Joseph Brown v. Sage

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

Nos. 17-1222, 17-1527, and 17-1714

_________________

JOSEPH A. BROWN,

Appellant

v.

DR. SAGE, (PSYCH DEPT.);

DR. EIGENBRODE, (PSYCH DEPT.);

DR. SHOUEY, (PSYCH DEPT.)

Appellees in No. 17-1222

JOSEPH A. BROWN,

Appellant

v.

C.O. KEMMERER;

UNITED STATES; B.R. PEALER;

T. CRAWFORD; C.O. J. YOUNG;

C.O. J. TREIBLY; C.O. J. HARDY;

Lt. R. MILLER; C.O. D. HERR;

C.O. A. CRAVELING; C.O. J. FINCK;

C.O. R. WICKHAM; Lt. J. SHERMAN; Lt. DOUH;

Lt. J. SEEBA; Lt. R. JOHNSONL Lt. P. CARRASQUITTO;

P.A. S. DEES; P.A. L. POTTER; P.A. BRENNAMAN;

P.A. H. MIOSI; J. CARPENTER; J. RUSSO

Appellees in

No. 17-1527

JOSEPH A. BROWN,

Appellant

v.

SARAH DEES, PHYSICIAN ASSISTANT, USP

Appellee in No. 17-1714

_________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Nos. 1:16-cv-02477, 1:14-cv-01520, and 1:17-cv-

00025)

District Judge: Hon. Sylvia H. Rambo

_________________

Argued June 14, 2018

2

Before: SMITH, Chief Judge, CHAGARES, FUENTES,

Circuit Judges

(Filed: September 7, 2018)

Judah Bellin [Argued]

University of Pennsylvania

School of Law

3400 Chestnut Street

Philadelphia, PA 19104

Julia Chapman

Michael S. Doluisio

Ellen L. Mossman

Dechert LLP

Cira Centre

2929 Arch Street, 18th Floor

Philadelphia, PA 19104

Attorneys for Appellant

Michael J. Butler [Argued]

Office of the United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Attorney for Appellees in No. 17-1527

_________________

OPINION OF THE COURT

_________________

3

FUENTES, Circuit Judge.

Petitioner Joseph Brown filed three appeals challenging

the District Court’s denials of his motions to proceed in forma

pauperis (“IFP”). He then moved to proceed IFP on appeal,

and we consolidated his cases for our review. Under the Prison

Litigation Reform Act (“Act”), a federal prisoner may proceed

IFP and file a case without prepaying the requisite fees if the

prisoner meets certain requirements, including filing an

affidavit that demonstrates that he cannot afford the fees. 1

However, under 28 U.S.C. § 1915(g), the Act’s so-called

“three strikes rule,” a prisoner cannot proceed IFP if he has “on

3 or more prior occasions, while incarcerated or detained in any

facility, brought an action . . . that was dismissed on the

grounds that it is frivolous, malicious, or fails to state a claim

upon which relief may be granted.” 2

Brown has previously filed three cases in federal district

courts in California that can potentially be counted as strikes

under § 1915(g). Because we conclude that we must use our

precedent to evaluate whether prior cases are strikes, rather

than that of the Circuit from which the potential strikes

emanated, we conclude that Brown has not previously accrued

three strikes. Accordingly, we will grant his motions to

proceed IFP. We will also reverse the District Court’s denials

of Brown’s motions and remand the cases for further

proceedings.

1

28 U.S.C. § 1915(a).

2

Id. at § 1915(g).

4

Brown is a federal prisoner who filed three separate Bivens

actions alleging that his Fifth and Eighth Amendment rights had

been violated by prison employees.

First, on August 4, 2014, Brown filed his complaint in

Brown v. Kemmerer, 3 in which he alleged that various prison

officials had physically injured him by placing him in

restraints. On the same day, Brown also filed a motion to

proceed IFP. He indicated on his IFP application that he had

not previously accrued three strikes. The District Court

construed Brown’s motion as a “motion to proceed without full

prepayment of fees and costs” and granted it.

On December 15, 2016, while Kemmerer was

proceeding, Brown filed his complaint in Brown v. Sage, 4 in

which he claimed that he was physically injured because prison

employees, including his psychologists, were deliberately

indifferent to his serious mental health issues. As in

Kemmerer, on the day he filed his complaint, Brown also filed

a motion in Sage to proceed without prepayment of fees or

costs. The very next day, however, Brown filed a correction to

his motion, explaining that after he filed it, he received mail

informing him that he had accrued three strikes. Accordingly,

he also explained that he would invoke § 1915(g)’s “imminent

danger” exception to the three strike rule because of his “very

likely risk of suffering another traumatic incident as a result of

suffering from a chronic condition of post[-]traumatic stress

disorder.” 5 The District Court then directed Brown to either

pay the filing fees or file a motion to proceed IFP, so Brown

filed such motion.

