Kareem Millhouse v. Susan Heath

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 15-2278

________________

KAREEM HASSAN MILLHOUSE,

Appellant

v.

LT S.I.S. SUSAN V. HEATH; ERB OFFICER;

JAMES FOSNOT; WARDEN CANAAN USP;

SCOTT HOLZAPLE; FREDERICK ENTZEL; JOHN DOES

1-10

______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 1-14-cv-01637)

Honorable Sylvia H. Rambo, District Judge

______________

Argued May 10, 2017

BEFORE: AMBRO, RESTREPO, and COWEN, Circuit

Judges

(Opinion Filed: August 4, 2017)

______________

Stephen A. Fogdall (ARGUED)

Emily J. Hanlon

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Counsel for Appellant

Timothy S. Judge (ARGUED)

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Counsel for Appellees

______________

OPINION OF THE COURT

______________

COWEN, Circuit Judge.

Plaintiff Kareem Hassan Millhouse, a prisoner at USP

Lewisburg, appeals from an order of the United States District

Court for the Middle District of Pennsylvania denying his

motion to proceed in forma pauperis (“IFP”).

Initially, this Court must decide whether Millhouse is

eligible for IFP status on appeal under the Prison Litigation

2

Reform Act (“PLRA”). We conclude that he is eligible, and,

accordingly, we grant his motion to proceed IFP on appeal. For

purposes of this appeal, Millhouse has only one strike. The

Court must look to the date the notice of appeal is filed—and

not the date that the Court rules on a prisoner’s motion to

proceed IFP—in assessing whether a particular dismissal counts

as a strike. In short, strikes that accrue before the filing of the

notice of appeal count—while strikes that accrue after the notice

of appeal is filed do not. While the Bledsoe strike accrued

before the filing of Millhouse’s notice of appeal, both Doe and

Heath II were decided after Millhouse filed his notice of appeal.

However, even if we were to count Doe and Heath II (which we

do not), Millhouse would still only have two strikes, i.e.,

Bledsoe and Doe. Because the District Court explicitly and

correctly concluded that Millhouse’s complaint revealed an

immunity defense on its face and dismissed with prejudice for

failure to state a claim upon which relief may be granted

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Doe qualifies as a

strike. But we also conclude that a dismissal without prejudice

for failure to state a claim does not rise to the level of a strike.

Accordingly, Heath II does not qualify as a strike.

Turning to the merits of the underlying decision by the

District Court, we will vacate the District Court’s order and

remand for further proceedings.

I.

On August 22, 2014, Millhouse filed a pro se complaint

against several prison employees, alleging constitutional

violations under the Bivens doctrine. In a May 5, 2015 order,

the District Court denied Millhouse’s motion for leave to

proceed IFP, dismissed his complaint under 28 U.S.C. § 1915(g)

3

without prejudice to refiling if Millhouse submits the full filing

fee, and denied his motion for leave to amend (as well as his

motion for a preliminary injunction and for leave to add

exhibits). In its accompanying memorandum, the District Court

identified five strikes pursuant to § 1915(g) and found that

Millhouse failed to establish that he was under imminent danger

of serious physical injury.

Acting pro se, Millhouse filed a notice of appeal on May

19, 2015. On June 15, 2015, he moved to proceed with this

appeal IFP. On November 6, 2015, we stayed the instant case

pending Millhouse v. Sage, C.A. No. 14-3845, another appeal

filed by Millhouse. On February 11, 2016, the Court issued its

opinion in Sage. In this disposition, we determined that only

one of the putative strikes cited by the District Court actually

qualifies as a strike: Milhouse v. Bledsoe, No. 10-cv-0053

(M.D. Pa. Oct. 6, 2010).1 See Millhouse v. Sage, 639 F. App’x

792, 792-95 (3d Cir. 2016) (per curiam).

While this appeal was stayed, the District Court

considered two other pro se actions filed by Millhouse:

Milhouse v. Heath, No. 15-cv-00468 (M.D. Pa.) (“Heath II”),

and Milhouse v. Doe, No. 16-cv-00146 (M.D. Pa.).

In his Heath II complaint (filed on March 9, 2015),

Millhouse claimed that prison officials violated the Eighth

Amendment by housing him with another inmate who posed a

risk of danger to him. In an October 27, 2015 order, the District

Court stated that Millhouse’s motion to proceed IFP (construed

1

It appears that Millhouse has spelled his name as

“Milhouse.” Although the District Court also used this spelling,

his prison records spelled his name as “Millhouse.”

4

as a motion to proceed without full prepayment of the filing fee)

“is GRANTED,” “Milhouse’s complaint is DISMISSED

without prejudice for failure to state a claim upon which relief

may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii),”

“[t]he Clerk of Court shall CLOSE this case,” and “[a]ny appeal

from this order will be deemed frivolous, not taken in good faith

and lacking probable cause.” Milhouse v. Heath, No. 15-cv-

00468, 2015 WL 6501461, at *5 (M.D. Pa. Oct. 27, 2015). In

its accompanying memorandum, the District Court explained

that Millhouse did not allege any facts from which it could be

found that he was injured by his cellmate. “While Milhouse

may assert that he is in danger because of the dangerous nature

of his cellmate, this type of danger is speculative and not a basis

for relief.” Id. at *4. According to the District Court, Millhouse

also had no constitutional right to choose his place of

confinement or his cellmate. Given Millhouse’s failure to set

forth any factual allegations giving rise to cognizable claims, “it

is impossible to conclude that defendants have deprived

Milhouse of any constitutional rights entitling him to monetary

damages, and as stated above Milhouse has no entitlement to

injunctive relief in the form of a transfer out of the federal

prison system.” Id. “As such, the present complaint will be

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as Milhouse

fails to state a claim against the defendants upon which relief

may be granted.” Id. The District Court further explained in its

memorandum that the complaint would be dismissed without

leave to amend as it would be inequitable and futile to grant

Millhouse the opportunity to do so.

