Casey Dooley v. John Wetzel

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 19-1684

_____________

CASEY DOOLEY,

Appellant

v.

JOHN WETZEL; KEVEN KAUFMAN;

RICHARD A. GOSS

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No.: 3-18-cv-01310)

District Judge: Honorable James M. Munley

Argued November 12, 2019

(Opinion Filed: April 27, 2020)

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges

Amir H. Ali

Roderick & Solange MacArthur Justice Center

777 6th Street N.W.

11th Floor

Washington, DC 20001

Bradley N. Garcia (Argued)

Meaghan M. VerGow

O’Melveny & Meyers

1625 I Street N.W.

Washington, DC 20006

Counsel for Appellant

Josh Shapiro

J. Bart DeLone

Michael J. Scarinci (Argued)

Office of Attorney General of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

Counsel for Appellees

OPINION

RENDELL, Circuit Judge:

Appellant Casey Dooley challenges the District Court’s

sua sponte dismissal of his Complaint without leave to amend

2

as well as the Court’s declaration that the dismissal constituted

a “strike” for purposes of the Prison Litigation Reform Act

(PLRA). Because we agree that the District Court erred in both

respects, we will vacate the District Court’s Order and remand

for further proceedings.

I. Background

This case arises out of Dooley’s pro se challenge to the

refusal of the Department of Corrections (DOC) to assign him

the mental classification associated with the greatest mental

health resources. Specifically, Dooley argues that he should

be listed as a D Stability Code inmate and receive the mental

health resources that accompany that status. The DOC

Officials’ refusal to designate him D Stability Code, in

Dooley’s view, violated his Eighth Amendment rights. On

appeal, Dooley contends that the District Court erred when it

dismissed his Eighth Amendment claim and that the Court at

least should have granted him leave to amend. Dooley also

argues that the Court erred when it determined that the

dismissal of the suit constituted a “strike” under the PLRA. We

discuss each issue in turn.

a. D Stability Code and Guilty but Mentally Ill

Inmates

The D Stability Code that Dooley seeks applies to

inmates who have the most significant mental health needs and

entitles them to the greatest amount of mental health resources

available. Pa. DOC Reg. § 13.8.1(1)(B)(2)(g)(1)(d). DOC

policy specifies that certain inmates should be listed on the “D

Roster,” including those who have been found guilty but

3

mentally ill (GBMI). Pa. DOC Reg.

§ 13.8.1(2)(A)(1)(a)(4)(d), (J)(3)(a).

When a jury renders a GBMI verdict in Pennsylvania,

the court must hear testimony and make a finding as to whether

the defendant is, at the time of sentencing, “severely mentally

disabled,” requiring treatment under the Mental Health

Procedures Act. 42 Pa. Cons. Stat. § 9727(a). Some aspects

of DOC policy differentiate between inmates found GBMI and

determined to be severely mentally disabled (Category I) and

those found GBMI but determined not to be severely mentally

disabled (Category II). See Pa. DOC Reg. § 13.8.1(2)(J)(1)(b).

All GBMI inmates must be placed on the D Roster when they

first arrive at the DOC and subsequently receive regular

psychiatric evaluation. Id. at § 13.8.1(2)(J)(3).

b. Dooley’s GBMI Status and Grievances Seeking

D Stability Code

The parties’ conflict turns in part on a disagreement,

reflected throughout the grievance process, about whether

Dooley should be considered a GBMI inmate. Although the

outcome of that factual dispute does not dispose of the

questions before us, the issue warrants some explanation for

the sake of context.

In 2002, Dooley was tried for five counts of attempted

murder, five counts of aggravated assault, possession of an

instrument of a crime, and reckless endangerment of another

person, and the jury found him GBMI on all charges. Dooley

has cited the jury’s GBMI finding in grievances requesting the

D Stability Code designation as well as his Complaint. On

August 13, 2017, Dooley filed a grievance complaining that he

4

was “not being treated as a D Code,” despite having been found

guilty but mentally ill by the jury. App. at 149. He noted that

he had previously written staff about the issue. He submitted

a second grievance on August 24, in which he claimed that an

official told him in an annual review that, because the jury’s

verdict had been changed, he was not GBMI and therefore was

not a D Stability Code. Dooley filed the grievance to object to

this determination, contending the jury’s GBMI finding should

have been credited.