3

D.C. No. 1:14-cv-01520.

4

D.C. No. 1:16-cv-02477.

5

Id. 126.

5

On January 3, 2017, the District Court filed a

memorandum opinion in Sage denying Brown’s motion to

proceed IFP because he had previously accrued three strikes.

Specifically, the District Court concluded that Brown’s strikes

emanated from three cases in federal district courts in

California:

1. Brown v. United States, No. 1:11-CV-01562-

MJS, 2013 WL 2421777 (E.D. Cal. June 3, 2013)

(“Brown I”);

2. Brown v. United States, No. 1:12-CV-00165-

AWI-GSA (E.D. Cal. Nov. 13, 2014) (“Brown

II”); and

3. Brown v. Profitt, No. 5:13-CV-02338-UA-RZ

(C.D. Cal. Mar. 7, 2014).

The District Court also concluded that “Brown’s

allegations d[id] not satisfy the threshold criterion of the

imminent danger exception.” 6 Accordingly, the District Court

denied Brown’s application to proceed IFP and dismissed his

complaint without prejudice. Brown appealed shortly

thereafter.

On the same day that the District Court filed its opinion

in Sage, January 3, 2017, it also filed a memorandum opinion

in Kemmerer vacating its previous decision to allow Brown to

proceed without full prepayment of fees and costs and denying

Brown’s IFP motion. The District Court explained that it had

recently come to its attention that Brown had accrued the

strikes enumerated above, and it concluded that it would

6

J.A. 11.

6

dismiss Brown’s complaint unless he paid the necessary fees.

Brown later appealed.

The day after the District Court filed its opinions in Sage

and Kemmerer, January 4, 2017, Brown filed Brown v. Dees, 7

his third Bivens action. In Dees, Brown claimed that prison

physician assistant Sarah Dees denied him treatment for

second-degree burns after he accidentally spilled hot water on

himself. He filed a motion to proceed IFP, in which he

indicated that he had accrued three strikes but claimed that he

satisfied § 1915(g)’s imminent danger exception because Dees

had “deliberately refused [him] medical treatment for serious

medical needs.” 8 On March 24, 2017, the District Court once

again filed an opinion explaining that Brown had previously

accumulated three strikes and that he did not meet the

imminent danger exception. It therefore denied Brown’s IFP

motion and dismissed the case. Brown appealed.

Brown filed motions to proceed IFP in his appeals in

Sage, Kemmerer and Dees. His motions were consolidated for

our review, and we appointed pro bono counsel to represent

Brown. 9

I.

7

D.C. No. 1:17-cv-00025

8

J.A. 143.

9

The District Court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291. “We exercise

plenary review with respect to the proper interpretation of the

[Act] and its three strikes rule.” Millhouse v. Heath, 866 F.3d

152, 156 (3d Cir. 2017) (citation omitted).

7

To evaluate a petitioner’s motion to proceed IFP on

appeal, we generally follow a two-step process. First, we look

to § 1915(a) of the Act and “determine[] whether the

[petitioner] is financially eligible to proceed without

prepayment of fees.”10 Second, we analyze whether the appeal

is frivolous. 11 In deciding whether to grant a petitioner’s IFP

motion, we must also consider § 1915(g) of the Act—the three

strikes rule. Specifically, § 1915(g) provides:

In no event shall a prisoner bring a civil action or

appeal a judgment in a civil action or proceeding

[in forma pauperis] 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. 12

In this case, because the parties do not dispute that

Brown is financially eligible to proceed IFP and because his

appeals are not frivolous, our decision on Brown’s IFP motions

will turn on whether he has previously accrued three strikes.

As the District Court correctly noted, there are three cases that

10

Urrutia v. Harrisburg Cty. Police Dep’t, 91 F.3d 451, 455

n.4 (3d Cir. 1996).

11

Id.; Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990);

28 U.S.C. § 1915(e).

12

28 U.S.C. § 1915(g).

8

we could potentially conclude constitute strikes under §

1915(g): Brown I, Brown II, and Profitt. 13

Because all three of Brown’s prior cases were filed in

the Eastern and Central Districts of California, we must begin

our analysis by deciding whether to use our precedent or the

Ninth Circuit’s to determine whether the dismissals in Brown

I, Brown II, and Profitt qualify as strikes. This determination

is significant because, as will be discussed below, the outcome

of Brown’s IFP motions turns on which Circuit’s law applies.