On January 27, 2016, Millhouse filed his complaint in

Doe against three unidentified Third Circuit judges. According

to Millhouse, a Third Circuit opinion falsely asserted that he had

confessed to committing a crime, and this opinion was accessed

5

by other inmates on a law library computer, who then harassed

and assaulted Millhouse. In a February 24, 2016 order, the

District Court stated that Millhouse’s motion to proceed IFP

(again construed as a motion to proceed without full prepayment

of the filing fee) “is GRANTED,” “Milhouse’s complaint is

DISMISSED WITH PREJUDICE for failure to state a claim

upon which relief may be granted pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii),” “[t]he Clerk of Court shall CLOSE this

case,” and “[a]ny appeal from this order will be deemed

frivolous, not taken in good faith and lacking probable cause.”

(A285.) In a footnote, the District Court explained that

Millhouse “has only named defendants who have absolute

immunity” and that it would be inequitable to grant him an

opportunity to file an amended complaint against those

defendants. (A285 n.1.) According to the District Court’s

memorandum, the judges were entitled to absolute immunity

from monetary damages because Millhouse’s claims were based

on actions taken in the exercise of their official duties. Noting

that Millhouse appeared to claim he was in danger of future

assaults and sought a transfer out of the federal prison system,

the District Court also concluded that he clearly failed to state a

cognizable claim. Millhouse did not allege any facts indicating

that prison officials failed to protect him, and he also did not

name any prison officials as defendants in his complaint. A

prisoner, in turn, has no justifiable expectation that he will be

incarcerated in a particular facility. “While there is no

indication that Milhouse initiated this lawsuit with malicious

intentions, the complaint is suitable for summary dismissal

under the in forma pauperis statute because it fails to articulate

an arguable factual or legal basis under federal law.” Milhouse

v. Doe, No. 16-cv-00146, 2016 WL 727619, at *4 (M.D. Pa.

Feb. 24, 2016). Acknowledging the general principle that

failure to state a claim under the Federal Rules of Civil

6

Procedure is not tantamount to legal frivolity pursuant to §

1915(g), the District Court found that “[t]he fatal defect in this

complaint is not merely that it fails to state a claim under

Bivens, but that it describes neither conduct nor injury that

implicates the Constitution or other federal law.” Id. It insisted

that service of process would thereby represent a waste of scarce

judicial resources.

The stay of this appeal was lifted on April 5, 2016.

Subsequently, the motion to proceed IFP was referred to a

merits panel, and the Court indicated that it would benefit from

the appointment of counsel to address the following issues:

(1) whether the dismissal in [Heath II] qualifies as

a strike for purposes of 28 U.S.C. § 1915(g);

compare McLean v. United States, 566 F.3d 391,

396 (4th Cir. 2009) (cited in Ball v. Famiglio, 726

F.3d 448, 460 n.17 (3d Cir. 2013)), with Orr v.

Clements, 688 F.3d 463, 465 (8th Cir. 2012); (2)

whether the dismissal in [Doe] qualifies as a

strike; see Ball, 726 F.3d at 460-63; (3) if these

dismissals qualify as strikes, whether their timing

precludes Appellant from proceeding in forma

pauperis in this appeal; (4) if this Court decides

that Appellant has three strikes, whether he is

under imminent danger of serious physical injury

for purposes of § 1915(g); and (5) if this Court

decides that Appellant qualifies for in forma

pauperis status on appeal, whether the District

Court’s decision on appeal should be vacated.

7

(A18-A19.)2 Millhouse did not object, and Stephen A. Fogdall,

Esq., and Emily J. Hanlon, Esq. were appointed as his pro bono

counsel.3

II.

The District Court had subject matter jurisdiction

pursuant to 28 U.S.C. §§ 1331 and 1343. We possess appellate

jurisdiction under 28 U.S.C. § 1291. We exercise plenary

review with respect to the proper interpretation of the PLRA and

its three strikes rule. See, e.g., Ball, 726 F.3d at 455 n.11.

III.

28 U.S.C. § 1915(g) limits a prisoner’s ability to obtain

IFP status:

In no event shall a prisoner bring a civil action or

appeal a judgment in a civil action or proceeding

under this section if the prisoner has, on 3 or more

prior occasions, while incarcerated or detained in

any facility, brought an action or appeal in a court

of the United States that was dismissed on the

grounds that it is frivolous, malicious, or fails to

state a claim upon which relief may be granted,

unless the prisoner is under imminent danger of

2

Because we determine that Millhouse does not have

three strikes, we need not (and do not) decide “whether he is

under imminent danger of serious physical injury for purposes

of § 1915(g).”

3

We express our thanks to Mr. Fogdall and Ms. Hanlon

for their excellent work in this matter.

8

serious physical injury.

In Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013), we set forth

our general approach for deciding what constitutes a strike under

this provision of the PLRA:

Thus, we adopt the following rule: 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), 1915(e)(2)(B)(ii), or Rule

12(b)(6) of the Federal Rules of Civil Procedure.

Id. at 126.

“The ‘three strikes’ provision was ‘designed to filter out

the bad claims and facilitate consideration of the good.’”

Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015) (quoting

Jones v. Bock, 549 U.S. 199, 204 (2007)); see also, e.g., Abdul-

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

(noting that Congress enacted PLRA to limit filing of frivolous

and vexatious prisoner lawsuits). Partially abrogating our ruling

in Ball v. Famiglio, 726 F.3d 448 (3d Cir. 2013) (in which we

held, inter alia, that a strike does not accrue until the dismissal

has been affirmed on appeal or the opportunity to appeal has

otherwise passed, id. at 464-65), the Supreme Court concluded

that the refusal to treat a prior dismissal as a strike because of a

pending appeal (at least where the prisoner is not seeking to

appeal from a “third-strike trial-court dismissal”) would result in

“a leaky filter,” Coleman, 135 S. Ct. at 1764-65. While the

9

statutory scheme thereby seeks to reduce the likelihood of

frivolous lawsuits (while improving the quality of the remaining

prisoner actions), it would run counter to the PLRA’s goals if

our approach “will inevitably lead to more, and perhaps

unnecessary, litigation on whether or not a particular dismissal

constitutes a strike.” Byrd, 715 F.3d at 126. Accordingly, the

Byrd Court adopted a bright-line rule for this determination. Id.

We did so while recognizing that, “[i]f courts are permitted to

consider the nature of the dismissal and determine whether the

dismissal fits within the language of § 1915(g), then there is less

likelihood that a dismissal intended as a strike will slip through

the cracks created by a categorical rule that bars courts from

undertaking such an examination.” Id.