Although there is no dispute that the jury found Dooley

GBMI, the DOC Officials repeatedly represented to Dooley

that his court documents no longer identified him as GBMI,

and that he therefore should not be labeled D Stability Code.

It is unclear what the sentencing judge determined or what

evaluations were performed, as that aspect of the record has not

been provided to us. The only portion of the sentencing

transcript before us consists of three pages that Dooley

attached to his Complaint, in which defense counsel briefly

referenced the jury’s GBMI verdict, and the sentencing court

noted that Dooley “needs some psychiatric assistance,” before

going on to state Dooley’s sentence without any specific

reference to mental health treatment. App. at 62–63.

Otherwise, all we know is what the various DOC officials have

represented as noted below.

On August 29, DOC Official Richard Goss denied the

first grievance. Goss wrote:

I have reviewed your claims in this grievance and

we have discussed this at length previously. I

have also spent considerable time researching

5

this for you. You are not GBMI nor a D stability

Code.

You were found Guilty But Mentally Ill by the

jury. At that time, the judge entered a temporary

sentencing order pending a Psychiatric

evaluation to address the GBMI. The result of

the evaluation did not support the GBMI

designation and it was deleted from the final

order.

This grievance has no merit and is denied.

App. at 151. On appeal, DOC Official Kevin Kauffman upheld

this decision. He reiterated that, although a jury found Dooley

GBMI, the “judge entered a temporary sentencing order

pending a psychiatric evaluation to address the GBMI verdict.

The evaluation did not support the GBMI designation and it

was deleted from the final order.” App. at 152. He then

concluded, “you are not a stability D inmate” and

recommended that Dooley address any concerns to the

sentencing judge. App. at 152.

Dooley appealed to the Chief Grievance Officer, Dorina

Varner, who upheld the previous decisions. Her response

followed the recommendation of the Acting Director of the

Psychology Office, who noted that “Inmate Dooley’s court

documents were reviewed and found to not identify him as

‘Guilty but Mentally Ill.’” App. at 141. Chief Grievance

Officer Varner’s decision read:

It has been found that your court documents were

reviewed and found to not identify you as

6

“Guilty but Mentally Ill”. Because you do not

like or agree with the interpretation of your court

documents does not give any further merit to

your claims. If you do not agree with the court

documents, this should be addressed with the

Judge and the court. Therefore, this office

upholds the responses provided to you and your

requested relief is denied.

App. at 140. The denials of Dooley’s grievance and appeals

seeking D Stability Code classification were thus consistently

premised on his purported lack of GBMI status.

The District Court seems to have credited the DOC

Officials’ assertion that the GBMI designation was “deleted.”

App. at 5. Dooley, however, maintains that his GBMI status

continued to apply and supported his claim that he was entitled

to the more intensive mental health treatment offered to D

Stability Code inmates. On appeal, the DOC Officials do not

argue that the sentencing court removed the GBMI finding

altogether; they merely assert that the court found Dooley was

not severely mentally disabled under 42 Pa. Cons. Stat. §

9727(a).

Given the foregoing facts, Dooley’s contention that he

retained the GBMI designation, at least to some extent, is not

baseless. If, as the DOC Officials contend, a jury found Dooley

GBMI and a sentencing judge concluded that Dooley was not

severely mentally disabled, that would not have eliminated his

GBMI status. Under current DOC policy, it would have placed

him in Category II of GBMI inmates, which would have

required that he be placed on the D Roster and that he

subsequently receive regular psychiatric evaluation. See Pa.