Although we have not previously addressed this issue,

we now conclude that courts in our Circuit should use our

precedent to evaluate whether prior cases qualify as strikes

under § 1915(g), regardless of the court from which they

originated. As we have often explained, panels of our Court

are bound by the precedent of prior panels, 14 as are the district

courts in our Circuit. 15 We see no reason to depart from this

13

It is worth noting that neither party argues that there are cases

aside from the three discussed by the District Court that could

also be considered strikes. We, too, are unaware of any other

cases that should be analyzed.

14

See, e.g., Hassen v. Gov’t of Virgin Islands, 861 F.3d 108,

114 n.5 (3d Cir. 2017) (“[A] panel of this court is bound to

follow the holdings of published opinions of prior panels of

this court.” (quoting Nationwide Ins. v. Patterson, 953 F.2d 44,

26 (3d Cir. 1991))); U.S. v. Franz, 772 F.3d 134, 144 n.8 (3d

Cir. 2014) (“[S]itting as a panel of this Court, we cannot

overrule prior precedent.”).

15

See, e.g., Valspar Corp. v. E.I. Du Pont Nemours and Co.,

873 F.3d 185, 203 (3d Cir. 2017) (explaining that the District

Court was bound by Third Circuit precedent).

9

general rule in this situation, nor have the parties provided us

with one. 16 Additionally, we have not found any other Circuit

that has declined to follow its own precedent when considering

potential strikes from another Circuit. 17 In fact, we believe that

choosing to follow our own precedent, no matter where the

potential strike occurred, promotes uniformity and efficiency

within our Circuit. Specifically, it ensures that petitioners in

identical circumstances are treated identically with respect to

their motions to proceed IFP regardless of where they have

filed past cases, and it obviates the need for us to ascertain what

constitutes a strike in every other Circuit.

We recognize that using our own precedent to

determine whether a prior dismissal qualifies as a strike may at

times cause us to conclude that certain dismissals are not

strikes, even if they were intended as strikes by other courts.

However, although not ideal, this eventuality is not significant

16

Instead, the parties seemed to agree at oral argument that we

should apply our own law in this case. Prior to oral argument,

we specifically asked the parties to be prepared to discuss

which Circuit’s law should be applied. Ultimately, however,

neither party argued that we should look to the Ninth Circuit’s

law.

17

Although they have not explicitly addressed the issue, other

Circuits have applied their own law when dealing with strikes

from other courts. See, e.g., Hafed v. Fed. Bureau of Prisons,

635 F.3d 1172, 1177-80 (10th Cir. 2011) (using Tenth Circuit

precedent to determine whether cases from courts in the

Seventh Circuit were strikes); Thompson v. Drug Enforcement

Admin., 492 F.3d 428, 431-40 (D.C. Cir. 2007) (considering

cases from courts in the Eighth and Eleventh Circuits without

discussing the precedents of those Circuits).

10

enough to convince us to abandon the long-standing principle

that we are bound to follow the precedent of our Court.

II.

Having established that we will follow our case law to

determine strikes under § 1915(g), we now turn to determining

whether Brown has accrued three strikes. To begin, as

Brown’s counsel has conceded, we conclude that Brown I and

Brown II constitute strikes. 18 In Byrd v. Shannon, we

addressed the standard we should use to evaluate whether a

dismissal of a filed complaint counts as a strike for IFP

purposes. 19 We explained 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.” 20

Since Byrd, we have also explained that a dismissal “does not

rise to the level of a strike” unless it is a dismissal with

prejudice. 21

Brown I and Brown II both meet all of our requirements

for strikes. In Brown I, Brown filed a complaint and a series

of amended complaints against employees at various prisons,

18

At oral argument, Brown’s counsel explicitly conceded that

Brown I and Brown II qualify as strikes. In addition, Brown

did not argue in his briefs that Brown I and Brown II are not

strikes. Instead, he focused his argument on whether Profitt is

a strike.

19

715 F.3d 117, 124 (3d Cir. 2013).

20

Id. at 126.

21

Millhouse, 866 F.3d at 161.

11

alleging that they had failed to diagnose and treat mental

injuries caused by his post-traumatic stress disorder. 22

Ultimately, the District Court in the Eastern District of

California explicitly dismissed Brown’s entire action for

“failure to state a claim.” 23 Its dismissal was with prejudice. 24

Similarly, in Brown II, Brown, proceeding IFP, 25 filed a Bivens

action against prison officials, which the District Court in the

Eastern District of California dismissed with prejudice for

“failure to state a Bivens claim upon which relief may be

granted.” 26 Accordingly, we conclude that both Brown I and

Brown II qualify as strikes under § 1915(g).