A. Strikes and the Notice of Appeal

It is undisputed that, while Millhouse filed his notice of

appeal on May 19, 2015 (and his IFP motion on June 15, 2015),

his second and third putative strikes—Heath II and Doe—

accrued on October 27, 2015 and February 24, 2016. On

November 6, 2015, this appeal was stayed pending our

disposition in Sage. Sage was decided on February 11, 2016,

and this Court lifted its stay on April 5, 2016. Millhouse’s

motion for leave to proceed with his appeal IFP still remains

pending. According to Appellees and Judge Ambro’s partial

dissent and concurrence, these dismissals count as strikes for

purposes of this appeal because they both accrued before this

Court had granted the IFP motion. Unlike Appellees, Judge

Ambro believes that we should then equitably toll these two

strikes, and he accordingly would grant Millhouse IFP status.

However, we must look to the date the notice of appeal is

filed—and not the date that we grant a prisoner’s motion to

proceed IFP—in assessing whether a particular dismissal counts

10

as a strike. Strikes that accrue before the filing of the notice of

appeal count as strikes—while strikes that accrue after the notice

of appeal is filed do not. Because the second and third putative

strikes accrued after Millhouse filed his notice of appeal, they

could not count as strikes for purposes of this appeal.

We begin, as we must, with the statutory language. See,

e.g., Abdul-Akbar, 239 F.3d at 313 (“‘Our task is to give effect

to the will of Congress, and where its will has been expressed in

reasonably plain terms, that language must ordinarily be

regarded as conclusive.’” (quoting Negonsott v. Samuels, 507

U.S. 99, 104 (1993))). Under the plain language of the PLRA, it

is the filing of the notice of appeal that “triggers” the three

strikes rule. Specifically, § 1915(g) provides that a prisoner

shall in no event “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,” 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. This

language indicates that a prisoner like Millhouse cannot “appeal

a judgment in a civil action or proceeding” under the IFP statute

if he or she has accrued strikes “on 3 or more prior occasions.”

In other words, these strikes must have accrued “prior” to the

“appeal [of] a judgment in a civil action or proceeding.” A

prisoner (or any other litigant) “appeal[s] a judgment in a civil

action or proceeding” by filing a notice of appeal. Federal Rule

of Appellate Procedure 3(a)(1) specifies that “[a]n appeal

permitted by law as of right from a district court to a court of

appeals may be taken only by filing a notice of appeal with the

district clerk within the time allowed by Rule 4.” In general,

“the notice of appeal required by Rule 3 must be filed with the

district clerk within 30 days after entry of the judgment or order

appealed from” (or “within 60 days” if one of the parties is the

11

United States, a United States agency, a United States officer or

employee sued in an official capacity, or a current or former

United States officer or employee sued in an individual capacity

for an act or omission occurring in connection with duties

performed on behalf of the United States). Fed. R. App. P.

4(a)(1); see also, e.g., Bowles v. Russell, 551 U.S. 205, 214

(2007) (“[T]he timely filing of a notice of appeal in a civil case

is a jurisdictional requirement.”). As Millhouse aptly explains,

“[i]t follows that a prisoner may not ‘appeal a judgment in a

civil action or proceeding’ in forma pauperis if the prisoner has

accrued 3 strikes prior to filing the notice of appeal.”4

(Appellant’s Reply Brief at 4.)

None of the cases cited by Appellees (or the partial

dissent and concurrence) actually considered the meaning of §

1915(g) and its “appeal a judgment in a civil action or

proceeding” language. Accordingly, they did not resolve the

4

In fact, we have held that a notice of appeal cannot be

rejected merely because the filing fee has not been paid. See,

e.g., Lee v. Superintendent Houtzdale SCI, 798 F.3d 159, 164-

65 (3d Cir. 2015). If a notice of appeal may not be rejected on

the basis that the litigant failed to include the requisite fee, the

subsequent grant of an IFP application likewise should not affect

the timing of an “appeal [of] a judgment in a civil action or

proceeding.” After all, the whole point of IFP status is to allow

indigent litigants to appeal “without prepayment of fees.” 28

U.S.C. § 1915(a); see also, e.g., Ball, 726 F.3d at 452 n.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).”).

12

specific question of whether we should look to the date of filing

of the notice of appeal or the date that we rule on a prisoner’s

IFP motion in assessing whether a dismissal counts as a strike.

28 U.S.C. § 1915(a)(1) provides that “any court of the United

States may authorize the commencement, prosecution or defense

of any suit, action or proceeding, civil or criminal, or appeal

therein, without prepayment of fees or security therefor, by a

person who submits an affidavit that includes a statement of all

assets such prisoner possesses that the person is unable to pay

such fees or give security therefor.” Relying on this provision,

we have indicated that, when a litigant submits a complaint with

an IFP motion, the complaint is duly filed after the motion to

proceed IFP is granted. Urrutia v. Harrisburg Cnty. Police

Dep’t, 91 F.3d 451, 458 & nn.12-13 (3d Cir. 1996). “Thus,

submitting an in forma pauperis complaint to the clerk does not

result in commencement of the litigation.” Id. at 458 n.13; see

also Gibbs v. Ryan, 160 F.3d 160, 162 (3d Cir. 1998) (“His

complaint was filed, and his action was ‘brought’ when his

motion to proceed in forma pauperis was granted.” (citing

Urrutia, 91 F.3d at 458; Oatess v. Sobolevitch, 914 F.2d 428,

430 n.1 (3d Cir. 1990))); Oatess, 914 F.2d at 429 n.1 (“When a

complaint is accompanied by a motion to proceed in forma

pauperis, rather than by payment of a filing fee, the complaint is

not docketed, and it is therefore not filed, until the motion has

been granted.”). However, “[w]e determined [in Urrutia] that,

even though the limitations period ran out, ‘[t]his was not [his]

fault[: h]e submitted his in forma pauperis complaint a full two

months before the statute of limitations was due to expire.’”

(Partial Dissent & Concurrence at 8 (quoting Urrutia, 91 F.3d at

458).) “Because of ‘the delay in making a § 1915(d)

determination . . . we [held] that, once a plaintiff submits an in

13

forma pauperis complaint,’ the statute of limitations would be

equitably tolled until the court grants the IFP application.”5 (Id.

