not forgotten about the need for exhaustion, but chose not to

include failure to exhaust among the grounds for which the

court could dismiss sua sponte.” Id. (quoting 42 U.S.C.

§ 1997e(c)(2)). And we reasoned that “[t]he statutory

structure also belies any possibility that a failure to exhaust is

included in [§ 1997e](c)(1)’s broad rubric of ‘failure to state a

claim upon which relief can be granted.’” Id. at 296 n.9;

accord Snider, 199 F.3d at 112 (concluding that “fail[ure] to

state a claim as used in Section[] 1997e(c) ... of the PLRA

does not include failure to exhaust administrative remedies”

(first alteration in original) (internal quotation marks

omitted)). Based on the foregoing, we concluded that

“Congress did not intend to include failure to exhaust among

the categories justifying sua sponte dismissal,” Ray, 285 F.3d

at 296, either as an independent ground or under the guise of

failure to state a claim.

Our holdings in Ray, and the reasoning on which they

were based, would seem to compel us to follow the majority

rule and conclude that dismissal for failure to exhaust does

not constitute a strike under the PLRA. Like the prescreening

provisions, the language of § 1915(g) does not include failure

to exhaust in the list of enumerated strike grounds, indicating

19

that Congress did not intend for a dismissal based on

exhaustion to count as a strike. The majority view is also

consistent with our conclusion in Ray that failure to exhaust is

an affirmative defense, rather than an element of a prisoner’s

claim, and that it does not constitute a basis for sua sponte

dismissal for failure to state a claim.

Despite that, however, dictum in Jones v. Bock

suggests that we should follow the D.C. Circuit’s approach

and adopt a clear but flexible rule.14 In Bock, even as it held

that exhaustion is an affirmative defense, see supra note 12,

the Supreme Court added that “that is not to say that failure to

exhaust cannot be a basis for dismissal for failure to state a

claim.” Bock, 549 U.S. at 216. The Court observed that “[a]

complaint is subject to dismissal for failure to state a claim if

the allegations, taken as true, show the plaintiff is not entitled

to relief,” and that “[w]hether a particular ground for

opposing a claim may be the basis for dismissal for failure to

state a claim depends on whether the allegations in the

complaint suffice to establish that ground, not on the nature of

the ground in the abstract.” Id. at 215. For example, if the

allegations in a complaint “show that relief is barred by the

applicable statute of limitations, the complaint is subject to

dismissal for failure to state a claim[,] [but] that does not

make the statute of limitations any less an affirmative

14

We have previously explained that “we should not

idly ignore considered statements the Supreme Court makes

in dicta” because the Court “uses dicta to help control and

influence the many issues it cannot decide because of its

limited docket,” and because ignoring it “increase[s] the

disparity” among the Courts of Appeals. In re McDonald,

205 F.3d 606, 612 (3d Cir. 2000).

20

defense.” Id. The D.C. Circuit’s rule, which was based on

that reasoning in Bock, admits the possibility that “even when

failure to exhaust is treated as an affirmative defense, it may

be invoked in a Rule 12(b)(6) motion if the complaint

somehow reveals the exhaustion defense on its face.”

Thompson, 492 F.3d at 438. That approach is also consistent

with the law of this Circuit concerning affirmative defenses

and motions to dismiss. See Leveto v. Lapina, 258 F.3d 156,

161 (3d Cir. 2001) (“[A] complaint may be subject to

dismissal under Rule 12(b)(6) when an affirmative defense ...

appears on its face.”).15 Cf. Robinson v. Johnson, 313 F.3d

128, 135 (3d Cir. 2002) (noting that “the law of this Circuit

(the so-called ‘Third Circuit Rule’) permits a limitations

defense to be raised by a motion under Rule 12(b)(6), but

only if the time alleged in the statement of a claim shows that

the cause of action has not been brought within the statute of

limitations.” (internal quotation marks omitted)).16

15

The Bock Court cited Leveto v. Lapina, 258 F.3d

156 (3d Cir. 2001), in support of its statement that an

affirmative defense, such as failure to exhaust, may be the

basis of a dismissal for failure to state a claim. See Bock, 549

U.S. at 215.

16

As we noted in Robinson, “[t]he ‘Third Circuit Rule’

dates back at least to 1948 when we recognized ... that

affirmative defenses are ordinarily pleaded pursuant to Fed.

R. Civ. P. 8(c), but that [a] defense could be raised in other

ways.” Robinson v. Johnson, 313 F.3d 128, 135 n.3 (3d Cir.

2002) (citing Hartmann v. Time, Inc., 166 F.2d 127, 139 (3d

Cir. 1947)). Since that time, we have acknowledged that a

number of affirmative defenses that are not listed in Rule

12(b) could still be made by motion, provided that the basis

of the defense was apparent on the face of the complaint.

21

We thus adopt the following rule as it relates to

exhaustion and PLRA strikes: dismissal based on a prisoner’s

failure to exhaust administrative remedies does not constitute

a PLRA strike, unless a court explicitly and correctly

concludes that the complaint reveals the exhaustion defense

on its face and the court then dismisses the unexhausted

complaint for failure to state a claim. The first part of the rule

– pertaining to cases in which the exhaustion defense is not

apparent in the complaint – is likely to cover “the majority of

cases ... [so that] the defense will not be raised on a Rule

12(b)(6) motion and the dismissal will not count as a strike.”

