Brown v. Sage
| Citation | 903 F.3d 300 |
| Decision Date | 07 September 2018 |
| Docket Number | 17-1527,Nos. 17-1222,17-1714,s. 17-1222 |
| Parties | 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 |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
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
Before: SMITH, Chief Judge, CHAGARES, FUENTES, Circuit Judges
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.
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.
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:
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 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
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 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 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 enough to convince us to abandon the long-standing principle that we are bound to follow the precedent of our Court.
Having established that we will follow our...
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