(quoting Urrutia, 91 F.3d at 459).)

In contrast, this Court has, at least implicitly, indicated

that we must look to the filing of the notice of appeal as the

proverbial trigger for deciding whether dismissals count as

strikes. Tallying the plaintiff’s strikes, we observed in Ball that,

out of the ten purported strikes, three of the dismissals did not

count as strikes because they were not final “when Ball filed the

appeals before us now.”6 Ball, 726 F.3d at 465. “Three others

do not count as strikes for present purposes because the actions

were dismissed after these appeals were filed.” Id. at 466

(footnote omitted). This Court had not yet ruled on Ball’s IFP

motion; in fact, the Ball Court had to decide whether or not to

grant her motion. See, e.g., id. at 451. We thereby clearly

5

Similarly, the issue in Oatess was whether a district

court could dismiss a plaintiff’s complaint sua sponte for failure

to state a claim after the plaintiff was granted IFP status but

before service of process occurred. Oatess, 914 F.2d at 429.

Addressing an appeal where the IFP motion was actually

granted on the same day it was filed, Gibbs considered “the

narrow question” of whether § 1915(g) requires the district court

to revoke IFP status granted before the enactment of the PLRA.

Gibbs, 160 F.3d at 162.

6

We again note that the Supreme Court abrogated Ball

in part, generally holding that “a prior dismissal . . . counts as a

strike even if the dismissal is the subject of an appeal.”

Coleman, 135 S. Ct. at 1763. But see id. at 1764-65 (refusing to

resolve question of whether plaintiff would have three strikes if

he or she were attempting to appeal from dismissal of third

complaint).

14

meant that the discounted dismissals occurred after Ball filed his

notices of appeal. While we did not specifically discuss the

issue now before us (and went on to conclude that Ball had three

strikes at the time she commenced her appeals, id. at 466), Ball’s

tallying of strikes clearly weighs in Millhouse’s favor.

According to Appellees and Judge Ambro’s partial

dissent and concurrence, the term “bring” under § 1915(g) refers

to the time when an IFP motion is granted. However, § 1915(g)

distinguishes between “bring[ing] a civil action,” on the one

hand, and “appeal[ing] a judgment in a civil action or

proceeding,” on the other hand. “The word ‘appeal’ does occur

as the object of the verb ‘brought’ later in Section 1915(g), in

reference to a prisoner having ‘brought an action or appeal’ on 3

prior occasions and accrued strikes as a result” (Appellant’s

Reply Brief at 4 n.3). In O’Neal v. Price, 531 F.3d 1146 (9th

Cir. 2008), the Ninth Circuit (in a majority opinion) rejected the

theory that the prisoner’s prior actions were not “brought” under

this subsequent language (and thereby could not constitute

strikes under § 1915(g)) “because he merely filed applications

for in forma pauperis status which were subsequently denied,”

id. at 1151. Significantly, it concluded that “a plaintiff has

‘brought’ an action for the purposes of § 1915(g) when he

submits a complaint and request to proceed in forma pauperis to

the court.” Id. at 1152. Furthermore, this Court (sitting en

banc) recognized that “the word ‘bring’ in this context plainly

refers to the time when the civil action is initiated.” Abdul-

Akbar, 239 F.3d at 313 (citing Gibbs, 160 F.3d at 162). The

courts thereby must consider if the prisoner is under imminent

danger at the time the complaint is filed (as opposed to the time

of the alleged incident). Id. at 313-15. Likewise, the Fifth

Circuit explained that “we must determine if danger exists at the

time the plaintiff seeks to file his complaint or notice of appeal

15

IFP.” Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998) (per

curiam) (emphasis in original).

We believe that our approach is consistent with both

legislative intent and basic principles of fairness. Congress

enacted the PLRA “to limit the filing of frivolous and vexatious

prisoner lawsuits,” Abdul-Akbar, 239 F.3d at 314, and the

Supreme Court has indicated that § 1915(g) did not create a

“leaky filter,” Coleman, 135 S. Ct. at 1764. Nevertheless, we

find nothing to suggest that Congress designed the statutory

scheme to penalize prisoners for “the delay inherent” in the

process of disposing of their IFP motions, Urrutia, 91 F.3d at

458 n.13. After all, the disposition of an IFP motion is often “a

time-consuming process” that is, in large part, outside of the

control of the pro se litigant. Id. At the very least, the Court

does need time to make an indigency determination and to

screen the prisoner’s filing history for strikes. In turn, IFP

motions should not be treated differently based on how quickly

this Court may dispose of them. “To hold otherwise would . . .

mean that similar in forma pauperis [motions] would be treated

differently on the basis of how quickly [the Court] acted on

them.” Id. at 459. In fact, the partial dissent and concurrence

acknowledges that it would be overly prejudicial to bar

Millhouse access to this Court given the present circumstances.

“Millhouse filed a notice of appeal and an IFP request in May

and June 2015, respectively; the Clerk’s Office took no action

on the IFP request until it stayed the case five months later in

November 2015 (pending the resolution of Sage); and

[according to Judge Ambro] two strikes accrued during the

Court’s delay and mandated stay of the proceedings.” (Partial

Dissent & Concurrence at 8.) In other words, the purported

second and third strikes “only accrued for the purposes of this

16

appeal due to our Court’s delay.”7 (Id.)

Based on our ruling in Urrutia, the partial dissent and

concurrence proceeded to “equitably consider the date of

commencement for three-strikes purposes as June 15 (when

Millhouse filed his IFP request) due to our Court’s delay.” (Id.

at 9.) However, we question whether the equitable tolling

doctrine (or similar concepts) could apply in this context. This

appeal (unlike Urrutia) does not really implicate a statute of

limitations or some sort of time limit that may be “tolled.” It is

also, at the very least, questionable whether it is proper, on the

one hand, to interpret the PLRA so that strikes accrued after the

filing of the notice of appeal but before the Court grants the IFP

motion generally trigger the three strikes rule while, on the other

hand, concluding that these strikes do not “really count” based

on our own assessment of the specific circumstances of the

proceeding. (See Oral Argument Transcript at 39-40 (“It could

be an argument for equitable tolling. But equitable tolling,

under 1915, where Congress has stated that in no, in no case

should an appeal proceed without the court authorizing

commencement, that says to me that equitable tolling shouldn’t

apply in that situation . . . .) (Counsel for Appellees).) Instead,

we read the statutory scheme—given the statutory language,

7

In addition to the concerns of basic fairness articulated

above, there is a practical obstacle to Appellees’ position that we

should determine eligibility for IFP status on the date the Court

rules on a prisoner’s motion to proceed IFP. Appellees’ position

would render such motions extremely time-sensitive. That is,

when the Court decides to grant IFP status, we would need to

rule on the issue immediately. If there was any lapse between

the determination and the ruling, we would have to return to the

issue and verify that IFP status was still warranted.