DOC Reg. § 13.8.1(2)(J)(1)(b)(2), (3). Although the current

7

DOC policies may not have been in effect at the time of

Dooley’s initial incarceration, they support the view that, even

if the sentencing judge found him not severely mentally

disabled, his GBMI verdict did not disappear or lose all

significance.1

c. Complaint

In May 2018, Dooley filed a pro se complaint in the

Court of Common Pleas for Huntingdon County against Goss,

Kauffman, and John Wetzel, the Secretary of DOC. The

Complaint alleged, under 42 U.S.C. § 1983, that the DOC

Officials violated Dooley’s Eighth Amendment rights through

deliberate indifference to his serious mental health needs. The

Complaint cited the GBMI verdict as a primary reason why

Dooley should be categorized as D Stability Code and entitled

1

The record does not indicate specifically what policies for

mental health classification were in place at the time of

Dooley’s incarceration in 2002. As Dooley points out,

however, the Pennsylvania DOC adopted the current mental

health classification system, which includes the D Stability

Code, in 2015 in response to a Department of Justice

investigation into the DOC’s mistreatment of mentally ill

inmates, including problems with classification. See Letter

from David Hickton, U.S. Attorney, W.D. Pa. to Tom Corbett,

Governor of Pa. (May 31, 2013) (announcing statewide

expansion of investigation), available at

https://www.justice.gov/sites/default/files/crt/legacy/2013/06/

03/cresson_findings_5-31-13.pdf; Letter from David Hickton,

U.S. Attorney, W.D. Pa. to Tom Corbett, Governor of Pa. (Apr.

14, 2016) (announcing decision to close investigation in light

of improvements by DOC), available at

https://www.justice.gov/opa/file/841061/download.

8

to the resources associated with that status. Dooley also

attached to the Complaint pages from the sentencing hearing

transcript, which included a remark by the judge about

Dooley’s need for psychiatric assistance. The Complaint

stated that Dooley “has suffered agonizing mental health pain

and trauma and serious depression, lack of sleep, being

paranoid throughout the day, nightmares, and physical abuse

because of his mental illness.” App. at 49. It noted that Dooley

“suffers from acute/serious depression sometimes bordering on

manic-depression” requiring treatment. App. at 50.

Dooley claimed that, despite his mental health

problems, the DOC Officials refused to provide him adequate

mental health treatment, specifically the treatment afforded to

D Stability Code inmates. This allegedly caused him to

“suffer[ ] severe harm.” App. at 48. He noted that, as the basis

for refusing to provide him D Code treatment, the officials

simply asserted that he was not found GBMI because the

sentencing judge changed the verdict. By denying him

adequate mental health treatment, the Complaint contended,

the DOC officials were deliberately indifferent to Dooley’s

serious medical needs in violation of his Eighth Amendment

rights.

d. Federal Court Proceedings

Shortly after Dooley filed his Complaint, the DOC

Officials removed the action to federal court, and the case

was referred to Magistrate Judge Joseph F. Saporito, Jr. The

DOC Officials quickly filed a Motion to Dismiss or for

Summary Judgment. They argued only that Dooley had

failed to exhaust his administrative remedies.

9

In his Report and Recommendation (R&R), the

Magistrate Judge concluded that Dooley did exhaust his

administrative remedies but recommended the District Court

dismiss the Complaint as frivolous and for failure to state a

claim. He concluded that Dooley had alleged no personal

involvement by any of the defendants, finding the review

and/or denial of a grievance insufficient to show personal

involvement. The R&R recommended that the District Court

sua sponte dismiss the Complaint and that it do so without

leave to amend because amendment would be futile. The R&R

also included a “Three Strikes Warning.” App. at 36–37. That

warning stated that adoption of the recommendation to dismiss

the suit would result in a strike under 28 U.S.C. § 1915(g) and

that accumulation of three strikes would preclude Dooley from

proceeding in forma pauperis in subsequent cases.

Both parties objected to the R&R, but the District Court

overruled the objections. The Court first considered and

overruled Dooley’s objections. It found that Dooley failed to

state an Eighth Amendment violation because he did not

sufficiently allege that he had been deprived of “life’s

necessities,” such as “food, clothing, shelter, medical care and

reasonable safety.” App. at 9–10 (citations omitted). The

Court further concluded that the Complaint was insufficiently

detailed and did not particularly allege the DOC Officials’

personal involvement. It then declined to consider the

officials’ objections as to exhaustion, as they were rendered

moot because of the dismissal of the Complaint on the merits.