Thompson, 492 F.3d at 438. The second part – which applies

when a court has correctly determined that the exhaustion

defense is apparent on the face of the complaint – follows

from the statutory text of § 1915(g) and our own “Third

Circuit Rule.” “When a court dismisses an unexhausted

complaint under Rule 12(b)(6), thus concluding that the

See, e.g., Rycoline Prods., Inc. v. C & W Unltd., 109 F.3d

883, 886 (3d Cir. 1997) (affirmative defense must be apparent

on the face of the complaint to be subject to a Rule 12(b)(6)

motion to dismiss); Oshiver v. Levin, Fishbein, Sedran &

Berman, 38 F.3d 1380, 1384 n.1 (3d Cir.1994) (“While the

language of Fed. R. Civ. P. 8(c) indicates that a statute of

limitations defense cannot be used in the context of a Rule

12(b)(6) motion to dismiss, an exception is made where the

complaint facially shows noncompliance with the limitations

period and the affirmative defense clearly appears on the face

of the pleading.”); Williams v. Murdoch, 330 F.2d 745, 749

(3d Cir. 1964) (affirmative defense of res judicata may be

raised by a motion to dismiss or by an answer).

22

complaint fails to state a claim, section 1915(g)’s plain text

compels us to count that case as a strike.” Id.17

17

The second part of the rule requires that the

dismissal based on failure to exhaust, pursuant to Rule

12(b)(6), be with prejudice. “We assume that Congress is

aware of existing law when it passes legislation,” Miles v.

Apex Marine Corp., 498 U.S. 19, 32 (1990), and Congress

used the language of Rule 12(b)(6) in the PLRA’s three

strikes provision. See 28 U.S.C. § 1915(g) (strike accrues on

dismissal of an action that “fails to state a claim upon which

relief may be granted”). A dismissal for failure to state a

claim under Rule 12(b)(6) is presumed to be a judgment on

the merits unless otherwise specified. See Federated Dep’t

Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981) (“The

dismissal for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6) is a judgment on the merits.”

(citation and internal quotation marks omitted)). “It follows

that the type of prior dismissal for failure to state a claim

contemplated by § 1915(g) is one that constituted an

adjudication on the merits and prejudiced the filing of a

subsequent complaint with the same allegations.” McLean v.

United States, 566 F.3d 391, 396 (4th Cir. 2009). By

contrast, a dismissal for failure to exhaust without prejudice is

not an adjudication on the merits. See Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 396 (1990) (“[D]ismissal ...

without prejudice is a dismissal that does not operat[e] as an

adjudication upon the merits ... .” (alterations in original)

(citing and quoting Fed. R. Civ. P. 41(a)(1)) (internal

quotation marks omitted)). Consequently, a dismissal for

failure to state a claim on exhaustion grounds without

prejudice “does not fall within the plain and unambiguous

meaning of § 1915(g)’s unqualified phrase ‘dismissed ... [for]

23

2. Dismissals Due to Absolute Immunity

The PLRA’s prescreening provisions require a court to

dismiss an action or an appeal at any time the court

determines that the plaintiff “seeks monetary relief” from “a

defendant who is immune from such relief.” 28 U.S.C.

§§ 1915(e)(2)(B)(iii), 1915A(b)(2); 42 U.S.C. § 1997e(c)(1).

But, like failure to exhaust, immunity is not one of the

enumerated grounds for a strike under § 1915(g), which

indicates that Congress did not intend for dismissal on

immunity grounds to count as a strike. See Russello v. United

States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposefully in the disparate

inclusion or exclusion.” (alteration in original) (citation and

internal quotation marks omitted)). Also, immunity is an

affirmative defense, so that a prisoner’s failure to plead that

the defendant was not immune would not normally provide a

basis for dismissal for failure to state a claim. See Ray, 285

F.3d at 297 (noting that the Supreme Court has criticized the

creation of heightened pleading standards in the PLRA

context). Thus, it would seem clear that a dismissal due to

the immunity of the defendant does not, on its own, count as a

PLRA strike. See Thompson, 492 F.3d at 439 (declining to

treat all dismissals under 28 U.S.C. § 1915A as strikes, in part

fail[ure] to state a claim’” and “does not count as a strike.”

McLean, 566 F.3d at 397 (alterations in original). The

District Court did not state that any of the dismissals at issue

in these appeals were without prejudice, and so they are

presumed to be with prejudice, and they “operate[] as an

adjudication on the merits.” Fed. R. Civ. P. 41(b).

24

because that provision “requires dismissal of complaints that

‘seek[ ] monetary relief from a defendant who is immune

from such relief’ – a reason not covered by section 1915(g)”

(quoting 28 U.S.C. § 1915A(b)(2))).

Again, however, affirmative defenses may be apparent

on the face of a prisoner’s complaint, and immunity could,

like failure to exhaust, provide the basis of a dismissal

pursuant to Rule 12(b)(6). See Pani v. Empire Blue Cross

Blue Shield, 152 F.3d 67, 74-75 (2d Cir. 1998) (dismissing a

complaint under Rule 12(b)(6) because “the complaint itself

establishes the facts necessary to sustain defendant’s

immunity defense”). Under our Court’s practice, then,

immunity could in certain cases justify a dismissal that would

count as a PLRA strike. In addition, “[o]ne of the purposes of

immunity, absolute or qualified, is to spare a defendant not

only unwarranted liability, but unwarranted demands

customarily imposed on those defending a long drawn out

lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1991). For

that reason, “[i]t is also well established that an affirmative

defense of official immunity should be resolved as early as

possible by the court ... .” Pani, 152 F.3d at 75; see also

Vaughn v. U.S. Small Bus. Admin., 65 F.3d 1322, 1326 (6th

Cir. 1995) (“To avoid imposing needless discovery costs

upon government officials, the determination of qualified

immunity must be made at an early stage in the litigation.”).

That suggests that, when a prisoner sues a defendant who is

immune, the court should grant a pre-answer motion to

dismiss based on the affirmative defense of immunity

“without resort to summary judgment procedure, if the

defense appears on the face of the complaint.” Pani, 152

F.3d at 74.