17

existing case law, the purposes of the legislation, and basic

considerations of fairness—as requiring us to look to the date

the notice of appeal is filed in assessing whether a dismissal

counts as a strike. Strikes accrued after this date simply do not

count under § 1915(g).

Because the second and third putative strikes accrued

after Millhouse filed his notice of appeal, they could not count

as strikes for purposes of this appeal. Millhouse has only one

strike and is eligible for IFP status on appeal.

B. Heath II and Doe

Even if we were to count Doe and Heath II (which we do

not), Millhouse would still only have two strikes—Bledsoe and

Doe. Accordingly, he is still eligible for IFP status on appeal.

In Sage, we determined that Bledsoe (which accrued before the

filing of his notice of appeal) qualifies as a strike. Sage, 639 F.

App’x at 793-94. Because the District Court explicitly and

correctly concluded that the complaint revealed an immunity

defense on its face and dismissed with prejudice for failure to

state a claim upon which relief may be granted pursuant to §

1915(e)(2)(B)(ii), Doe also qualifies as a strike. However, we

adopt the Fourth Circuit’s approach in which a dismissal without

prejudice for failure to state a claim does not rise to the level of

a strike. Under this rule, Heath II thereby does not qualify as a

strike.

Under § 1915(e)(2)(B)(ii), the court shall dismiss the case

at any time if it determines that the action “fails to state a claim

on which relief may be granted.” In Ball, we held that a

dismissal based on immunity does not constitute a strike, unless

the district court “explicitly and correctly concludes that the

complaint reveals the immunity defense on its face and

18

dismisses [with prejudice] the unexhausted complaint under

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

dismissal is frivolousness.” Ball, 726 F.3d at 463 & n.20. Ball,

however, did not address a dismissal under § 1915(e)(2)(B)(ii).

We now apply Ball to a complaint dismissed based on immunity

under § 1915(e)(2)(B)(ii). As in Ball, such a dismissal is a

strike only if the dismissal is with prejudice and the “court

explicitly and correctly concludes that the complaint reveals the

immunity defense on its face.” Id. at 463. Millhouse asserts

that Doe “was not ‘correct,’ and that under a liberal pleading

standard he should have the opportunity to amend his complaint

to include non-immune defendants” (specifically the prison

officials who allegedly allowed inmates to access the Third

Circuit opinion on the law library’s computers). (Partial Dissent

& Concurrence at 7.) Purportedly, “you cannot ascertain from

the face of the dismissal whether the district court evaluated if

the pleading could be amended to state a claim against non-

immune defendants.” (Oral Argument Transcript at 20 (Counsel

for Appellant).) In Doe, the District Court “explicitly”

dismissed with prejudice Millhouse’s complaint for “‘fail[ure] to

state a claim’” pursuant to “a statutory provision or rule that is

limited solely to dismissals for [such a reason],” namely, §

1915(e)(2)(B)(ii). Byrd, 715 F.3d at 126. It did so because it

“explicitly and correctly conclud[ed] that the complaint reveals

the immunity defense on its face.” Ball, 726 F.3d at 463

(footnote omitted). The three unidentified Third Circuit judges

(the only persons to be named as defendants in the complaint)

were entitled to absolute judicial immunity from monetary

damages. The District Court further explained that Millhouse

failed to state a cognizable claim with respect to his additional

request for injunctive relief (i.e., a transfer out of the federal

prison system). According to the District Court, it would be

inequitable to grant him an opportunity to file an amended

19

complaint. Noting that a prisoner has no justifiable expectation

that he will be incarcerated in a particular prison, the District

Court went on to explain that “[t]he complaint clearly fails to

state a failure to protect claim.” Doe, 2016 WL 727619, at *3.

“Milhouse has not alleged any facts from which it could be

concluded that prison officials failed to protect him.” Id. In

fact, the District Court made it clear the complaint did not

merely fail to state a claim under Bivens; “it describes neither

conduct nor injury that implicates the Constitution or other

federal law” (and service of process would thereby constitute a

waste of increasingly scarce judicial resources). Id. at *4. “And

if Millhouse takes umbrage with the District Court’s decision

regarding his leave to amend, the appropriate path is to appeal

that decision directly (which he has not done).” (Partial Dissent

& Concurrence at 7.)

In McLean, the Fourth Circuit’s majority opinion

considered at some length the question of “whether a dismissal

without prejudice for failure to state a claim counts as a strike

under § 1915(g).” McLean, 566 F.3d at 394. It held that “it

does not.” Id. Appellees vigorously contest this holding, and,

for our part, we agree with Judge Ambro that most circuits have

indicated that such dismissals do qualify as strikes. Orr v.

Clements, 688 F.3d 463, 465-66 (8th Cir. 2002); Paul v.

Marberry, 658 F.3d 702, 704-06 (7th Cir. 2011); Smith v.

Veterans Admin., 636 F.3d 1306, 1313 (10th Cir. 2011);

O’Neal, 531 F.3d at 1154-55; Day v. Maynard, 200 F.3d 665,

667 (10th Cir. 1999) (per curiam); see also McLean, 566 F.3d at

402-10 (Shedd, J., concurring in part and dissenting in part).

