Ball v. Famiglio, Nos. 12–1067

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtJORDAN
Citation726 F.3d 448
PartiesDawn BALL, Appellant v. Dr. FAMIGLIO; Gloria Diggan, R.N.; Nurse Dillela; Vanessa Nicola, Hygenist; Nelms, Dentist; Nurse Green; Brian Mench, Nurse; Mrs. Mench; Ms. Jarret; Ms. Brown; Ms. Well Chance; Nurse Boyer; P.A. Egan; P.A. Himelsback; Erica Stroup; Eye Doctor; Ms. Johnson; Major Smith; Dr. Fabian; Captain Pinard; Ms. Gamble; Dr. Woods; Dr. Shiptowski; Sgt. Ragar; Sgt. Saar; Sgt. Johnson; Lt. Boyer; Nurse Candy Ott.
Docket Number12–2604.,Nos. 12–1067
Decision Date09 August 2013

726 F.3d 448

Dawn BALL, Appellant
v.
Dr. FAMIGLIO; Gloria Diggan, R.N.; Nurse Dillela; Vanessa Nicola, Hygenist; Nelms, Dentist; Nurse Green; Brian Mench, Nurse; Mrs. Mench; Ms. Jarret; Ms. Brown; Ms. Well Chance; Nurse Boyer; P.A. Egan; P.A. Himelsback; Erica Stroup; Eye Doctor; Ms. Johnson; Major Smith; Dr. Fabian; Captain Pinard; Ms. Gamble; Dr. Woods; Dr. Shiptowski; Sgt. Ragar; Sgt. Saar; Sgt. Johnson; Lt. Boyer; Nurse Candy Ott.

Nos. 12–1067, 12–2604.

United States Court of Appeals,
Third Circuit.

Argued May 30, 2013.
Filed: Aug. 9, 2013.


[726 F.3d 451]


Dawn Marie Ball, Muncy SCI, Muncy, PA, Pro Se Appellant.

Kathryn M. Kenyon, [argued], Pietragallo, Gordon, Alfano, Bosick & Raspanti, Pittsburgh, PA, for Appellees Famiglio, Egan, Himelsback, Stroup, Eye Doctor, Johnson, and Fabian.


Jaime B. Boyd, Raymond W. Dorian, [argued], Pennsylvania Dept. of Corrections, Office of Chief Counsel, Mechanicsburg, PA, for Appellees Diggan.

Alan S. Gold, [argued], Gold & Ferrante, Jenkintown, PA, for Appellees Woods, Shiptowski.

Matthew E. Carey, [argued], Thomas J. Derbesy, [argued], Richard H. Frankel, Philadelphia, PA, Court Appointed Amicus Curiae.

Before: JORDAN, VANASKIE and COWEN, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Dawn Ball, an inmate in the Restricted Housing Unit at the Pennsylvania State Correctional Institution Muncy (“SCI–Muncy”), appeals the denial of her motion for a preliminary injunction and the grant of summary judgment to the defendants in this pro se action she brought pursuant to 42 U.S.C. § 1983, in which she alleges deliberate indifference to her medical needs in violation of the Eighth Amendment. Because Ball has asked to proceed in forma pauperis (“IFP”) on appeal, we must determine whether she is eligible for that status under the Prison Litigation Reform Act (“PLRA”), Pub.L. No. 104–134, 110 Stat. 1321 (1996). For the following reasons, we conclude that she is not eligible for IFP status because she had accrued three “strikes” under the PLRA and was not in imminent danger of serious physical injury when she brought these appeals. We will therefore deny her motion to proceed IFP and will also deny without prejudice her motion for appointment of counsel.

I. BackgroundA. Statutory Background

The federal IFP statute, enacted in 1892 and currently codified at 28 U.S.C. § 1915, “is designed to ensure that indigent litigants have meaningful access to the federal courts,” Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), and that “ ‘no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because ... poverty makes it impossible ... to pay or secure the costs' of litigation.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (alterations in original) (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342, 69 S.Ct. 85, 93 L.Ed. 43 (1948)). Pertinent here, the statute allows “[a] prisoner seeking to bring a civil action or [to] appeal a judgment in a civil action”

[726 F.3d 452]

to proceed “without prepayment of fees or security therefor,” if she can demonstrate that she is unable to pay such fees. 28 U.S.C. § 1915(a)(2).