The Court adopted the R&R’s recommendation to deny the

Motion to Dismiss or for Summary Judgment but to sua sponte

dismiss the Complaint without leave to amend as frivolous and

10

for failure to state a claim.2 The Court did not address whether

leave to amend would be inequitable or futile. The Order

included a statement that the dismissal as frivolous and for

failure to state a claim constituted a “strike” under 28 U.S.C. §

1915(g).

II. Discussion

Dooley raises multiple challenges to the District Court’s

rulings. First, Dooley contends that the District Court erred

when it dismissed his Eighth Amendment claim and that, at a

minimum, the Court should have granted leave to amend the

Complaint. Next, Dooley argues that the Court lacked the

authority to determine whether the dismissal of the suit

constituted a “strike” under the PLRA and that, even if it had

such authority, the Court erroneously labeled his suit a “strike.”

We address each challenge in turn.3

2

The District Court predominantly applied the standard for

evaluating whether a pleading has stated a claim, but rather

than simply concluding that Dooley’s Complaint failed to state

a claim, the Court further declared that the Complaint was

“frivolous under the law.” App. at 10. The Court’s Order

purported to dismiss the Complaint “as frivolous,” but another

part of the Order referred to “the dismissal of this action as

frivolous and for failure to state a claim.” App. at 3. The

Memorandum cited the statutory provisions for both grounds.

We therefore assume that the District Court dismissed the

Complaint both as frivolous and for failure to state a claim.

3

The District Court had jurisdiction over Dooley’s claim

pursuant to 28 U.S.C. §§ 1331 and 1441. We have jurisdiction

under 28 U.S.C. § 1291 over the Court’s final decision

dismissing the Complaint.

11

a. Dismissal of Dooley’s Eighth Amendment

Claim

We first address the District Court’s decision to dismiss

Dooley’s Complaint as frivolous and for failure to state a claim

under 28 U.S.C. §§ 1915A, 1915(e)(2) and 42 U.S.C.

§ 1997e(c). Although we agree that Dooley failed to

adequately state a claim against these specific individuals

under 42 U.S.C. § 1983, we do not find the Complaint so

baseless as to be frivolous. Further, the District Court made no

finding as to whether amendment would be inequitable or

futile, and thus erred in dismissing the Complaint without leave

to amend.

We exercise plenary review over the District Court’s

sua sponte dismissal of the Complaint under 28 U.S.C.

§§ 1915A, 1915(e)(2), and 42 U.S.C. § 1997e(c). It is well

settled that we consider dismissals for failure to state a claim

de novo. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000);

see also Castleberry v. STI Grp., 863 F.3d 259, 262–63 (3d Cir.

2017). We apply the same standard to the Complaint’s

dismissal as frivolous. Mitchell v. Horn, 318 F.3d 523, 530 (3d

Cir. 2003). In assessing the Complaint, we are mindful of our

“obligation to liberally construe a pro se litigant’s pleadings,”

Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011),

particularly where the pro se litigant is imprisoned. Mala v.

Crown Bay Marina, Inc., 704 F.3d 239, 244–45 (3d Cir. 2013).

Dooley’s Complaint failed to state an adequate § 1983

claim because it did not demonstrate personal involvement by

any of the defendants in the complained-of conduct. In

advancing any § 1983 claim against prison officials, a plaintiff

may not rely solely on a respondeat superior theory of liability.

12

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Rather, a plaintiff must aver facts to show the defendants’

personal involvement in the alleged misconduct. Id. Personal

involvement requires particular “allegations of personal

direction or of actual knowledge and acquiescence.” Id.