25

Some courts have gone further, suggesting that a

dismissal based on immunity may be tantamount to a

dismissal for frivolousness, which, like failure to state a

claim, is an enumerated basis for a PLRA strike. See, e.g.,

Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1178 (10th

Cir. 2011) (construing a district court’s dismissal to “mean

that the immunity ground for dismissal was subsumed in

frivolousness or appellant’s failure to state a claim, because

appellant affirmatively asserted facts showing that he could

not meet the expropriation exception to [defendant’s]

immunity” (emphasis in original)). The Second Circuit has,

in fact, decided that prisoner actions against defendants who

enjoy absolute immunity are per se frivolous. See Mills v.

Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“The IFP statute

does not explicitly categorize as frivolous a claim dismissed

by reason of judicial immunity, but we will: [a]ny claim

dismissed on the ground of absolute judicial immunity is

‘frivolous’ for purposes of 28 U.S.C. § 1915(g).”).

The text of the PLRA, however, treats dismissal for

frivolousness as separate and distinct from dismissal on

grounds of immunity. Like failure to state a claim,

frivolousness is listed as a ground for prescreening dismissal,

and it is listed separately and distinctly from dismissal due to

immunity. Compare 28 U.S.C. § 1915(e)(2)(B)(i), and id.

§ 915A(b)(1) (requiring dismissal of an action that is

frivolous), with id. § 1915(e)(2)(B)(iii), and id. § 1915A(b)(2)

(dismissal on grounds that the defendant is immune from suit

for monetary relief). And again like failure to state a claim,

dismissal for frivolousness is an enumerated strike ground,

see id. § 1915(g), while dismissal based on immunity is not.

Moreover, to automatically treat a district court’s dismissal on

immunity grounds as one for frivolousness gives inadequate

26

deference to the district court. “[T]he district courts[] … are

all too familiar with factually frivolous claims, [and] are in

the best position to determine which cases fall into this

category. Indeed, the [IFP] statute’s instruction that an action

may be dismissed if the court is satisfied that it is frivolous

indicates that frivolousness is a decision entrusted to the

discretion of the court entertaining the in forma pauperis

petition.” Denton, 504 U.S. at 33 (citation and internal

quotation marks omitted).18 We therefore decline to treat a

18

We note, however, that Denton preceded the

enactment of the PLRA, and that, although it is up to the

district court to make the frivolousness determination, the

dismissal of a frivolous action is now mandatory. See 28

U.S.C. §§ 1915(e)(2)(B)(i), 1915A(b)(1); 42 U.S.C.

§ 1997e(c). We also note that a district court may base its

frivolousness determination either on its conclusion that “a

claim [is] based on an indisputably meritless legal theory” or

on a finding that “the complaint’s factual allegations ... are

clearly baseless,” Neitzke v. Williams, 490 U.S 319, 327

(1989), and that we suggest deference only to the latter. Cf.

Denton, 504 U.S. at 33 (concluding that “a finding of factual

frivolousness is appropriate when the facts alleged rise to the

level of the irrational or the wholly incredible” and that “the

district courts[] ... are in the best position to determine which

cases fall into this category”); Roman v. Jeffes, 904 F.2d 192,

194 (3d Cir. 1990) (stating that “[o]ur review of a district

court decision dismissing a complaint as frivolous is plenary”

but acknowledging that a district court may base its

frivolousness determination either on its conclusion that a

claim is “based on an indisputably meritless legal theory” or

on a finding that the complaint’s “factual contentions are

clearly baseless”).

27

district court’s dismissal due to the defendant’s immunity as a

per se dismissal for frivolousness for purposes of the PLRA’s

three strikes rule.19

19

Although we do not think that a dismissal on the

ground of immunity is per se a dismissal for frivolousness,

we reiterate that the district courts are free to conclude that an

action is frivolous because the defendant is immune – and to

clearly state frivolousness as the reason for the dismissal. As

the Second Circuit recognized in announcing its per se rule,

when a defendant enjoys absolute judicial immunity, the

action is quite likely frivolous. See Stump v. Sparkman, 435

U.S. 349, 356 (1978) (“A judge will not be deprived of

immunity because the action he took was in error, was done

maliciously, or was in excess of his authority ... .”). But even

judicial immunity has its limits. See id. at 356-57 (noting that

a judge “will be subject to liability ... when he has acted in the

clear absence of all jurisdiction” (internal quotation marks

omitted)). And, more generally, a prisoner could have made a

nonfrivolous claim by pleading facts that demonstrated that

an exception to absolute immunity applied, or that the

requirements of qualified immunity were not satisfied, even

though the district court ultimately determined that the

immunity defense remained intact and dismissed the

complaint on that basis. Cf. Hafed v. Fed. Bureau of Prisons,

635 F.3d 1172, 1178 (10th Cir. 2011) (observing that a claim

against an immune defendant “could properly be dismissed

by a district court sua sponte as frivolous” but only “if it [is]

clear from the face of the complaint that the defendant was

absolutely immune from suit and no further factual

development was required”).

28

Instead, we hold that dismissal based on the immunity

of the defendant, whether absolute or qualified, does not

constitute a PLRA strike, including a strike based on

frivolousness, unless a court explicitly and correctly

We also emphasize that we may dismiss as frivolous

an appeal of an action dismissed on immunity grounds. The

PLRA counts each “occasion[]” on which “an action or

appeal” is dismissed on one of the enumerated grounds as a

separate strike, 28 U.S.C. § 1915(g), so that we may dismiss

an appeal as frivolous, causing the prisoner to accrue a strike,

see Hafed, 635 F.3d at 1179, even if the district court

dismissed the action solely on grounds of immunity. And, in

fact, a district court may certify that an appeal would not be

taken in good faith, even if it dismissed the action on grounds

other than frivolousness. See 28 U.S.C. § 1915(a)(3).

