Millhouse v. Heath

• Decision Date: 04 August 2017
• Docket Number: No. 15-2278,15-2278
• Citation: 866 F.3d 152
• Parties: Kareem Hassan MILLHOUSE, Appellant v. Lt S.I.S. Susan V. HEATH; ERB Officer; James Fosnot; Warden Canaan USP; Scott Holzaple; Frederick Entzel; John Does 1-10
• Court: U.S. Court of Appeals — Third Circuit

866 F.3d 152

Kareem Hassan MILLHOUSE, Appellant

v.Lt S.I.S. Susan V. HEATH; ERB Officer; James Fosnot; Warden Canaan USP; Scott Holzaple; Frederick Entzel; John Does 1-10

No. 15-2278

United States Court of Appeals, Third Circuit.

Argued May 10, 2017

Opinion Filed: August 4, 2017

Stephen A. Fogdall (ARGUED), Emily J. Hanlon, Schnader Harrison Segal & Lewis, 1600 Market Street, Suite 3600, Philadelphia, PA 19103, Counsel for Appellant

Timothy S. Judge (ARGUED), Office of United States Attorney, 235 North Washington Avenue, P.O. Box 309, Suite 311, Scranton, PA 18503, Counsel for Appellees

BEFORE: AMBRO, RESTREPO, and COWEN, Circuit Judges

OPINION OF THE COURT

COWEN, Circuit Judge.

Plaintiff Kareem Hassan Millhouse, a prisoner at USP Lewisburg, appeals from an order of the United States District Court for the Middle District of Pennsylvania denying his motion to proceed in forma pauperis ("IFP").

Initially, this Court must decide whether Millhouse is eligible for IFP status on appeal under the Prison Litigation Reform Act ("PLRA"). We conclude that he is eligible, and, accordingly, we grant his motion to proceed IFP on appeal. For purposes of this appeal, Millhouse has only one strike. The Court must look to the date the notice of appeal is filed—and not the date that the Court rules on a prisoner's motion to proceed IFP—in assessing whether a particular dismissal counts as a strike. In short, strikes that accrue before the filing of the notice of appeal count—while strikes that accrue after the notice of appeal is filed do not. While the Bledsoe strike accrued before the filing of Millhouse's notice of appeal, both Doe and Heath II were decided after Millhouse filed his notice of appeal. However, even if we were to count Doe and Heath II (which we do not), Millhouse would still only have two strikes, i.e., Bledsoe and Doe . Because the District Court explicitly and correctly concluded that Millhouse's complaint revealed an immunity defense on its face and dismissed with prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Doe qualifies as a strike. But we also conclude that a dismissal without prejudice for failure to state a claim does not rise to the level of a strike. Accordingly, Heath II does not qualify as a strike.

Turning to the merits of the underlying decision by the District Court, we will vacate the District Court's order and remand for further proceedings.

I.

On August 22, 2014, Millhouse filed a pro se complaint against several prison employees, alleging constitutional violations under the Bivens doctrine. In a May 5, 2015 order, the District Court denied Millhouse's motion for leave to proceed IFP, dismissed his complaint under 28 U.S.C. § 1915(g) without prejudice to refiling if Millhouse submits the full filing fee, and denied his motion for leave to amend (as well as his motion for a preliminary injunction and for leave to add exhibits). In its accompanying memorandum, the District Court identified five strikes pursuant to § 1915(g) and found that Millhouse failed to establish that he was under imminent danger of serious physical injury.

Acting pro se, Millhouse filed a notice of appeal on May 19, 2015. On June 15, 2015, he moved to proceed with this appeal IFP. On November 6, 2015, we stayed the instant case pending Millhouse v. Sage , C.A. No. 14-3845, another appeal filed by Millhouse. On February 11, 2016, the Court issued its opinion in Sage . In this disposition, we determined that only one of the putative strikes cited by the District Court actually qualifies as a strike: Milhouse v. Bledsoe , No. 10-cv-0053, 2010 WL 3940853 (M.D. Pa. Oct. 6, 2010).¹ See Millhouse v. Sage , 639 Fed.Appx. 792, 792-95 (3d Cir. 2016) (per curiam).

While this appeal was stayed, the District Court considered two other pro se actions filed by Millhouse: Milhouse v. Heath , No. 15-cv-00468 (M.D. Pa.) ("Heath II "), and Milhouse v. Doe , No. 16-cv-00146 (M.D. Pa.).