Here, the Complaint does not specifically allege

personal involvement by any of the defendants. The only

evidence to which Dooley points to show Wetzel knew of

Dooley’s mental health needs is the fact that he sent Wetzel a

copy of documents reflecting his GBMI verdict and request for

D Code designation and Wetzel’s lack of any response or

action. But this evidence does not demonstrate the personal

direction or actual knowledge required under Rode, and

Dooley’s allegations of Wetzel’s involvement are insufficient.

See Rode, 845 F.2d at 1207–08. Similarly, as to Kauffman and

Goss, the only involvement alleged in the Complaint is their

review and denial of Dooley’s grievance. We therefore agree

that Dooley failed to state a claim and conclude that the District

Court did not err in dismissing the Complaint on that ground.

The District Court erred, however, when it dismissed

the Complaint as frivolous and without leave to amend. It is

well understood that “a complaint filed in forma pauperis is

not automatically frivolous . . . because it fails to state a claim.”

Neitzke v. Williams, 490 U.S. 319, 331 (1989); see also

Grayson v. Mayview State Hosp., 293 F.3d 103, 112 (3d Cir.

2002). Rather, a claim is frivolous only where it depends “on

an ‘indisputably meritless legal theory’ or a ‘clearly baseless’

or ‘fantastic or delusional’ factual scenario.” Mitchell, 318

F.3d at 530 (quoting Neitzke, 490 U.S. at 327–28). Here,

Dooley advanced a valid legal theory, and particularly given

13

our liberal pro se pleading standards, the factual scenario

alleged was not clearly baseless or delusional.

Dooley’s Complaint, construed liberally, laid out a

plausibly valid theory for a § 1983 Eighth Amendment claim.

Prison officials violate an inmate’s Eighth Amendment rights

when they are deliberately indifferent to an inmate’s serious

medical need. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

A serious medical need exists where “failure to treat can be

expected to lead to substantial and unnecessary suffering,” and

a doctor has diagnosed the condition, or the need for treatment

would be obvious to a lay person. Colburn v. Upper Darby

Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). Officials are

deliberately indifferent to such needs when they are actually

aware of a substantial risk of serious harm and disregard that

risk. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Dooley’s Complaint turned on this Eighth Amendment legal

theory, and the facts supporting it were not baseless, fantastic,

or delusional. See Mitchell, 318 F.3d at 530.

The factual scenario in Dooley’s Complaint alleged a

medical need in the form of serious mental health problems.

Dooley’s claimed depression, pain, trauma, lack of sleep,

nightmares, paranoia, and related mental health issues could

constitute the requisite serious medical need if diagnosed or if

the need for greater treatment would be obvious to a lay person.

See Palakovic v. Wetzel, 854 F.3d 209, 222, 227 (3d Cir. 2017);

Inmates of the Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 763

(3d Cir. 1979). The jury’s GBMI finding and the sentencing

judge’s comment about his mental health needs may show that,

at one point, Dooley’s mental health problems were obvious to

14

lay people.4 Additional facts in an amended complaint might

provide greater specificity necessary to demonstrate a serious

medical need. Thus, the currently alleged facts are not so

clearly baseless as to make the claim frivolous.

Similarly, if the prison officials were actually aware or

knew of a substantial risk of serious harm when they allegedly

failed to provide Dooley with D Code resources, and they

disregarded that risk, then that could constitute deliberate

indifference to a serious medical need. See Farmer, 511 U.S.

at 837. Dooley did allege inaction on the part of the DOC

Officials in the face of his repeated complaints about

inadequate mental health treatment. He alleged that the

officials simply told him that he was not GBMI and therefore

not a D Stability Code inmate. We do not know whether the

4

In arguing that Dooley cannot state an Eighth Amendment

claim, Appellees as well as the Magistrate Judge have

emphasized that the jury’s GBMI finding is not a medical

diagnosis and does not operate as a legal requirement of

specific mental health treatment. This misunderstands the

relevance of the GBMI verdict. The fact that the GBMI finding

may not alone establish a serious medical need or give rise to

an obligation to provide specific treatment does not preclude

its relevance as a fact that demonstrates the obviousness and

seriousness of Dooley’s specifically pled psychiatric problems.