Given that Brown has two strikes from Brown I and

Brown II, our decision on his IFP motions hinges on whether

Profitt constitutes a third strike. We conclude that it does not.

In Profitt, Brown filed a request to proceed without prepaying

the filing fees to which he attached a complaint. The Central

District of California noted that the complaint was “lodged”

and was “sought to be filed” by Brown. 27 Ultimately, the

District Court denied Brown’s request to proceed without

prepayment of fees using a form entitled “Order Re Leave to

File Action Without Prepayment of Full Filing Fee,” which

was signed by both the Magistrate Judge and the District Judge.

22

Brown v. United States, No. 1:11-CV-01562-MJS, 2013 WL

2421777, at *1 (E.D. Cal. June 3, 2013).

23

Id. at *6.

24

Id.

25

Brown v. U.S., No. 1:12-CV-00165-AWI-GSA (E.D. Cal.

Mar. 30, 2012) (order granting motion to proceed IFP).

26

Brown v. U.S., No. 1:12-CV-00165-AWI-GSA, slip op. at 2

(E.D. Cal. Nov. 13, 2014).

27

Id. 61.

12

On the form, the Magistrate Judge briefly explained Brown’s

claim and then stated that Brown had “failed to state a valid

claim in two attempts. This matter will be closed.” 28

Additionally, the Magistrate Judge checked boxes indicating

that Brown’s application was being denied because of “failure

to state a claim,” that “[l]eave to amend would be futile,” and

that the denial might constitute a strike for the purposes of §

1915(g). 29 Thus, the matter was closed, and Brown’s

complaint was never actually filed with the District Court.

As § 1915(g) explains, a prisoner cannot procced IFP

“if the prisoner has, on 3 or more prior occasions, while

incarcerated or detained in any facility, brought an action or

appeal” that was dismissed because it was malicious or

frivolous or because it failed to state a claim. 30 We know then

that in order for a dismissal to qualify as a strike, the action

must have been “brought.” Accordingly, the question we must

answer is whether Profitt was an action that was “brought”

even though Brown’s complaint was never filed.

In Gibbs v. Ryan, we clarified that “[i]n the context of

filing a civil action, ‘bring’ ordinarily refers to the ‘initiation

of legal proceedings in a suit.’” 31 We therefore equated a

complaint being filed with an action being brought, explaining

that “[Gibbs’] complaint was filed, and his action was

28

Id.

29

Id.

30

28 U.S.C. § 1915(g) (emphasis added).

31

160 F.3d 160, 162 (3d Cir. 1998) (citing Black’s Law

Dictionary 192 (6th ed. 1990)).

13

‘brought’ when his motion to proceed in forma pauperis was

granted.” 32

We have continuously followed this principle, and we

reiterate it now. 33 In order for an action to be “brought” under

§ 1915(g), a litigant’s complaint must be filed with the District

Court. A complaint, however, cannot be filed until the litigant

has paid the filing fees or until his motion to proceed IFP has

been granted. Thus, because Brown’s complaint in Profitt was

never filed, we conclude that Profitt was not an action that was

“brought” under § 1915(g), so it does not constitute a strike.

We recognize that our conclusion would change if we

applied the Ninth Circuit’s precedent instead of our own. In

O’Neal v. Price, the Ninth Circuit “conclude[d] that a plaintiff

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

submits a complaint and request to proceed [IFP] to the

court.” 34 Under such rule, Profitt would be an action that was

“brought” because Brown submitted both a complaint and a

request to proceed without prepayment of fees to the District

Court. Given that fact, and the fact that the District Court’s

form stated that the case was being dismissed for “failure to

state a claim,” it seems likely that the District Court intended

32

Id.

33

See, e.g., Millhouse, 866 F.3d at 158–59 (“[W]e 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, 91 F.3d at 458 n.13 (“[S]ubmitting

an in forma pauperis complaint to the clerk does not result in

commencement of the litigation.”).

34

531 F.3d 1146, 1152 (9th Cir. 2008).

14

Profitt to be a strike. This does not change our analysis,

however. As discussed above, we are bound to follow our

precedent, which dictates that Profitt does not qualify as a

strike. 35

Because we conclude that Brown has not previously

accrued three strikes under § 1915(g), we will grant his

motions to proceed IFP on appeal.

III.