In his Heath II complaint (filed on March 9, 2015), Millhouse claimed that prison officials violated the Eighth Amendment by housing him with another inmate who posed a risk of danger to him. In an October 27, 2015 order, the District Court stated that Millhouse's motion to proceed IFP (construed as a motion to proceed without full prepayment of the filing fee) "is GRANTED," "Milhouse's complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)," "[t]he Clerk of Court shall CLOSE this case," and "[a]ny appeal from this order will be deemed frivolous, not taken in good faith and lacking probable cause." Milhouse v. Heath , No. 15-cv-00468, 2015 WL 6501461, at *5 (M.D. Pa. Oct. 27, 2015). In its accompanying memorandum, the District Court explained that Millhouse did not allege any facts from which it could be found that he was injured by his cellmate. "While Milhouse may assert that he is in danger because of the dangerous nature of his cellmate, this type of danger is speculative and not a basis for relief." Id. at *4. According to the District Court, Millhouse also had no constitutional right to choose his place of confinement or his cellmate. Given Millhouse's failure to set forth any factual allegations giving rise to cognizable claims, "it is impossible to conclude that defendants have deprived Milhouse of any constitutional rights entitling him to monetary damages, and as stated above Milhouse has no entitlement to injunctive relief in the form of a transfer out of the federal prison system." Id. "As such, the present complaint will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as Milhouse fails to state a claim against the defendants upon which relief may be granted." Id. The District Court further explained in its memorandum that the complaint would be dismissed without leave to amend as it would be inequitable and futile to grant Millhouse the opportunity to do so.

On January 27, 2016, Millhouse filed his complaint in Doe against three unidentified Third Circuit judges. According to Millhouse, a Third Circuit opinion falsely asserted that he had confessed to committing a crime, and this opinion was accessed by other inmates on a law library computer, who then harassed and assaulted Millhouse. In a February 24, 2016 order, the District Court stated that Millhouse's motion to proceed IFP (again construed as a motion to proceed without full prepayment of the filing fee) "is GRANTED," "Milhouse's complaint is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) ," "[t]he Clerk of Court shall CLOSE this case," and "[a]ny appeal from this order will be deemed frivolous, not taken in good faith and lacking probable cause." (A285.) In a footnote, the District Court explained that Millhouse "has only named defendants who have absolute immunity" and that it would be inequitable to grant him an opportunity to file an amended complaint against those defendants. (A285 n.1.) According to the District Court's memorandum, the judges were entitled to absolute immunity from monetary damages because Millhouse's claims were based on actions taken in the exercise of their official duties. Noting that Millhouse appeared to claim he was in danger of future assaults and sought a transfer out of the federal prison system, the District Court also concluded that he clearly failed to state a cognizable claim. Millhouse did not allege any facts indicating that prison officials failed to protect him, and he also did not name any prison officials as defendants in his complaint. A prisoner, in turn, has no justifiable expectation that he will be incarcerated in a particular facility. "While there is no indication that Milhouse initiated this lawsuit with malicious intentions, the complaint is suitable for summary dismissal under the in forma pauperis statute because it fails to articulate an arguable factual or legal basis under federal law." Milhouse v. Doe , No. 16-cv-00146, 2016 WL 727619, at *4 (M.D. Pa. Feb. 24, 2016). Acknowledging the general principle that failure to state a claim under the Federal Rules of Civil Procedure is not tantamount to legal frivolity pursuant to § 1915(g), the District Court found that "[t]he fatal defect in this complaint is not merely that it fails to state a claim under Bivens , but that it describes neither conduct nor injury that implicates the Constitution or other federal law." Id. It insisted that service of process would thereby represent a waste of scarce judicial resources.

The stay of this appeal was lifted on April 5, 2016. Subsequently, the motion to proceed IFP was referred to a merits panel, and the Court indicated that it would benefit from the appointment of counsel to address the following issues:

(1) whether the dismissal in [ Heath II ] qualifies as a strike for purposes of 28 U.S.C. § 1915(g) ; compare McLean v. United States , 566 F.3d 391, 396 (4th Cir. 2009) (cited in Ball v. Famiglio , 726 F.3d 448, 460 n.17 (3d Cir. 2013) ), with Orr v. Clements , 688 F.3d 463, 465 (8th Cir. 2012) ; (2) whether the dismissal in [ Doe ] qualifies as a strike; see Ball , 726 F.3d at 460-63 ; (3) if these dismissals qualify as strikes, whether their timing precludes Appellant from proceeding in forma pauperis in this appeal; (4) if this Court decides that Appellant has three strikes, whether he is under imminent danger of serious physical injury for purposes of § 1915(g) ; and (5) if this Court decides that Appellant qualifies for in forma pauperis status on appeal, whether the District Court's decision on appeal should be vacated.

(A18-A19.)² Millhouse did not object, and Stephen A. Fogdall, Esq., and Emily J. Hanlon, Esq. were appointed as his pro bono counsel.³

II.

The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We possess appellate jurisdiction under 28 U.S.C. §...