In addition to demonstrating that a jury recognized Dooley’s

mental illness, the GBMI verdict shows that Dooley, even if

not found severely mentally disabled, had mental health needs

that were serious enough to require—under current DOC

policy—at least temporary D Code status and regular

psychiatric evaluation. See Pa. DOC Reg.

§ 13.8.1(2)(J)(1)(b)(2), (3).

15

officials ever considered whether Dooley was receiving

appropriate mental health care or provided further evaluation

to determine what level of treatment Dooley required.5

Officials became aware of his contention that he required D

Stability Code treatment at least by the time Dooley availed

himself of the grievance process. Goss further acknowledged

involvement and knowledge of the situation beyond his role in

the grievance process, and Dooley’s objections to the R&R

raised new facts about the officials’ awareness of his situation

and failure to intervene. Although the Complaint, as pled, is

lacking specific facts regarding the officials’ actions or

inaction to show deliberate indifference, additional detail could

satisfy that standard. The factual scenario described by

Dooley, particularly if he were permitted to amend his

Complaint, could support a legally valid theory for an Eighth

Amendment claim. The District Court therefore should not

have dismissed the Complaint as frivolous and instead should

have permitted Dooley to amend.

Moreover, the Court made no finding that amendment

would be inequitable or futile. We have held that district courts

should dismiss complaints under the PLRA with leave to

amend “unless amendment would be inequitable or futile.”

Grayson, 293 F.3d at 108, 110; see also Shane v. Fauver, 213

5

The DOC Officials repeatedly emphasize that “the jury’s

nearly 20-year-old GBMI verdict” cannot be equated “with a

current diagnosis by a doctor.” Appellees’ Br. at 24. But the

same would be true of a sentencing judge’s nearly 20-year-old

determination that a defendant was not “severely mentally

disabled” so as to need continuing treatment. Whether or not

Dooley needed D Stability Code treatment in 2002 does not

determine the appropriateness of such treatment now.

16

F.3d 113, 116 (3d Cir. 2000).6 That determination generally

lies within the discretion of the District Court, and we thus

review a district court’s decision not to grant leave to amend

for abuse of discretion. Travelers Indem. Co. v. Dammann &

Co., Inc., 594 F.3d 238, 243 (3d Cir. 2010); Grayson, 293 F.3d

at 108. We have held, however, that “outright refusal to grant

the leave without any justifying reason [i.e., inequity or futility]

. . . is not an exercise of discretion; it is merely abuse of that

discretion.” Grayson, 293 F.3d at 108 (emphasis added)

(alteration in original). Here, the District Court engaged in no

discussion about whether amendment would be inequitable or

futile before adopting the R&R’s recommendation to dismiss

without leave to amend.7 We conclude that amendment would

not be clearly futile, and the District Court should have

6

Appellees argue that the District Court implicitly found

amendment futile when it determined the claim to be frivolous.

We have noted that “dismissals of frivolous claims do not

require leave to amend due to the long tradition of denying

leave to amend . . . when amendment is inequitable or futile.”

Grayson, 293 F.3d at 112–13. But where, as here, the

Complaint was properly dismissed, not as frivolous, but for

failure to state a claim, plaintiffs “are entitled to amend their

complaint unless doing so would be inequitable or futile.” Id.

at 111.

7

The R&R determined that leave to amend was not appropriate

because it found the Complaint “legally frivolous” and because

the GBMI finding serves as a “legally operative factual

finding, not a medical diagnosis.” App. at 35–36. As noted

above, we conclude that Dooley’s Complaint is not legally

frivolous.

17

permitted Dooley to amend the Complaint. We will therefore

vacate its order and remand for further proceedings.8

b. Determination that the Dismissal Constitutes a

PLRA “Strike”

Dooley next objects to the District Court’s

determination that the dismissal of his Complaint amounted to

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

specifically 28 U.S.C. § 1915(g). We exercise “plenary review

with respect to the proper interpretation of the PLRA and its

three strikes rule.” Millhouse v. Heath, 866 F.3d 152, 156 (3d

Cir. 2017). Dooley contends that the District Court lacked the

authority to prospectively label the dismissal a strike under the

PLRA. We agree.