Nevertheless, the Fourth Circuit persuasively disposed of this

contrary case law. It noted, for instance, that the Tenth Circuit

offered no analysis for its holding. McLean, 566 F.3d at 398

(addressing Day). In O’Neal, the Ninth Circuit (in addition to

20

rejecting the prisoner’s theory that his prior actions were not

“brought” by him because he merely filed IFP applications that

were subsequently denied) concluded that a dismissal without

prejudice may constitute a strike because there is nothing in the

plain language of § 1915(g) distinguishing between dismissals

with and dismissals without prejudice. O’Neal, 531 F.3d at

1154. The McLean approach, however, is based on the actual

language of the PLRA. “[It] does not read an additional

requirement into the statute that was not already implied by

Congress’ use of the familiar phrase ‘dismissed . . . [for]

fail[ure] to state a claim.’ An unqualified dismissal for failure to

state a claim is presumed to operate with prejudice; the addition

of the words ‘with prejudice’ to modify such a dismissal is

simply not necessary.” McLean, 566 F.3d at 398-99 (footnote

omitted); see also Grayson v. Mayview State Hosp., 293 F.3d

103, 110 (3d Cir. 2002) (noting that PLRA employs language

borrowed from Rule 12(b)(6)). The PLRA, although not “a

leaky filter,” Coleman, 135 S. Ct. at 1764, also does not use “a

meat-axe approach” to achieve its goal of stemming the flood of

frivolous prisoner litigation and conserving judicial resources,

McLean, 566 F.3d at 398.

Furthermore, this Court’s own ruling in Ball clearly

weighs in favor of McLean. Even Appellees acknowledge that

Ball “held that a dismissal based on the affirmative defense of

failure to exhaust may be a strike when the applicability of the

defense is clear from the face of the complaint and the dismissal

is with prejudice.” (Appellees’ Brief at 19-20.) The Ball Court

adopted the same “with prejudice” requirement with respect to

dismissals based on the defendant’s immunity. See Ball, 726

F.3d at 463 n.20. There would appear to be no real difference

between a dismissal for failure to state a claim without prejudice

and a dismissal of an unexhausted complaint without prejudice

21

(or a dismissal without prejudice on immunity grounds). In the

end, we thereby adopted (and expanded on) the Fourth Circuit’s

line of reasoning:

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, 566 F.3d at

396]. 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. . . .”

22

(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] 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).

Id. at 460 n.17.

Appellees argue that Heath II constitutes a strike under

McLean because the District Court expressly determined that

the complaint failed to state a claim upon which relief could be

granted, which then acted as an adjudication on the merits when

it denied leave to file an amended pleading. (See also Partial

Dissent & Concurrence at 6 (concluding that Heath II is strike

because, by dismissing without leave to amend, it effectively

barred Millhouse from filing subsequent complaint with same

allegations).) However, the District Court’s own order

expressly dismissed the complaint without prejudice:

“Milhouse’s complaint is DISMISSED without prejudice for

failure to state a claim upon which relief may be granted

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).” Heath, 2015 WL

6501461, at *5. Even if the District Court may have

inadvertently added this “without prejudice” language, it is not

appropriate for us to treat a disposition including such

23

ambiguous (or even contradictory) language as a strike or to

undertake a detailed analysis to ascertain what the District Court

may have really meant to say. After all, we adopted in Byrd a

bright-line rule in deciding what constitutes a strike. Byrd, 715

F.3d at 126. While this might mean “that a dismissal intended

as a strike will slip through the cracks,” the Court will at least

limit the likelihood of “more, and perhaps unnecessary,

litigation on whether or not a particular dismissal constitutes a

strike.” Id. We also note that prisoners, who typically act pro

se, are entitled to take dismissals “at face value” and “should not

be required to speculate on the grounds the judge could or even

should have based the dismissal on.” Paul, 658 F.3d at 706.

C. The District Court’s IFP Ruling

Granting the motion to proceed IFP on appeal, we will

vacate the District Court’s denial of Millhouse’s IFP motion and

remand for further proceedings. Appellees concede that, should

we grant IFP status and reach the merits of the underlying

District Court decision, this decision should be vacated. With

the exception of Bledsoe, the cases cited by the District Court do

not constitute strikes under § 1915(g). See Sage, 639 F. App’x

at 793-95. Millhouse had only one strike when he filed his

complaint on August 22, 2014 (and when the District Court

denied his motion to proceed IFP on May 4, 2015).

IV.

We grant Millhouse’s motion to proceed IFP on appeal.

We will vacate the District Court’s order denying his IFP

motion and remand for further proceedings consistent with this

opinion.

24

Kareem Hassan Millhouse v. Lt. S.I.S. Susan V. Heath, et al.

No. 15-2278

_________________________________________________

AMBRO, Circuit Judge, dissenting in part and concurring in

the judgment

I concur with the result set by my colleagues, but I

take a different path in getting there. I do so because I

believe that the statutory language, and our comments on it,

are clear that an in forma pauperis action begins under 28

U.S.C. § 1915 when a court grants the IFP request and not

when the appeal is filed. Because we have not granted that

request of Millhouse, we must determine if he has accrued

two more strikes since his appeal. Because he has, he

normally would be barred from proceeding with IFP status in

this appeal, as he has three strikes that typically forestall

filing further claims absent paying full filing fees. However,

I believe our precedent in Urrutia v. Harrisburg County

Police Department, 91 F.3d 451 (3d Cir. 1996), controls this

case and allows us to equitably toll the two strikes that

Millhouse has accrued pending our decision as to his IFP

request. Thus, while I disagree with my colleagues’

interpretation of the Prisoner Litigation Reform Act

(“PLRA”) and their conclusion that Heath II does not count

as a strike, I agree that Millhouse only has one strike for the

purpose of this appeal and thus his case should be remanded.

DISCUSSION

A. An IFP Action Commences with the Grant of

IFP Status

Section 1915(g) provides

In no event shall a prisoner bring a civil

action or appeal a judgment in a civil action

or proceeding under this section if the

prisoner has, on 3 or more prior occasions,

while incarcerated or detained in any facility,

brought an action or appeal in a court of the

United States that was dismissed on the

grounds that it is frivolous, malicious, or fails

to state a claim upon which relief may be

granted, unless the prisoner is under

imminent danger of serious physical injury.

(emphases added). Millhouse filed his notice of appeal on

May 26, 2015 and his request for IFP status on June 15, 2015.