Certainly, if the District Court certifies that an appeal would

not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3),

and we dismiss the appeal under § 1915(e)(2)(B)(i) on the

same grounds as those on which the District Court based its

dismissal, then dismissal of the appeal should count as a

strike. But even if the District Court did not certify that an

appeal would be lacking a good faith basis, we may “consider

the nature of the dismissal,” Hafed, 635 F.3d at 1178, such

that the appeal may itself be dismissed as frivolous. In the

case of a district court’s dismissal based on immunity, our

determination that the appeal may be dismissed as frivolous

would be proper when the prisoner “affirmatively asserted

facts showing” that the defendant was immune from suit for a

monetary remedy and that none of the exceptions to such

immunity applied, so that he had no “legally valid claim.” Id.

(emphasis in original) (internal quotation marks omitted).

29

concludes that the complaint reveals the immunity defense on

its face and dismisses the unexhausted complaint under Rule

12(b)(6) or expressly states that the ground for the dismissal

is frivolousness.20

3. Other Questions of Strike Computation

Before applying the rules adopted in the previous

sections to the dismissals of Ball’s various actions, we

address four more questions, first reviewing our recent

answers to two questions of PLRA strike calculation and

then resolving two additional questions. The first question is

whether “unclear” dismissals can be counted as strikes for

purposes of § 1915(g). We answered “no” to that inquiry

earlier this year in Byrd v. Shannon, 715 F.3d 117 (3d Cir.

2013). Byrd concerned the dismissal of a prisoner’s appeal

pursuant to § 1915(e)(2)(B) because it was “without merit.”

Id. at 121 (internal quotation marks omitted). Confronted

with that unclear dismissal, we said that

a strike under § 1915(g) will accrue only if the

entire action or appeal is (1) dismissed

explicitly because it is “frivolous,” “malicious,”

or “fails to state a claim” or (2) dismissed

pursuant to a statutory provision or rule that is

limited solely to dismissals for such reasons,

including (but not necessarily limited to) 28

U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i),

20

As with a Rule 12(b)(6) dismissal based on failure to

exhaust, a dismissal based on immunity must be with

prejudice, if it is to count as a strike. See supra note 17.

30

1915(e)(2)(B)(ii), or Rule 12(b)(6) of the

Federal Rules of Civil Procedure.

Id. at 126. In announcing that rule, we rejected an alternative

approach under which “courts are permitted to consider the

nature of the dismissal and determine whether the dismissal

fits within the language of § 1915(g),” because we felt that

such an approach would “open the door to more litigation ...

.” Id. Applying the rule, we concluded that our dismissal of

the appeal in question did not constitute a strike, because

“[t]he terms ‘frivolous,’ ‘malicious,’ or ‘fails to state a claim’

were not used to dismiss the appeal” and because “[s]ection

1915(e)(2)(B) is not limited to dismissals that are ‘frivolous,’

‘malicious,’ or ‘fail[] to state a claim.’” Id. (second alteration

in original).

The second question is whether dismissal of some

claims within an action on grounds that would constitute a

strike, without dismissal of the entire action, causes the

prisoner to accrue a strike. Byrd also settled that question,

holding that “a strike under § 1915(g) will accrue only if the

entire action or appeal” is dismissed on one of the enumerated

grounds, or based on a statutory provision that limits

dismissal to one or more of those grounds. Id.; see also id. at

125 (“We agree with the majority of our sister courts of

appeals that § 1915(g) requires that a prisoner’s entire action

or appeal be dismissed on enumerated grounds in order for

the dismissal to count as a strike.”). That rule is consistent

with the plain language of the PLRA’s three strikes provision,

which refers to dismissals of an “action or appeal,” 28 U.S.C.

§ 1915(g), rather than the dismissal of individual claims.21 It

21

Other circuits have come to the same conclusion.

31

is also consistent with the Supreme Court’s interpretation of

the PLRA’s exhaustion provision, 42 U.S.C. § 1997e(a). See

Bock, 549 U.S. at 221 (“As a general matter, if a complaint

contains both good and bad claims, the court proceeds with

the good and leaves the bad. [O]nly the bad claims are

dismissed; the complaint as a whole is not. If Congress meant

to depart from this norm, we would expect some indication of

that, and we find none.” (citation and internal quotation marks

omitted)).

The third question is whether, on appeal, an affirmance

of a dismissal (whether or not it was on grounds that would

cause the prisoner to accrue a strike) counts as a separate

strike. Byrd does not directly address that issue, and we have

not previously resolved it, but we think the answer is clear.

The PLRA three strikes provision speaks of possible strikes

only in terms of “an action or appeal ... that was dismissed”

See, e.g., Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir.

2011) (holding that “§ 1915(g) requires that a prisoner’s

entire ‘action or appeal’ be dismissed on enumerated grounds

in order to count as a strike”); Turley v. Gaetz, 625 F.3d 1005,

1009 (7th Cir. 2010) (holding that “a strike is incurred for an

action dismissed in its entirety on one or more of the three

enumerated grounds”); Pointer v. Wilkinson, 502 F.3d 369,

372-73 (6th Cir. 2007) (holding that “if some claims … were

found to have merit, then the dismissal of other frivolous

claims would not render the dismissal a strike” (internal

quotation marks omitted)); Thompson v. Drug Enforcement

Admin., 492 F.3d 428, 432 (D.C. Cir. 2007) (holding that the

plain language of § 1915(g) provides that a plaintiff incurs a

strike only when the entire action is dismissed on one of the

listed grounds).

32

on one of the enumerated grounds, 28 U.S.C. § 1915(g).

Thus,“[u]nder the plain language of the statute, only a

dismissal may count as a strike, not the affirmance of an

earlier decision to dismiss.” Jennings v. Natrona Cnty. Det.

Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). Also, as

noted in Thompson, “[t]he choice of the word ‘dismiss’ rather

than ‘affirm’ in relation to appeals was unlikely an act of

careless draftsmanship,” but rather may be “most plausibly

understood as a reference to section 1915(e)(2), which

requires the court to ‘dismiss the case at any time if the court

determines that ... the action or appeal ... is frivolous or

malicious; [or] fails to state a claim on which relief may be

granted.’” Thompson, 492 F.3d at 436 (emphasis and

alterations in original) (quoting 28 U.S.C. § 1915(e)(2)(B)(i),

(e)(2)(B)(iii)). Therefore, a dismissal of an appeal on one of

the enumerated grounds counts as a PLRA strike, while an

affirmance of a district court’s dismissal does not, even if the

underlying dismissal itself counts as a strike.

The final question is whether a strike accrues as soon

as an action is dismissed, or only when that dismissal has

been affirmed on appeal or the opportunity to appeal has

otherwise come to a close. The statute is silent on whether a

prior dismissal must be final to count as a strike and simply

says that, to bar IFP status, the dismissals need to have

occurred “on 3 or more prior occasions.” 28 U.S.C.

§ 1915(g). But other circuits that have considered the issue

have concluded that a dismissal must be final before it counts

as a strike. See Thompson, 492 F.3d at 439 (noting that “a

dismissal does not become a strike until an appeal thereof has

been resolved or waived”); Jennings, 175 F.3d at 780 (“[A]

§ 1915(e)(2)(B) dismissal should not count against a litigant

until he has exhausted or waived his appeals.”); Adepegba v.

33

Hammons, 103 F.3d 383, 388 (5th Cir. 1996) (“It is

uncontroversial from the plain language of the statute that

Congress intended section 1915(g) only to penalize litigation

that is truly frivolous, not to freeze out meritorious claims or

ossify district court errors. We accordingly read dismissals

under the statute to include only those for which appeal has

been exhausted or waived.”). Cf. Snider, 199 F.3d at 115

(“We also doubt whether the entry of a strike is properly

considered at the time an action is dismissed.”). That rule

makes sense. As the Tenth Circuit recognized, “to count

strikes before the litigant has an opportunity to appeal the

district court’s dismissal is to risk inadvertently punishing

nonculpable conduct.” Jennings, 175 F.3d at 780 (internal

quotation marks omitted). “For example, a ‘hyper-literal’

reading of § 1915(g) to count all district court dismissals as

‘prior occasions’ whether or not the litigant has appealed

those decisions could bar a prisoner’s appeal of an erroneous

third strike, since the appeal would follow three prior

dismissals. Or, an indigent prisoner’s fourth claim could

expire while one or more of his first three dismissals was

being reversed on appeal.” Id. We will therefore follow the

rule of those circuits that hold that a dismissal does not count

as a strike until it has been affirmed on appeal, or the

opportunity to appeal has otherwise concluded.22

22

That rule would, of course, mean that dismissal of an

action that gave rise to an appeal would not count as a strike

for purposes of that appeal, even if it had been on one of the

grounds enumerated in § 1915(g). See Pigg v. FBI, 106 F.3d

1497, 1498 (10th Cir. 1997) (concluding that, because

“‘[p]rior’ is defined in Webster's Ninth New Collegiate

Dictionary as ‘earlier in time,’” the district court erred in

34

4. Tallying Ball’s Strikes for Purposes of

the Present Appeals

Defendants argue that Ball had accrued at least ten

strikes for purposes of these appeals.23 Three of those

counting the plaintiff’s instant action as one of the three prior

actions).

That rule leaves open the question of whether a

prisoner accrues a strike as soon as a dismissal by the district

court is affirmed by a court of appeals, or only when the

Supreme Court has denied or dismissed a petition for writ of

certiorari or the time for filing one has passed. Because there

is no evidence that Ball has filed such petitions, and the time

for filing with respect to the dismissals at issue in these

appeals has passed, we need not resolve that question, though

the logic of our present decision would indicate waiting for

the certiorari period to close is appropriate. See Hafed, 635

F.3d at 1176 (“We now clarify that a strike counts against a

prisoner from the date of the Supreme Court’s denial or

dismissal of a petition for writ of certiorari, if the prisoner

filed one, or from the date when the time to file a petition for

writ of certiorari expired, if he did not.”).

23

Those ten purported strikes are Ball v. SCI Muncy,

No. 08-cv-0391 (M.D. Pa. Dec. 10, 2008); Ball v. Hartman,

No. 09-cv-0844, 2010 WL 597401 (M.D. Pa. Feb. 16, 2010);

Ball v. Butts, No. 11-cv-1068 (M.D. Pa. June 15, 2011),

appeal dismissed as frivolous, 445 F. App’x 457 (3d Cir.

2011) (counting as two strikes); Ball v. Beard, No. 09-cv-

0845 (M.D. Pa. Feb. 3, 2012); Ball v. Campbell, No. 11-cv-

2239, 2012 WL 1979462 (M.D. Pa. June 1, 2012); Ball v.

Giroux, 12-cv-0011, 2012 WL 728069 (M.D. Pa. Mar. 6,

2012); Ball v. Giroux, No. 12-cv-0812, 2012 WL 3597214

35

dismissals24 do not count as strikes because they were not

final when Ball filed the appeals before us now. Three

others25 do not count as strikes for present purposes because

the actions were dismissed after these appeals were filed.

That leaves the District Court’s dismissal of Ball’s complaints

in SCI Muncy, Hartman, and Butts and our dismissal of her

appeal in Butts.

Given the rules set forth in the preceding sections, Ball

has three strikes that bar her IFP status with respect to both of

the appeals before us now.26 First, although the Court

dismissed the complaint in SCI Muncy due to failure to

exhaust, it found that that affirmative defense was plain on

the face of the complaint, because Ball “states that she did not

complete the grievance process.” SCI Muncy, No. 08-cv-

0391 (M.D. Pa.) (Doc. 36, pp. 2-3). Based on that explicit

finding, and because the Court dismissed the complaint on

defendants’ Rule 12(b)(6) motion and we affirmed, that

dismissal caused Ball to accrue a PLRA strike.

