Kareem Millhouse v. Susan Heath, et al

Filing

PRECEDENTIAL OPINION Coram: AMBRO, RESTREPO and COWEN, Circuit Judges. Total Pages: 34. Judge: COWEN Authoring, Judge: AMBRO Dissenting in part and Concurring in the judgment.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-2278
________________
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
______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 1-14-cv-01637)
Honorable Sylvia H. Rambo, District Judge
______________
Argued May 10, 2017
BEFORE: AMBRO, RESTREPO, and COWEN, Circuit
Judges
(Opinion Filed: August 4, 2017)

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______________
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
______________
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

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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)

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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
(M.D. Pa. Oct. 6, 2010).1 See Millhouse v. Sage, 639 F. App’x
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
1

It appears that Millhouse has spelled his name as
“Milhouse.” Although the District Court also used this spelling,
his prison records spelled his name as “Millhouse.”

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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-cv00468, 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

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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

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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.

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(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. § 1291. We exercise plenary
review with respect to the proper interpretation of the PLRA and
its three strikes rule. See, e.g., Ball, 726 F.3d at 455 n.11.
III.
28 U.S.C. § 1915(g) limits a prisoner’s ability to obtain
IFP status:
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 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
2

Because we determine that Millhouse does not have
three strikes, we need not (and do not) decide “whether he is
under imminent danger of serious physical injury for purposes
of § 1915(g).”
3

We express our thanks to Mr. Fogdall and Ms. Hanlon
for their excellent work in this matter.

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serious physical injury.
In Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013), we set forth
our general approach for deciding what constitutes a strike under
this provision of the PLRA:
Thus, we adopt the following rule: 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, including (but not
necessarily limited to) 28 U.S.C. §§ 1915A(b)(1),
1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule
12(b)(6) of the Federal Rules of Civil Procedure.
Id. at 126.
“The ‘three strikes’ provision was ‘designed to filter out
the bad claims and facilitate consideration of the good.’”
Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015) (quoting
Jones v. Bock, 549 U.S. 199, 204 (2007)); see also, e.g., AbdulAkbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc)
(noting that Congress enacted PLRA to limit filing of frivolous
and vexatious prisoner lawsuits). Partially abrogating our ruling
in Ball v. Famiglio, 726 F.3d 448 (3d Cir. 2013) (in which we
held, inter alia, that a strike does not accrue until the dismissal
has been affirmed on appeal or the opportunity to appeal has
otherwise passed, id. at 464-65), the Supreme Court concluded
that the refusal to treat a prior dismissal as a strike because of a
pending appeal (at least where the prisoner is not seeking to
appeal from a “third-strike trial-court dismissal”) would result in
“a leaky filter,” Coleman, 135 S. Ct. at 1764-65. While the

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statutory scheme thereby seeks to reduce the likelihood of
frivolous lawsuits (while improving the quality of the remaining
prisoner actions), it would run counter to the PLRA’s goals if
our approach “will inevitably lead to more, and perhaps
unnecessary, litigation on whether or not a particular dismissal
constitutes a strike.” Byrd, 715 F.3d at 126. Accordingly, the
Byrd Court adopted a bright-line rule for this determination. Id.
We did so while recognizing that, “[i]f courts are permitted to
consider the nature of the dismissal and determine whether the
dismissal fits within the language of § 1915(g), then there is less
likelihood that a dismissal intended as a strike will slip through
the cracks created by a categorical rule that bars courts from
undertaking such an examination.” Id.
A.

Strikes and the Notice of Appeal

It is undisputed that, while Millhouse filed his notice of
appeal on May 19, 2015 (and his IFP motion on June 15, 2015),
his second and third putative strikes—Heath II and Doe—
accrued on October 27, 2015 and February 24, 2016. On
November 6, 2015, this appeal was stayed pending our
disposition in Sage. Sage was decided on February 11, 2016,
and this Court lifted its stay on April 5, 2016. Millhouse’s
motion for leave to proceed with his appeal IFP still remains
pending. According to Appellees and Judge Ambro’s partial
dissent and concurrence, these dismissals count as strikes for
purposes of this appeal because they both accrued before this
Court had granted the IFP motion. Unlike Appellees, Judge
Ambro believes that we should then equitably toll these two
strikes, and he accordingly would grant Millhouse IFP status.
However, we must look to the date the notice of appeal is
filed—and not the date that we grant a prisoner’s motion to
proceed IFP—in assessing whether a particular dismissal counts