His subsequent strikes accrued after those dates when his

complaints were dismissed—October 27, 2015 and February

24, 2016. See Coleman v. Tollefson, 135 S. Ct. 1759 (2015)

(strike accrues at dismissal). So when did Millhouse “bring”

this appeal under the meaning of the PLRA? Was it May 26,

2015 when he filed it, or has it not yet begun because we have

not granted him IFP status? This consideration sets up how to

apply the three-strikes rule, as those strikes must constitute

“prior occasions . . . that [were] dismissed.” 28 U.S.C.

§ 1915(g) (emphasis added). If May 26, 2015 is the

beginning date, the two strikes he has accrued since then

cannot apply to bar him IFP status. On the other hand, if this

appeal has yet to begin because his request for IFP status is

pending, then those two strikes trigger the three-strikes rule.

The answer, I believe, lies in § 1915(a), which creates

the right to bring an IFP action. It provides that “any court of

the United States may authorize the commencement . . . of

any suit, action, or proceeding, . . . or appeal therein, without

any prepayment of fees,” brought by an indigent prisoner.

The “authorize the commencement” language suggests that an

IFP action is not “brought” under the PLRA simply by filing

2

a complaint or appeal. Indeed, we have explained that

because

[o]nly the court may authorize the

commencement of any suit without

prepayment of fees[,] . . . submitting an in

forma pauperis complaint to the clerk does

not result in commencement of the litigation .

. . [because] a determination of whether a

prisoner has exceeded the allowable number

of frivolous or other inadequate in forma

pauperis actions will have to be made before

the litigation may commence.

Urrutia, 91 F.3d at 458 n.13 (alterations and quotations

omitted). We have also indicated in a separate three-strikes

case that the prisoner’s “action was ‘brought’ when his

motion to proceed in forma pauperis was granted.” Gibbs v.

Ryan, 160 F.3d 160, 162 (3d Cir. 1998); see Oatess v.

Sobolevitch, 914 F.2d 428, 429 n.1 (3d Cir. 1990) (“When a

complaint is accompanied by a motion to proceed in forma

pauperis, rather than by payment of a filing fee, the complaint

is not docketed, and it is therefore not filed, until the motion

has been granted.”). The reasoning is that an IFP action

cannot possibly commence until a court both is able to make

an “indigency determination” and screen the applicant’s filing

history for three-strikes status. See Urrutia, 91 F.3d at 458

n.13; see also Roman v. Jeffes, 904 F.2d 192, 194-96 (3d Cir.

1990) (explaining that § 1915 functions as a screening

process for IFP applications). If the IFP applicant passes this

initial review as § 1915 requires, the request will be granted,

the court will “authorize the commencement” of the suit or

appeal, and the action or appeal then will be “brought.” To

me the statute is clear as to this process.

3

My colleagues believe that an IFP action on appeal

begins on filing the notice of appeal. But they hang their hat

on § 1915(g), which does not exist in a vacuum. Rather,

§ 1915(a) is the statute’s subsection that establishes the right

of an indigent prisoner to avail himself in federal court

without paying the requisite filing fee. It details the process

of how such a prisoner can claim that right. 28 U.S.C.

§ 1915(a)(1) and (2) (a prisoner seeking IFP status shall

submit “an affidavit that includes a statement of all assets

such prisoner possesses . . . [and] the nature of the action,

defense or appeal and affiant’s belief that the person is

entitled to redress,” as well as “a certified copy of the trust

fund account statement . . . for the prisoner for the 6-month

period immediately preceding the filing of the complaint or

notice of appeal . . . .”). Section 1915(g), on the other hand,

merely establishes the three-strikes rule, which is nothing

more than a limitation on who can claim that right. There is

no mention in the statute, and the majority points to none, that

the three-strikes rule was intended to eclipse the procedural

mandate of § 1915(a).

Subsection 1915(g) serves only to exclude serial filers

from IFP-status eligibility, a determination that a court will

make and, if favorable to the petitioner, then “authorize” the

“commencement” of the IFP action under § 1915(a) if the

applicant is not a three-strikes offender. To hold otherwise

makes § 1915(g) toothless: its purpose is to screen ineligible

IFP applicants. Yet the majority would have a potentially

three-strikes-offending prisoner be able to initiate an action

before that screening process was complete simply by filing a

complaint or a notice of appeal. That is inconsistent with

both the purpose of § 1915(g) and Congress’s established

process in claiming the right under § 1915(a). Per the PLRA,

4

an IFP action begins when a court determines that an indigent

prisoner seeking IFP-status is eligible to do so.1

B. Millhouse Has Three Strikes

Thus, given that Millhouse’s appeal has yet to

commence for IFP purposes because there has been no

decision by this Court to grant him IFP status, we next must

decide if he has accrued two additional strikes during the

pendency of his IFP application.

The first questionable strike relates to the dismissal

without prejudice of Millhouse’s complaint in Heath II.

Millhouse claimed there that prison officials had violated his

Eighth Amendment rights by housing him with a dangerous

cellmate and failing to protect him. Because Millhouse only

alleged fear of possible future assault, and because that could

not be the basis for relief, the District Court dismissed his

complaint without prejudice for failure to state a claim under

the PLRA and also dismissed his claims without leave to

amend (as amendment would be futile).

Millhouse argues, and the majority holds, that

dismissal without prejudice cannot count as a strike under the

PLRA. Although most Circuits hold that there is no reason

why a dismissal without prejudice should not count as a strike

1

The Majority also relies on the Federal Rules of

Appellate Procedure for its misreading of the PLRA. That

reasoning is odd, given that the PLRA (in both § 1915(a) and

(g)) does not distinguish between when an IFP action can be

brought in district court or appealed. They are treated the

same, and thus to base a holding on such a reading is out of

place. Moreover, the statute, not the Federal Rules of

Appellate Procedure, controls.

5

because § 1915 makes no distinction between dismissals with

or without prejudice—see, e.g., Paul v. Marberry, 658 F.3d

702, 705 (7th Cir. 2011); Orr v. Clements, 688 F.3d 463, 465

(8th Cir. 2012); O’Neal v. Price, 531 F.3d 1146, 1154 (9th

Cir. 2008); Smith v. Veterans Admin., 636 F.3d 1306, 1313

(10th Cir. 2011); see also Patton v. Jefferson Corr. Ctr., 136

F.3d 458, 463-64 (5th Cir. 1998); contra McLean v. United

States, 566 F.3d 391 (4th Cir. 2009) (dismissal without

prejudice cannot count as a strike)—we need not decide that

issue now.