In its dismissal of the Hartman action, the District

Court discussed both whether Ball had sufficiently pled the

elements of a § 1983 claim and whether she had alleged a

(M.D. Pa. Aug. 16, 2012); Ball v. D’Addio, 12-cv-0815, 2012

WL 3597249 (M.D. Pa. Aug. 16, 2012); and Ball v. Sisley,

11-cv-0877, 2012 WL 5509899 (M.D. Pa. Nov. 14, 2012).

24

Beard; Giroux, No 12-cv-0011; and Campbell.

25

Giroux, No. 12-cv-0812; D’Addio; and Sisley.

26

The analysis is the same for appeals 12-1067 and 12-

2604, now before us, because the operative strikes all

occurred prior to both of these appeals.

36

cognizable injury-in-fact sufficient for Article III standing.

See supra note 5.27 However, the District Court found that

Ball failed to plead one of the “essential elements” of a

§ 1983 claim because she had not alleged the personal

involvement of the defendants and therefore had not pled

“that the conduct complained of was committed by a person

acting under color of state law.” Hartman, 2010 WL 597401,

at *2; see also id. (“[E]ach named defendant must be shown,

via the complaint’s allegations, to have been personally

involved in the events or occurrences which underlie [the]

claim.”); Hartman, 2010 WL 146319, at * 5 (observing that

there were no factual allegations against one of the

defendants). The Court thus dismissed the case on

defendants’ Rule 12(b)(6) motions for failure to state a claim,

see Hartman, 2010 WL 597401, at *3; Hartman, 2010 WL

146319, at *6-*7, we affirmed, and that dismissal represents

Ball’s second strike.

The District Court’s dismissal of Butts does not count

as a strike because it was based on immunity. See Butts, No.

11-cv-1068 (M.D. Pa.) (Doc. 8) (dismissing the complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii)). However, we

dismissed the appeal in Butts as frivolous, saying that “[a]n

appeal is frivolous if it lacks an arguable basis either in law or

in fact,” and that Ball’s appeal lacked any such basis because

she had “alleged nothing suggesting that Judge Butts acted in

the clear absence of all jurisdiction.” Butts, 445 F. App’x at

458 (internal quotation marks omitted).28 Because

27

The Court also considered the doctrines of Eleventh

Amendment and quasi-judicial immunity. See supra note 4.

28

We also noted that, “[t]o the extent that Ball’s

request for injunctive relief might not have been subject to

37

frivolousness is an enumerated strike ground, our dismissal of

Ball’s Butts appeal caused her to accrue her third strike. Ball

therefore had three strikes at the time she commenced these

appeals, which would generally bar her from proceeding

IFP.29

B. Imminent Danger of Serious Physical Injury

Even though Ball has three strikes with respect to both

of the present appeals, she may proceed IFP if, at the time she

filed her appeal, she was “under imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g). Ball alleges danger of

serious injury based on each of the types of mistreatment that

she says she has suffered: burns and bruises sustained at the

dismissal under § 1915(e)(2)(B)(iii) [for immunity], it was

subject to dismissal under § 1915 (e)(2)(B)(ii) [for failure to

state a claim] because such relief is not available against ‘a

judicial officer for an act ... taken in such officer’s judicial

capacity’ ... .” Butts, 445 F. App’x at 458 (first alteration in

original) (quoting 42 U.S.C. § 1983).

29

In August 2012, the District Court revoked Ball’s

IFP status on the ground that she had accrued three strikes,

counting its own dismissals in Hartman and Butts and our

dismissal of the Butts appeal. See Hummel, 2012 WL

3614045, at *1; supra note 9. For the reasons set forth in this

opinion, the Court’s Butts dismissal does not count because it

was based on the immunity of the defendant judge. However,

the District Court could have revoked Ball’s IFP status at the

time it dismissed the Hummel action in August 2012, by

counting its dismissal of SCI Muncy as the third strike.

38

hands of prison personnel, denial of the use of a wheelchair or

cane and of pain medication for her arthritis, lack of proper

treatment for her vision, and exposure to mold and mace that

has aggravated her asthma.

“Before denying leave to proceed IFP, courts must

review a frequent filer’s well-pled allegations to ensure that

the prisoner is not in imminent danger” of serious physical

injury. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.

2003). “The imminent danger exception allows the district

court [or an appellate court] to permit an otherwise barred

prisoner to file a complaint I.F.P. if the prisoner could be

subject to serious physical injury and does not then have the

requisite filing fee.” Abdul-Akbar v. McKelvie, 239 F.3d 307,

315 (3d Cir. 2001) (en banc). Congress included the

exception as a “safety valve for the ‘three strikes’ rule”

because it “[r]ecogniz[ed] that it could take prisoners [with

three strikes] a significant period of time to obtain the filing

fee.” Id.

“‘Imminent’ dangers are those dangers which are

about to occur at any moment or are impending.” Id. “By

using the term ‘imminent,’ Congress indicated that it wanted

to ... prevent impending harms, not those harms that had

already occurred.” Id.; see also Medberry v. Butler, 185 F.3d

1189, 1193 (11th Cir. 1999) (“Congress’ use of the present

tense in § 1915(g) confirms that a prisoner’s allegation that he

faced imminent danger sometime in the past is an insufficient

basis to allow him to proceed in forma pauperis ... .”). The

danger must also be imminent at the time the complaint or

appeal is filed. See Abdul-Akbar, 239 F.3d at 312 (“[A]

prisoner may invoke the ‘imminent danger’ exception only to

seek relief from a danger which is ‘imminent’ at the time the

39

complaint is filed.”); Banos v. O’Guin, 144 F.3d 883, 885

(5th Cir. 1998) (“[T]he language of § 1915(g), by using the

present tense, clearly refers to the time when the action or

appeal is filed ... .”).