Before we turn to the merits of Brown’s appeals, we will

take this opportunity to clarify the procedure that district courts

in our Circuit should use to docket a petitioner’s IFP motion

and complaint. Specifically, when a district court receives a

complaint before a petitioner’s motion to proceed IFP has been

granted, the court should indicate on the docket that the

complaint has been “lodged.” Then, if the district court grants

the petitioner’s IFP motion, it should update the docket with a

new entry that indicates that the complaint is “filed.” If the

district court denies the petitioner’s IFP motion, the complaint

should remain “lodged” until the petitioner pays the filing fees.

We believe that this procedure best comports not only with the

statutory text of § 1915, but also with our precedent

35

Although counsel for the appellees tried to assert at oral

argument that we had adopted the conclusion from O’Neal,

that is not the case. While we have discussed O’Neal’s

holding, we have never stated that we would follow it

ourselves. To the contrary, our precedent directly contradicts

the Ninth Circuit’s policy in O’Neal. See Millhouse, 866 F.3d

at 158-160 (discussing our rule and O’Neal).

15

demonstrating that a complaint cannot be filed until a

petitioner’s motion to proceed IFP is granted.

IV.

Finally, we will consider the merits of Brown’s three

appeals. In each case, Brown argues that the District Court

improperly denied his motions to proceed IFP. He is correct.

To begin, we note that the Government has conceded

that Brown did not have three strikes at the time the District

Court first considered his motion to proceed IFP in

Kemmerer. 36 Specifically, the Government explains that the

District Court granted Brown’s motion (and therefore should

have officially filed his complaint) in August 2014, but Brown

II was not dismissed until November 13, 2014. The District

Court then concluded that Brown II was a strike when it

vacated its grant of Brown’s IFP motion in January 2017.

Although we have not previously pinpointed the time at which

a district court may no longer consider new dismissals to be

strikes, we have addressed the issue in the appellate context.

In Millhouse v. Heath, we explained that we must “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).” 37

We now extend the Millhouse rule to encompass the

situation before us here. We conclude that strikes that accrue

before the filing of a complaint count under § 1915(g), while

strikes that accrue after do not. We believe that this rule makes

sense given the language of § 1915(g) itself. Section 1915(g)

36

Appellees’ Br. 22.

37

Millhouse, 866 F.3d at 161.

16

explicitly states that “[i]n no event shall a prisoner bring a civil

action” if he has previously accrued three strikes. 38 This

language makes clear that the critical point from which we

must determine a petitioner’s number of strikes is when the

action is brought—meaning, as we have clarified, when the

complaint is filed. In other words, because we have equated

“bring” with “file a complaint,” § 1915(g) can be read to state

that “[i]n no event shall a prisoner [file a complaint in] a civil

action” if he has previously accrued three strikes.

Accounting for the rule that only strikes that accrue

before the filing of a complaint count under § 1915(g), we

agree with the Government that Brown II did not qualify as a

strike when the District Court vacated its grant of Brown’s IFP

motion in Kemmerer in January 2017. As discussed above,

Brown’s complaint was filed well before Brown II was

dismissed. Accordingly, when the District Court reconsidered

Brown’s motion, Brown had only accrued one strike—Brown

I. Thus, we will reverse the District Court’s denial of Brown’s

IFP motion and remand Kemmerer for further proceedings.

We will also reverse the District Court’s denials of

Brown’s motions in Sage and Dees. As set forth, the District

Court denied Brown’s motions because it concluded that he

had accrued three prior strikes in Brown I, Brown II and Profitt.

However, as we have explained, Brown has not accrued three

strikes because Profitt does not qualify as one. We will

therefore reverse the District Court and remand the cases. 39

38

28 U.S.C. § 1915(g) (emphasis added).

39

Because we reverse the District Court’s denials based on the

number of strikes Brown has accrued, we need not discuss any

17

V.

For the foregoing reasons, we will grant Brown’s

motions to proceed IFP on appeal. We will also reverse the

District Court’s denials of Brown’s IFP motions and remand

all three of Brown’s cases for further proceedings.

of Brown’s arguments regarding the Act’s imminent danger

exception.

18

Brown v. Sage

Nos. 17-1222, 17-1527, 17-1714

CHAGARES, Circuit Judge, concurring in part and dissenting

in part.

My learned colleagues have applied the law of this

Court, but that jurisprudence was superseded by statute over

twenty years ago. Nevertheless, the majority has extended it,

thereby creating a circuit split, mandating adherence to an

inflexible rule that many courts in this circuit have abandoned,

and increasing litigation (and confusion) over what constitutes

a “strike” for purposes of 28 U.S.C. § 1915(g). I write

separately because I believe that the Court should take this case

en banc to align our jurisprudence with the Prison Litigation

Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66

(1996) (the “PLRA”) and with the decisions of our sister

Courts of Appeals. Adherence to our outdated and rigid two-

step procedure — the prism through which courts in this circuit

must now divine whether prior dismissals that occurred both in

and out of this circuit constitute strikes — should be discarded

in favor of the flexible and discretionary approach required by

the PLRA.