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as a strike. Strikes that accrue before the filing of the notice of
appeal count as strikes—while strikes that accrue after the notice
of appeal is filed do not. Because the second and third putative
strikes accrued after Millhouse filed his notice of appeal, they
could not count as strikes for purposes of this appeal.
We begin, as we must, with the statutory language. See,
e.g., Abdul-Akbar, 239 F.3d at 313 (“‘Our task is to give effect
to the will of Congress, and where its will has been expressed in
reasonably plain terms, that language must ordinarily be
regarded as conclusive.’” (quoting Negonsott v. Samuels, 507
U.S. 99, 104 (1993))). Under the plain language of the PLRA, it
is the filing of the notice of appeal that “triggers” the three
strikes rule. Specifically, § 1915(g) provides that a prisoner
shall in no event “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,” brought an action or appeal that
was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted. This
language indicates that a prisoner like Millhouse cannot “appeal
a judgment in a civil action or proceeding” under the IFP statute
if he or she has accrued strikes “on 3 or more prior occasions.”
In other words, these strikes must have accrued “prior” to the
“appeal [of] a judgment in a civil action or proceeding.” A
prisoner (or any other litigant) “appeal[s] a judgment in a civil
action or proceeding” by filing a notice of appeal. Federal Rule
of Appellate Procedure 3(a)(1) specifies that “[a]n appeal
permitted by law as of right from a district court to a court of
appeals may be taken only by filing a notice of appeal with the
district clerk within the time allowed by Rule 4.” In general,
“the notice of appeal required by Rule 3 must be filed with the
district clerk within 30 days after entry of the judgment or order
appealed from” (or “within 60 days” if one of the parties is the

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United States, a United States agency, a United States officer or
employee sued in an official capacity, or a current or former
United States officer or employee sued in an individual capacity
for an act or omission occurring in connection with duties
performed on behalf of the United States). Fed. R. App. P.
4(a)(1); see also, e.g., Bowles v. Russell, 551 U.S. 205, 214
(2007) (“[T]he timely filing of a notice of appeal in a civil case
is a jurisdictional requirement.”). As Millhouse aptly explains,
“[i]t follows that a prisoner may not ‘appeal a judgment in a
civil action or proceeding’ in forma pauperis if the prisoner has
accrued 3 strikes prior to filing the notice of appeal.”4
(Appellant’s Reply Brief at 4.)
None of the cases cited by Appellees (or the partial
dissent and concurrence) actually considered the meaning of §
1915(g) and its “appeal a judgment in a civil action or
proceeding” language. Accordingly, they did not resolve the
4

In fact, we have held that a notice of appeal cannot be
rejected merely because the filing fee has not been paid. See,
e.g., Lee v. Superintendent Houtzdale SCI, 798 F.3d 159, 16465 (3d Cir. 2015). If a notice of appeal may not be rejected on
the basis that the litigant failed to include the requisite fee, the
subsequent grant of an IFP application likewise should not affect
the timing of an “appeal [of] a judgment in a civil action or
proceeding.” After all, the whole point of IFP status is to allow
indigent litigants to appeal “without prepayment of fees.” 28
U.S.C. § 1915(a); see also, e.g., Ball, 726 F.3d at 452 n.1 (“The
prisoner is still required to pay the costs of her action or appeal,
a departure from pre-PLRA practice, see Denton v. Hernandez,
[504 U.S. 25, 27 (1992)], paying an initial partial fee followed
by installment payments until the entire fee is paid. 28 U.S.C. §
1915(b)(1).”).