Although § 1915(g)’s “imminent danger” exception

might appear clear in theory, in practice it represents an

“amorphous standard.” Ciarpaglini, 352 F.3d at 331. Courts

have found imminent danger when a prisoner was placed near

enemies who had beaten him, Ashley v. Dilworth, 147 F.3d

715 (8th Cir. 1998), when a prisoner suffered headaches and

other symptoms as a result of exposure to dust and lint, Gibbs

v. Cross, 160 F.3d 962 (3d Cir. 1998), and when a prisoner

needed dental care due to an oral infection, McAlphin v.

Toney, 281 F.3d 709 (8th Cir. 2002). The denial or

withdrawal of needed medications can also constitute an

imminent danger. See, e.g., Brown v. Johnson, 387 F.3d

1344, 1346 (11th Cir. 2004) (withdrawal of medications for

HIV and hepatitis); Ciarpaglini, 352 F.3d at 330 (denial of

medication for bipolar, attention deficit, and panic disorders).

But “[c]ourts … deny leave to proceed IFP when a

prisoner’s claims of imminent danger are conclusory or

ridiculous.” Ciarpaglini, 352 F.3d at 331. For example,

complaining two years later of inadequate protection from

reprisals by other prisoners can hardly be said to be an

allegation of “imminent” danger, Heimermann v. Litscher,

337 F.3d 781, 782 (7th Cir. 2003), just as working in

inclement weather may not be “danger” at all, Martin v.

Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Courts also

reject imminent danger claims when a prisoner alleges only a

past injury that has not recurred. See, e.g., Abdul-Akbar, 239

F.3d at 315 (concluding that being sprayed with pepper spray

40

on one occasion is not imminent danger); Abdul-Wadood v.

Nathan, 91 F.3d 1023 (7th Cir. 1996) (concluding that being

given Ibuprofen instead of a stronger pain medication for an

injury that had already healed is not imminent danger). And

“vague and utterly conclusory” assertions that medical

treatment has been withheld, particularly when a prisoner has

been seen repeatedly by a physician, do not amount to a

showing of imminent danger. White v. Colorado, 157 F.3d

1226, 1231 (10th Cir. 1998).

Most of Ball’s allegations plainly fail to demonstrate

imminent danger of serious physical injury that would entitle

her to the exception to the PLRA bar. Her imminent danger

allegation based on burns and bruises that she says she

sustained at the hands of prison personnel is based on a single

past incident, and therefore does not suggest a threat of future

harm. Cf. Abdul-Akbar, 239 F.3d at 315 n.1 (concluding that

a single alleged past assault with pepper spray did not

constitute imminent danger). Also, her allegation that her

injuries from that incident went untreated is not supported by

the record. Her allegations relating to her failing eyesight and

osteoarthritis represent disagreements about the quality of the

medical care that she is receiving which, even if true, are not

sufficient to support an imminent danger claim. See Brown v.

Beard, 492 F. Supp. 2d 474, 478 (E.D. Pa. 2007) (rejecting

imminent danger claim when prisoner “does not dispute that

he is receiving medical attention, but merely disputes the

findings and quality of the treatment he is receiving”).

Moreover, even if poor care for her past injuries, her eyesight,

or her arthritis may prove detrimental to Ball’s health over

time, they do not represent “imminent dangers” which are

“about to occur at any moment or are impending.” Abdul-

Akbar, 239 F.3d at 315.

41

Ball’s allegation of imminent danger based on having

been sprayed with mace is contradicted by the record, see

Ball v. Buckley, No. 11-cv-1829 (M.D. Pa.) (Doc. 81) (noting

that Dr. Famiglio had cleared her for the use of mace, given

her history of assaultive behavior, after balancing her mild

asthma with safety and security needs),30 but her allegation of

imminent danger due to mold in her cell is similar to one that

we have found sufficient to invoke the exception. In Gibbs,

supra, a prisoner alleged that he was forced to breathe

particles of lint and dust that were dispersed into his cell

through the ventilation system. The prisoner claimed to have

been suffering from “severe headaches, changes in voice,

mucus that is full of dust and lint, and watery eyes,” and that,

“depending on the nature of the particles that he is breathing,

there is a significant possibility that he is under imminent

danger of serious physical injury.” Gibbs, 160 F.3d at 965

(internal quotation marks omitted). We rejected the

30

Ball’s mace-based allegation of imminent danger is

also similar to one that we rejected in Abdul-Akbar v.

McKelvie, 239 F.3d 307 (3d Cir. 2001). Ball’s allegation

appears to be based on a single incident in August 2011 that

is the subject of another of Ball’s lawsuits, in which prison

officials used mace to secure her after she refused to answer

direct orders or to uncover the door to her cell when

medications were offered. See Ball v. Buckley, No. 11-cv-

1829 (M.D. Pa.) (Doc. 82). As such, it is insufficient to

support a claim of imminent danger. See Abdul-Akbar, 238

F.3d at 315 n.1 (concluding that a single alleged incident in

which the prisoner was sprayed with pepper spray does not

“suffice to establish ... an ongoing danger” at the time an

appeal was filed).

42

defendant’s argument that the prisoner’s allegations were

merely speculative, and concluded that they were sufficient

for him to claim the benefit of the exception to the PLRA’s

three strikes rule. See id. (“Inmates ought to be able to

complain about unsafe, life-threatening condition[s] in their

prison without waiting for something to happen to them.”

(alteration in original) (internal quotation marks omitted)).

Gibbs, however, is distinguishable. The defendant in

that case did not contradict the prisoner’s allegations as to the

air quality in his cell or the nature of his symptoms, but rather

“attempt[ed] to minimize such allegations by emphasizing

their speculative nature.” Id. We held that, “under our liberal

pleading rules,” a district court must “credit[] those

allegations of ‘imminent danger’ that have gone

unchallenged.”31 Id. at 966. In this case, Dr. Famiglio

testified that Ball is not exposed to mold or other

“environmental elements” and “has not had a reported or

witnessed asthma attack since her incarceration several years

ago.” (App. at 106.) The record also suggests that any

breathing problems that Ball suffered at the time she filed this

appeal may have been due to a fecal bacterial lung infection

(for which she was treated) that was caused by her smearing

herself with her own feces. Those facts tend to refute Ball’s

mold-based imminent danger allegation. Cf. Polanco v.