Whether Brown’s complaint and IFP application sent to

the District Court are categorized as filed, brought, or lodged

is somewhat beside the point to a proper analysis under the

PLRA. That is because the PLRA amended 28 U.S.C. § 1915

in 1996 to provide, inter alia:

Notwithstanding any filing fee, or any portion thereof,

that may have been paid, the court shall dismiss the

case at any time if the court determines

1

that—

(A) the allegation of poverty is untrue, or

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief

may be granted; or

(iii) seeks monetary relief against a

defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2). So, under this section, a district court

is authorized to dismiss a case “at any time,” regardless of the

status of a filing fee.

Our jurisprudence incorrectly, in my view, requires a

rigid two-step process. The first step is focused upon the

resolution of the IFP application. A complaint sent to the court

“cannot be filed until the litigant has paid the filing fees or until

his motion to proceed IFP has been granted.” Maj. Op. 14.

Only after a complaint is filed may the court perform its

screening duty, employing the criteria set forth in § 1915(e)(2).

See Maj. Op. 8. The majority applies our jurisprudence to hold

that because the Proffitt court in California simultaneously

denied Brown’s IFP motion and dismissed his complaint as

frivolous, the case was never filed and, thus, could not be

considered a “strike” under § 1915(g).

Our jurisprudence and holding are at odds with the

temporal freedom mandated by § 1915(e)(2). Section

1915(e)(2) permits a court to dismiss a case

“[n]otwithstanding” the filing fee matters that we consider in

our step one analysis. Moreover, we disregard the PLRA’s

grant of authority that a court may dismiss a case “at any time.”

2

Under the Court’s view, “at any time” is limited to a time after

the filing fee matters are resolved.

An analysis of our prior caselaw and the purposes of the

PLRA assist in explaining my position. Under the pre-1996

version of 28 U.S.C. § 1915, our two-step process when

proceeding in cases with an IFP motion was as follows: “the

“court grant[ed] or denie[d] in forma pauperis status based on

economic criteria alone and then, if warranted, dismisse[d] the

[case] as frivolous pursuant to § 1915(d).” Roman v. Jeffes,

904 F.2d 192, 194 n.1 (3d Cir. 1990). Section 1915(d), at that

time, provided that “[t]he court may . . . dismiss the case if the

allegation of poverty is untrue, or if satisfied that the action is

frivolous or malicious.” 28 U.S.C. § 1915(d) (1990).

Prior to enactment of the PLRA, the federal courts had

become overwhelmed with prisoner litigation. Indeed, by

1995, prisoner lawsuits constituted twenty-five percent of

federal court filings. Roller v. Gunn, 107 F.3d 227, 230 (4th

Cir. 1997). Congress became deeply concerned that a large

volume of frivolous and vexatious prisoner lawsuits both

slowed the judicial process and were unnecessarily costly for

defendants. Through its hearing process, Congress learned of

many colorful instances of such prisoner litigation. See Nussle

v. Willette, 224 F.3d 95, 105 (2d Cir. 2000) (quoting 141 Cong.

Rec. S14413 (daily ed. Sept. 27, 1995) (statement of Sen.

Abraham) (discussing examples of cases such as ones

involving an “‘insufficient storage locker space,’ a defective

haircut by a prison barber, the failure of prison officials to

invite a prisoner to a pizza party for a departing prison

employee, and yes, being served chunky peanut butter instead

of the creamy variety”), rev’d sub nom. Porter v. Nussle, 534

U.S. 516 (2002). As a result, a main purpose of the PLRA was

3

“to limit the filing of frivolous and vexatious prisoner lawsuits”

by “curtail[ing] the ability of prisoners to take advantage of the

privilege of filing I.F.P.” Abdul-Akbar v. McKelvie, 239 F.3d

307, 314 (3d Cir. 2001) (en banc). Further, the PLRA was

intended to “preserv[e] resources of both the courts and the

defendants in prisoner litigation.” Byrd v. Shannon, 715 F.3d

117, 125 (3d Cir. 2013).

One of the important reforms instituted by the PLRA to

require “early judicial screening of prisoner complaints.”

Jones v. Bock, 549 U.S. 199, 202 (2007). See also 141 Cong.