The Heath II dismissal without prejudice was also

without leave to amend. If dismissal worthy of strike-status

under the PLRA must “prejudice[] [the prisoner from] the

filing of a subsequent complaint with the same allegations,”

McLean, 566 F.3d at 396, isn’t dismissal without leave to

amend the functional equivalent of dismissal with prejudice?

Millhouse has no further recourse. Thus, although any

dismissal under § 1915(e)(2)(B) “is not a dismissal on the

merits,” here it has “res judicata effect . . . for future in forma

pauperis petitions.” Denton v. Hernandez, 504 U.S. 25, 34

(1992).2 Put more simply, the Heath II dismissal effectively

barred Millhouse from filing a “subsequent complaint with

the same allegations,” and it is a strike even under the

majority’s adoption of McLean’s reasoning.

The next questionable strike arises from the dismissal

of Millhouse’s complaint in Doe, in which he filed an action

against three unnamed Third Circuit judges for stating in an

opinion that Millhouse had confessed to committing a crime

and/or cooperated with the Government, and this public

2

Denton involved the application of former § 1915(d)

of the PLRA, which was amended by Congress and is now

currently § 1915(e)(2)(B).

6

exposure threatened his safety in prison. The District Court

dismissed with prejudice the complaint for failure to state a

claim under the PLRA because the judges were entitled to

absolute immunity in the exercise of their official duties. See

§ 1915(e)(2)(B)(ii). It also determined that Millhouse’s

additional claim for injunctive relief (that he not be housed in

the particular prison he was placed) failed to state a claim

under the PLRA and dismissed that claim with prejudice. It

then denied Millhouse leave to amend his complaint because

that was futile.

Millhouse argues that Doe was not “correct,” and that

under a liberal pleading standard he should have the

opportunity to amend his complaint to include non-immune

defendants. He asserts he would have added the prison

officials who allegedly allowed other inmates to access the

relevant Third Circuit opinion on the computers in the

prison’s law library.

This argument goes nowhere. Although immunity is

typically an affirmative defense that should be asserted in an

answer, dismissal is nonetheless warranted in the PLRA

context if the immunity defense is clear on the face of the

complaint. Ball v. Famiglio, 726 F.3d 448, 463 (3d Cir.

2013). Here the District Court determined from the face of

the complaint that the only named defendants were judicial

officers sued in their official capacity who are entitled to

absolute immunity. See Stump v. Sparkman, 435 U.S. 349,

355-56 (1978); Brandon E. ex rel. Listenbee v. Reynolds, 201

F.3d 194, 200 (3d Cir. 2000). And if Millhouse takes

umbrage with the District Court’s decision regarding his

leave to amend, the appropriate path is to appeal that decision

directly (which he has not done). Doe thus constitutes a

strike.

7

Accordingly, Heath II and Doe, in combination with

Bledsoe (which we held to be a strike in Sage), are three

qualifying strikes against Millhouse.

C. Equitable Tolling of Millhouse’s Strikes

Although Millhouse has three strikes against him, it is

overly prejudicial to bar him access to the Court given the

particular facts of this appeal. While the action has not yet

begun because we have not granted Millhouse’s IFP

application, we should consider the date he filed the appeal

(or at least the request for IFP status). The decision to grant

or deny an IFP request is made at a court’s convenience, and

thus substantial delay might ensue.

That is what happened here. Millhouse filed a notice

of appeal and an IFP request in May and June 2015,

respectively; the Clerk’s Office took no action on the IFP

request until it stayed the case five months later in November

2015 (pending the resolution of Sage); and two strikes

accrued during the Court’s delay and mandated stay of the

proceedings. That is, the latter two strikes only accrued for

the purposes of this appeal due to our Court’s delay.

In Urrutia a prisoner filed his IFP request and

complaint, no action was taken by the court, and then he

sought to amend his complaint to add defendants even though

by that time the statute of limitations had run. 91 F.3d 451.

We determined that, even though the limitations period ran

out, “[t]his was not [his] fault[: h]e submitted his in forma

pauperis complaint a full two months before the statute of

limitations was due to expire.” Id. at 458. Because of “the

delay in making a § 1915(d) determination . . . we [held] that,

once a plaintiff submits an in forma pauperis complaint,” the

statute of limitations would be equitably tolled until the court

grants the IFP application. Id. at 459. Thus Urrutia stands

for the principle that, for the purposes of IFP actions, the date

8

they commence can be tolled when the applicant would

otherwise be prejudiced.

Other Circuits have taken this approach. See, e.g.,

Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010) (in an

IFP case regarding overdue service of process, the Court held

that “an in forma pauperis plaintiff should not be penalized

for a delay caused by the court’s consideration of his

complaint. That delay is solely within the control of the

district court.” (quotations omitted)); Donald v. Cook Cnty.

Sheriff’s Dep’t, 95 F.3d 548, 557 n.5 (7th Cir. 1996) (same);

Johnson v. U.S. Postal Serv., 861 F.2d 1475, 1485 (10th Cir.

1988) (in a non-prisoner IFP case, holding the “delay

encountered while the district court determines a plaintiff’s

financial eligibility under § 1915, or prepares a statement

denying plaintiff’s in forma pauperis motion, could consume

the entire limitations period”).

The same outcome should occur here. Had our Court

made a prompt (at least within five months) ruling on

Millhouse’s IFP request or become aware more quickly of the

substantial overlap between this case and Sage, the question

of whether these later strikes apply would not be an issue.

Accordingly, we should take the Urrutia approach, equitably

consider the date of commencement for three-strikes purposes

as June 15 (when Millhouse filed his IFP request) due to our

Court’s delay, and rule that the strikes in Heath II and Doe do

not apply to that request because they did not accrue prior to

Millhouse making it.

* * * * *

In summary, we should vacate the District Court’s

dismissal of Millhouse’s complaint under § 1915(g). As we

determined in Sage, the cases that the Court relied on to

trigger the three-strikes rule are not actual strikes (with the

exception of one, Bledsoe). Although I believe Millhouse

9

now has three strikes moving forward, for the reasons noted

above I concur with the judgment of the majority.

10