Hopkins, 510 F.3d 152, 155 (2d Cir. 2007) (concluding that

prisoner’s allegations that he had been exposed to mold in a

shower “cannot support a determination that he was in

31

How Gibbs may be affected by the stricter pleading

standards instituted by the Supreme Court’s decision in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2006), is not a

question we need to address today.

43

imminent danger of serious physical injury” (internal

quotation marks omitted)).

The conflicting statements regarding Ball’s mold-

related imminent danger allegation raise the question of

whether remand is warranted. As we noted in Gibbs,

§ 1915(g) “will often times necessitate further factfinding

proceedings once the imminent danger allegation is

challenged[,] a byproduct of the PLRA most likely not

contemplated by Congress, but which must nonetheless be

handled by the courts.” 160 F.3d at 967 n.8. The Supreme

Court has cautioned that “the in forma pauperis statute ...

accords judges not only the authority to dismiss a claim based

on an indisputably meritless legal theory, but also the unusual

power to pierce the veil of the complaint’s factual allegations

and dismiss those claims whose factual contentions are

clearly baseless,” such as “claims describing fantastic or

delusional scenarios ... .” Denton, 504 U.S. at 32 (quoting

Neitzke, 490 U.S. at 327-28) (internal quotation marks

omitted). Thus, neither Gibbs nor our other precedents

require us to “accept as having an arguable basis in fact all

allegations that cannot be rebutted by judicially noticeable

facts,” id. (citation and internal quotation marks omitted), or

prevent us from “discrediting factual claims of imminent

danger that are clearly baseless … .” Gibbs, 160 F.3d at 967

(internal quotation marks omitted).32

32

The Supreme Court’s holding that a court may

dismiss a prisoner’s claim if the allegations are “fanciful,

fantastic, [or] delusional,” Denton, 504 U.S. at 32-33 (citation

and internal quotation marks omitted) was limited to the

dismissal of claims as frivolous. But we think that the

underlying reasoning, based on the purpose of the PLRA to

44

Those principles allow us to consider the credibility of

Ball’s mold-related allegations in the context of all of the

facts of this case to determine whether a remand on the

question of imminent danger is necessary. See Taylor v.

Watkins, 623 F.3d 483, 485 (7th Cir. 2010) (“[W]hen a

defendant contests a plaintiff’s claims of imminent danger, a

court must act to resolve the conflict. A contrary conclusion

would mean that a three-strikes plaintiff could proceed IFP

whenever his allegations of imminent danger were facially

plausible ... .”); White, 157 F.3d at 1232 (concluding that the

defendant “has failed to raise a credible allegation that he is in

imminent danger of serious physical harm, and, therefore, he

does not come under the exception to § 1915(g)”). That

approach is particularly appropriate in this case because it has

proceeded through discovery and was disposed of on

defendants’ motions for summary judgment. See Denton, 504

U.S. at 33 (noting that a prisoner’s “improbable allegations

might be properly disposed of on summary judgment” and

after “factual development”).

Based on the record before us, we conclude that Ball’s

mold-related allegations are not sufficiently credible to

warrant remand. Her medical records and the testimony of

Dr. Famiglio cast serious doubt on whether she had actually

been exposed to mold at the time she filed this appeal and,

even if she had been, whether it had the effect she alleges,

given that she suffered from “no current [medical] conditions

requiring regular monitoring let alone treatment.” (App. at

reduce frivolous prisoner litigation, applies equally to factual

allegations of imminent danger that would permit a prisoner

to avoid the application of the PLRA’s three strikes provision.

45

89.) Moreover, by her own admission, Ball “see[s] and

hear[s] things not there,” and “can’t think clearly.”

(Magistrate’s Judge’s Report at 1 (quoting Ball v. Beard, No.

09-cv-0845 (M.D. Pa.) (Doc. 42, pp. 6-7)) (internal quotation

marks omitted).) Ball’s admitted “cognitive problems and

disorders,” id., make her claims of exposure to mold and

resulting asthma attacks less believable than they might

otherwise be.33 Lastly, Ball has provided no evidence to

support her mold-related allegations – or any of her other

physical injury allegations – in either of her motions

regarding imminent danger. Because a prisoner claiming that

she is in imminent danger of serious physical harm must

“make specific [and] credible allegations to that effect,”

Childs v. Miller, 713 F.3d 1262, 1267 (10th Cir. 2013)

(alteration in original) (internal quotation marks omitted), and

Ball has failed to do so, the imminent danger exception does

not apply, and her three PLRA strikes bar her from IFP status

for purposes of these appeals.

33

We are not implying that prisoners with delusions

are to have their allegations disregarded for that reason alone.

While an admittedly delusional plaintiff may face credibility

challenges based on the existence of his or her delusions, the

record ought otherwise provide some support for a negative

determination on credibility before the court entirely

discounts the claim of imminent danger. We also do not

suggest that a credibility determination may be based on a

prisoner’s prior litigation history alone. See Gibbs, 160 F.3d

at 966 (“Congress [in enacting § 1915(g)] was clearly

concerned with continuing to afford in forma pauperis filing

status to inmates who had a history suggestive of abusing the

judicial system.”).

46

III. CONCLUSION

For the foregoing reasons, we will deny Ball’s request

to proceed IFP on these appeals. Unless she pays the

docketing fee within 14 days of the judgment rendered

herewith, these appeals will be dismissed pursuant to Third

Circuit L.A.R. 107.1(a). Ball’s motion for appointment of

counsel will be denied without prejudice.

47