Rec. S14414 (daily ed. Sept. 27, 1995) (statement of Sen. Dole)

(noting that the PLRA “would allow a Federal judge to

immediately dismiss a complaint”). Specifically, § 1915(d)

was re-designated as § 1915(e), the phrase “at any time” was

added, other bases to dismiss were added, and “may dismiss”

was changed to “shall dismiss.” Further, the PLRA added 28

U.S.C. § 1915A, which requires courts to screen a prisoner

complaint for possible dismissal “before docketing, if feasible

or, in any event, as soon as practicable after docketing.” 28

U.S.C. § 1915A(a). And, of course, the PLRA added the so-

called “three strikes” rule in 28 U.S.C. § 1915(g). In so doing,

the PLRA “supplie[s] a powerful economic incentive not to file

frivolous lawsuits or appeals.” Abdul-Akbar, 239 F.3d at 314.

Shortly after enactment of the PLRA, we considered an

IFP prisoner complaint that a district court dismissed as

frivolous in Urrutia v. Harrisburg Cty. Police Dep’t, 91 F.3d

451 (3d Cir. 1996). The Court determined that it would apply

the older version of § 1915, as that was the version in effect

when the complaint was considered by the district court,

although in dicta, the Court speculated that “[t]here is no

reason to think that the procedure will be any different under

4

the new version of § 1915.” Id. at 455 n.4. The Court repeated

its prior two-step process, but it acknowledged: “More

commonly, however, both the filing of the complaint and the

authorization of service of the complaint on the defendants are

postponed while the magistrate judge and/or district judge

consider the § 1915(a) (indigency) and (d) (frivolousness)

issues together.” Id.

Notwithstanding this acknowledgment in Urrutia and

the advent of the PLRA, the Court today expressly forecloses

the viability of this “common[]” practice in the Third Circuit.

I note that this Court and the district courts in this circuit have

routinely taken the approach mandated by the PLRA without

much fanfare. See, e.g., Parker v. Montgomery Cty. Corr.

Facility, 870 F.3d 144, 147 (3d Cir. 2017) (counting as a strike

a case with an order both granting IFP status and dismissing

the case and noting the “at any time” language in § 1915(e)(2));

Semulka v. Pennsylvania, 515 F. App’x 74, 74 (3d Cir. 2013)

(per curiam) (granting IFP and dismissing complaint as

frivolous in same order and noting that the district court did the

same); Ackerman v. Mental Health Court, No. 2:13-CV-173,

2013 WL 456384 (W.D. Pa. Feb. 6, 2013) (dismissing the

complaint as frivolous and denying IFP in same order);

Jackson v. Brown, No. 11cv0702, 2011 WL 13176162 (W.D.

Pa. Sept. 19, 2011) (dismissing the complaint and denying IFP

application as moot in same order); Cannon v. Sleet, No. 09-

793, 2009 WL 4899235 (D. Del. Dec. 11, 2009) (same);

Salzman v. Bucks Cty. Family Court, No. 07-cv-1682 (E.D.

Pa. May 3, 2007) (dismissing complaint as frivolous and

denying IFP in same order); Ajjahnon v. State, No. 06-cv-

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3696, 2006 WL 2465422 (D.N.J. Aug. 22, 2006) (same). 1

Indeed, at oral argument, the Assistant U.S. Attorney

representing the Government advised the Court that the

District Court for the Middle District of Pennsylvania does not

follow the strict two-step process.

Our Court should adopt the more flexible analysis

signaled in Urrutia and mandated by the PLRA. I believe that

courts have the discretion to assess the two steps in either order

or even simultaneously. See 10 James W. Moore, Moore’s

Federal Practice § 55.104[1][a] (3d ed. 2018) (noting that “the

court may dismiss the case, either before ruling on or after

granting in forma pauperis status”). Accordingly, as in Proffitt,

a district court could make “the fee assessment and conduct[]

the screening process in the same opinion and order.” McGore

v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). This

approach best captures the letter and intent for the PLRA.

Courts would have the ability, then, to screen complaints “at

1

The United States District Court for the Middle District of

Pennsylvania in Powell v. Hoover, 956 F. Supp. 564 (M.D. Pa.

1997), addressed the then-new PLRA head-on. The court

observed that the PLRA amended § 1915 to include the “at any

time language.” Id. at 567. That language, the court noted, “is

a reason to think that the procedure will be different under the

new version of § 1915.” Id. In particular, the court posited

that “‘at any time’ would include a time prior to granting the

application to proceed in forma pauperis.’” Id. The court

further posited that under the PLRA, whether a filing fee has

been paid “does not affect the authority of the court to dismiss

the case.” Id. As a result, the court concluded that a court may

now “review the complaint for merit without ruling on the

motion to proceed in forma pauperis.” Id.