In examining whether the PLRA allows District Courts

to prospectively—at the time of dismissal—label a dismissal a

“strike” for purposes of future litigation, we turn first to the

language of the statute. 28 U.S.C. § 1915(g) reads:

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

8

We have not considered Appellees’ exhaustion arguments,

which they raised again on appeal, because the District Court

did not reach them. Nothing in our decision today, however,

prevents the District Court from revisiting the exhaustion issue

on remand.

18

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.

(emphasis added). This language contemplates a prisoner who

attempts to bring a suit after having had three prior suits

dismissed. It thus envisions a determination at the time of the

subsequent suit, in which a future district court evaluates

whether “prior” suits “brought” by the same plaintiff were

dismissed on enumerated grounds. Id.

To interpret the statute otherwise would run afoul of

Article III’s case or controversy requirement. Under Article

III, a “claim is not ripe for adjudication if it rests upon

‘contingent future events that may not occur as anticipated, or

indeed may not occur at all.’” Texas v. United States, 523 U.S.

296, 300 (1998) (quoting Thomas v. Union Carbide Agric.

Prods. Co., 473 U.S. 568, 580–81 (1985)). At the time of the

dismissal of Dooley’s action, the question of whether that

dismissal constituted a strike under § 1915(g) was premature.

It had no immediate consequence because Dooley may never

again seek to file a lawsuit. The question is not ripe for

adjudication unless or until he seeks to file a fourth suit in

forma pauperis. Deleon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004);

Lucien v. Jockisch, 133 F.3d 464, 469 n.8 (7th Cir. 1998).

19

Leaving the § 1915(g) strike determination to a future

court where the issue is squarely presented further avoids the

risk that dismissing courts will make haphazard or erroneous

determinations to which subsequent courts might defer.

Deleon, 361 F.3d at 95 n.1. Appellees contend that strike

determinations are straightforward, requiring no briefing and

carrying little to no risk of harm from erroneous decisions.

That not only misses the point but is in itself questionable. A

strike carries great significance, and the gratuitous calling of a

strike as happened here can clearly be damaging later on. Only

when the strike question has an immediate impact should a

court rule on the issue, with the benefit of briefing by the

parties if necessary. The possibility for error regarding this

important issue is greatly reduced before a future court

considering the strike question at a moment when it carries

immediate significance.9 This practical reality reinforces the

natural reading of the statute, requiring that later courts make

the strike determination only when the issue has become ripe

9

Here, the District Court did, in fact, err in determining that

the dismissal amounted to a strike under the PLRA. Dooley

brought his suit in state court and the DOC Officials removed

the suit to federal court, but the PLRA speaks only to suits

brought in federal court. The statute applies to prisoners who

“on 3 or more prior occasions . . . brought an action or appeal

in a court of the United States that was dismissed” on an

enumerated ground. 28 U.S.C. § 1915(g) (emphasis added).

We have held that, under the PLRA, “a prisoner has ‘brought

an action’ when he tenders or submits his complaint to the

court.” Brown v. Sage, 941 F.3d 655, 661 (3d Cir. 2019).

Dooley submitted his Complaint to the state court, not to “a

court of the United States,” so it did not fall within the scope

of § 1915(g).

20

for adjudication. We therefore hold that the District Court

lacked the authority, at the time of dismissal, to declare that the

dismissal constituted a “strike” for purposes of § 1915(g).

III. Conclusion

Although we agree with the District Court that Dooley’s

Complaint failed to state a claim, we find that the District Court

erred in failing to grant leave to amend without determining

whether such leave would be inequitable or futile. The Court

further erred when it prospectively and erroneously declared

the dismissal to constitute a strike under § 1915(g). For the

foregoing reasons, we will vacate the District Court’s Order

dismissing the Complaint without leave to amend and denying

the Motion to Dismiss or for Summary Judgment, and remand

for further proceedings consistent with this opinion.

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