Congress recognized, however, that “a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Id. (internal quotation marks omitted). And indeed, despite efforts to curtail the opportunity for abusive filings that free court access can provide, “[p]risoner litigation continues to account for an outsized share of filings in federal district courts.” Jones v. Bock, 549 U.S. 199, 203, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal quotation marks omitted). In 1996, in response to the tide of “substantively meritless prisoner claims that have swamped the federal courts,” Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.2000) (original emphasis omitted), Congress enacted the PLRA to “filter out the bad claims and facilitate consideration of the good,” Bock, 549 U.S. at 204, 127 S.Ct. 910.

The PLRA sought to “reduce the quantity and improve the quality of prisoner suits,” Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), in three main ways. First, it introduced an exhaustion requirement, which bars an action by a prisoner complaining of prison conditions “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Second, it established “prescreening” provisions that require a court to dismiss an action or appeal sua sponte if the action is “frivolous” or “malicious,” “fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” See28 U.S.C. §§ 1915(e)(2)(B)(i), (e)(2)(B)(ii), 1915A(b); 42 U.S.C. § 1997e(c). Third, it created a so-called “three strikes” rule to limit the number of lawsuits brought by prisoners with a history of meritless litigation. Under that provision, the language of which tracks that of the prescreening provisions, a prisoner seeking IFP status may not

bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). But “[i]t is important to note that § 1915(g) does not block a prisoner's access to the federal courts. It only denies the prisoner the privilege of filing before he has acquired the necessary filing fee.” Abdul–Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir.2001) (en banc). 1


B. Facts2

Ball is an indigent inmate at SCI–Muncy who suffers from a variety of physical and mental ailments. Among her physical afflictions, she has “serious back problems”

[726 F.3d 453]

and osteoarthritis (App. at 92, 100), she fears that she is losing her vision due to a lack of medical treatment for her eyes, and she is asthmatic. Also, by her own account, she suffers from several mental illnesses that include “PTSD, disassociative [sic] disorder, ... phobias, agoraphobia, severe anxiety, ... cognitive problems and disorders, ... paranoid-schizophrenic, constant worry, frightened[,] scared, ... bipolar, manic depressive, [and] mood swings that are so severe, can't think clearly....” Ball v. SCI Muncy, No. 08–cv–700 (M.D.Pa.) (Doc. 216 (“Magistrate Judge's Report”), pg. 1) (internal quotation marks omitted).

Ball's claims in the present action fall into several broad categories. First, she alleges that she sustained burns, bruises, cuts, and contusions at the hands of prison officials, and that she was subsequently denied medical attention for those injuries. Second, she complains that Dr. Famiglio “allows the prison officials to take her mattress [and] refuse her needed meds” (App. at 100), and that prison officials have also denied her the use of her wheelchair and cane, exacerbating the pain caused by her back problems and degenerative joint disease. Third, Ball alleges that her vision is deteriorating due to a lack of proper medical treatment for her eyes. Fourth, she alleges that she is “living in a room with dangerous black mold” (App. at 94) and that Dr. Famiglio is “continually allowing the prison officials to spray her with o/c (mace)” ( id. at 100), both of which endanger her health because she suffers from chronic asthma. More generally, Ball alleges that prison officials have subjected her to mistreatment in retaliation for the many lawsuits she has filed against SCI–Muncy and its personnel, and that Dr. Famiglio denied her medical treatment because she refused his romantic advances.

Appellees deny all of Ball's allegations, asserting that “Ms. Ball ... has no need for such [medical] care,” (App. at 88) and that she “has available to her emergency medical care,” ( id. at 89). They also state that Ball has been described as a “possible malingerer,” that she “feigns blindness,” and that she “claims back pain ... and numerous other conditions that have not been supported by any objective findings or examinations.” (App. at 88–89.) They also allege that she frequently refuses to leave her cell to see medical caregivers.