6

any time,” § 1915(e)(2), and it would allow fulfillment of the

mandate of § 1915A to screen complaints “before docketing”

or as soon practicable thereafter. This approach would also

allow courts “avoid [the] pointless paper shuffling,” Ford v.

Johnson, 362 F.3d 395, 400 (7th Cir. 2004), of the two-step

method and would empower the courts to move early to screen

complaints that should be dismissed to conserve judicial

resources and “conserve the resources of defendants forced to

respond to baseless lawsuits,” Buchheit v. Green, 705 F.3d

1157, 1161 (10th Cir. 2012). This approach would relieve us

from straining to define the word “bring” in § 1915(g), 2 and

would align us with our sister Courts of Appeals. See, e.g.,

Buchheit, 705 F.3d at 1160, 1161 (noting that, although not

2

The two Courts of Appeals that have addressed what the

PLRA means by brought an action have held brought is “when

a complaint is tendered to the district clerk,” rather than when

it is filed. Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004).

See also O’Neal v. Price, 531 F.3d 1146, 1152 (9th Cir. 2008)

(“[W]e conclude that a plaintiff has ‘brought’ an action for

purposes of § 1915(g) when he submits a complaint and

request to proceed in forma pauperis to the court.”); Vaden v.

Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (adopting

holding in Ford). Today we create a circuit split that I believe

is unnecessary. Even if we were compelled to answer this

question, I believe that the Courts of Appeals for the Seventh

and Ninth Circuits were correct in their interpretation of

brought. In particular, that word “properly focuses attention

on what the prisoner-plaintiff does” to start his or her lawsuit,

as opposed to the “filing” a court employee might undertake.

Vaden, 449 F.3d at 1050. Further, our jurisprudence simply

does not supply a ready definition of brought for purposes of

the PLRA.

7

required, “screening might be a good practice and more

efficient” before considering an IFP application, and observing

that “the language of the present rule . . . provides needed

flexibility”); Torres v. O’Quinn, 612 F.3d 237, 249 (4th Cir.

2010) (“[I]n keeping with the sensible practice of many district

courts around the country, the district court in these cases

promptly determined that the complaints failed to state a claim

upon which relief could be granted and dismissed each case

pursuant to 28 U.S.C. § 1915A without bothering to process

Torres’s request for in forma pauperis status.”), abrogated on

other grounds by Bruce v. Samuels, 136 S. Ct. 627 (2016);

O’Neal v. Price, 531 F.3d 1146, 1151-56 (9th Cir. 2008); Ford,

362 F.3d at 399-400 (“A prisoner’s civil action may be

dismissed . . . before any fees have been paid, and thus before

‘filing’ occurs.”); McGore, 114 F.3d at 608 (noting that the

court’s two-step process does not prohibit courts from

simultaneously considering both steps); Leonard v. Lacy, 88

F.3d 181, 185 (2d Cir. 1996) (observing the various practices

among the district courts with regard to docketing and

dismissing of frivolous prisoner IFP actions, which includes

the simultaneous docketing and dismissal of complaints, and

“[a]s to such dismissed complaints, the [IFP] motion is granted

in some courts, and denied in other courts”). 3

3

Our decision in Byrd recognized that “the PLRA’s purpose is

best served by taking an approach that does not open the door

to more litigation surrounding § 1915(g)” and, in particular,

“more, and perhaps unnecessary, litigation on whether or not a

particular dismissal constitutes a strike.” 715 F.3d at 126. Our

decision does just that and will require courts in this circuit to

discern whether potential strikes based on dismissals outside

this circuit meet our rigid two-step procedural requirements.

This is so despite our bright-line rule set forth in Byrd that a

8

For the foregoing reasons, I concur in part and dissent

in part and urge the Court to consider this matter en banc.

strike occurs, inter alia, when an “entire action or appeal is . . .

dismissed explicitly because it is ‘frivolous,’ ‘malicious,’ or

fails to state a claim.’” Id. See generally Millhouse v. Heath,

866 F.3d 152, 164 (3d Cir. 2017) (recognizing that “we

adopted in Byrd a bright-line rule in deciding what constitutes

a strike.). The California-based district court’s order in Profitt

clearly met this bright line rule, and the majority even noted

the likelihood “that the District Court intended Profitt to be a

strike.” Maj. Op. 15. Nonetheless, Profitt is not considered a

strike under today’s decision.

9