C. Procedural History
1. Litigation Prior to the Present Appeals3

The present action is part of a larger pattern of repeated and entirely unsuccessful litigation brought by Ball in the United States District Court for the Middle District of Pennsylvania. We discuss only those actions that are relevant to the appeals now before us.

The germane history began in March 2008, with a complaint filed against SCI–Muncy in which Ball alleged physical assault, denial of medical treatment, and other mistreatment. See Ball v. SCI Muncy, No. 08–cv–0391 (M.D.Pa.). The District Court dismissed that action in December 2008 pursuant to Federal Rule of Civil Procedure 12(b)(6), noting that Ball's failure to exhaust her administrative remedies, as required by the PLRA, was stated in her complaint. See id. (Doc. 36). We affirmed that dismissal in July 2010. See id. (Doc. 44).

Ball filed a second civil action in May 2009, claiming that her constitutional rights were violated because she was not allowed to participate by phone in a hearing on a paternity matter she had filed in state court. See

[726 F.3d 454]

Ball v. Hartman, No. 09–cv–0844, 2010 WL 597401 (M.D.Pa. Feb. 16, 2010). In January 2010, the District Court granted the motion to dismiss filed by one of the defendants, observing that “[t]he complaint lacks any allegations against [the defendant], who is not a prison employee, but rather, a court administrator in Northhampton County.” See Ball...

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1166 practice notes
  • Jones v. Minner, Civil Action No. 17-1837-RGA
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • October 2, 2018
    ...a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions). The Court must accept all factual allegations in a complaint ......
  • Jelen v. Lackawanna State Prison, NO. 3:18-CV-01726
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 26, 2019
    ...from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); 28 U.S.C. § 1915A(b)(1)-(2); Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013). A complaint is frivolous if it lacks an arguable basis either in law or in fact. See Mitchell v. Horn, 318 F.3d 523, 530 ......
  • Irish v. Ferguson, Civil Action No. 12–0174.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 3, 2013
    ...defenses not listed in Rule 12(b), including res judicata, can be decided at the motion to dismiss stage. See Ball v. Famiglio, 726 F.3d 448, 459 n. 16 (3d Cir.2013) (“... a number of affirmative defenses that are not listed in Rule 12(b) could still be made by motion, provided that the bas......
  • Thomas v. Adams, Civil Action Nos. 10–5026 DRD
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 17, 2014
    ...qualified immunity protects any defendant not only from liability but also from the burdens of litigation itself, see Ball v. Famiglio, 726 F.3d 448, 461 (3d Cir.2013) (relying on Vaughn v. U.S. Small Bus. Admin., 65 F.3d 1322, 1326 (6th Cir.1995) ), the Court of Appeals would have jurisdic......
  • Request a trial to view additional results
1174 cases
  • Jones v. Minner, Civil Action No. 17-1837-RGA
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • October 2, 2018
    ...a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions). The Court must accept all factual allegations in a complaint ......
  • Jelen v. Lackawanna State Prison, NO. 3:18-CV-01726
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 26, 2019
    ...from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); 28 U.S.C. § 1915A(b)(1)-(2); Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013). A complaint is frivolous if it lacks an arguable basis either in law or in fact. See Mitchell v. Horn, 318 F.3d 523, 530 ......
  • Irish v. Ferguson, Civil Action No. 12–0174.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 3, 2013
    ...defenses not listed in Rule 12(b), including res judicata, can be decided at the motion to dismiss stage. See Ball v. Famiglio, 726 F.3d 448, 459 n. 16 (3d Cir.2013) (“... a number of affirmative defenses that are not listed in Rule 12(b) could still be made by motion, provided that the bas......
  • Thomas v. Adams, Civil Action Nos. 10–5026 DRD
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 17, 2014
    ...qualified immunity protects any defendant not only from liability but also from the burdens of litigation itself, see Ball v. Famiglio, 726 F.3d 448, 461 (3d Cir.2013) (relying on Vaughn v. U.S. Small Bus. Admin., 65 F.3d 1322, 1326 (6th Cir.1995) ), the Court of Appeals would have jurisdic......
  • Request a trial to view additional results

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