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specific question of whether we should look to the date of filing
of the notice of appeal or the date that we rule on a prisoner’s
IFP motion in assessing whether a dismissal counts as a strike.
28 U.S.C. § 1915(a)(1) provides that “any court of the United
States may authorize the commencement, prosecution or defense
of any suit, action or proceeding, civil or criminal, or appeal
therein, without prepayment of fees or security therefor, by a
person who submits an affidavit that includes a statement of all
assets such prisoner possesses that the person is unable to pay
such fees or give security therefor.” Relying on this provision,
we 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 v. Harrisburg Cnty. Police
Dep’t, 91 F.3d 451, 458 & nn.12-13 (3d Cir. 1996). “Thus,
submitting an in forma pauperis complaint to the clerk does not
result in commencement of the litigation.” Id. at 458 n.13; see
also Gibbs v. Ryan, 160 F.3d 160, 162 (3d Cir. 1998) (“His
complaint was filed, and his action was ‘brought’ when his
motion to proceed in forma pauperis was granted.” (citing
Urrutia, 91 F.3d at 458; Oatess v. Sobolevitch, 914 F.2d 428,
430 n.1 (3d Cir. 1990))); Oatess, 914 F.2d at 429 n.1 (“When a
complaint is accompanied by a motion to proceed in forma
pauperis, rather than by payment of a filing fee, the complaint is
not docketed, and it is therefore not filed, until the motion has
been granted.”). However, “[w]e determined [in Urrutia] that,
even though the limitations period ran out, ‘[t]his was not [his]
fault[: h]e submitted his in forma pauperis complaint a full two
months before the statute of limitations was due to expire.’”
(Partial Dissent & Concurrence at 8 (quoting Urrutia, 91 F.3d at
458).) “Because of ‘the delay in making a § 1915(d)
determination . . . we [held] that, once a plaintiff submits an in

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forma pauperis complaint,’ the statute of limitations would be
equitably tolled until the court grants the IFP application.”5 (Id.
(quoting Urrutia, 91 F.3d at 459).)
In contrast, this Court has, at least implicitly, indicated
that we must look to the filing of the notice of appeal as the
proverbial trigger for deciding whether dismissals count as
strikes. Tallying the plaintiff’s strikes, we observed in Ball that,
out of the ten purported strikes, three of the dismissals did not
count as strikes because they were not final “when Ball filed the
appeals before us now.”6 Ball, 726 F.3d at 465. “Three others
do not count as strikes for present purposes because the actions
were dismissed after these appeals were filed.” Id. at 466
(footnote omitted). This Court had not yet ruled on Ball’s IFP
motion; in fact, the Ball Court had to decide whether or not to
grant her motion. See, e.g., id. at 451. We thereby clearly
5

Similarly, the issue in Oatess was whether a district
court could dismiss a plaintiff’s complaint sua sponte for failure
to state a claim after the plaintiff was granted IFP status but
before service of process occurred. Oatess, 914 F.2d at 429.
Addressing an appeal where the IFP motion was actually
granted on the same day it was filed, Gibbs considered “the
narrow question” of whether § 1915(g) requires the district court
to revoke IFP status granted before the enactment of the PLRA.
Gibbs, 160 F.3d at 162.
6
We again note that the Supreme Court abrogated Ball
in part, generally holding that “a prior dismissal . . . counts as a
strike even if the dismissal is the subject of an appeal.”
Coleman, 135 S. Ct. at 1763. But see id. at 1764-65 (refusing to
resolve question of whether plaintiff would have three strikes if
he or she were attempting to appeal from dismissal of third
complaint).

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meant that the discounted dismissals occurred after Ball filed his
notices of appeal. While we did not specifically discuss the
issue now before us (and went on to conclude that Ball had three
strikes at the time she commenced her appeals, id. at 466), Ball’s
tallying of strikes clearly weighs in Millhouse’s favor.
According to Appellees and Judge Ambro’s partial
dissent and concurrence, the term “bring” under § 1915(g) refers
to the time when an IFP motion is granted. However, § 1915(g)
distinguishes between “bring[ing] a civil action,” on the one
hand, and “appeal[ing] a judgment in a civil action or
proceeding,” on the other hand. “The word ‘appeal’ does occur
as the object of the verb ‘brought’ later in Section 1915(g), in
reference to a prisoner having ‘brought an action or appeal’ on 3
prior occasions and accrued strikes as a result” (Appellant’s
Reply Brief at 4 n.3). In O’Neal v. Price, 531 F.3d 1146 (9th
Cir. 2008), the Ninth Circuit (in a majority opinion) rejected the
theory that the prisoner’s prior actions were not “brought” under
this subsequent language (and thereby could not constitute
strikes under § 1915(g)) “because he merely filed applications
for in forma pauperis status which were subsequently denied,”
id. at 1151. Significantly, it concluded that “a plaintiff has
‘brought’ an action for the purposes of § 1915(g) when he
submits a complaint and request to proceed in forma pauperis to
the court.” Id. at 1152. Furthermore, this Court (sitting en
banc) recognized that “the word ‘bring’ in this context plainly
refers to the time when the civil action is initiated.” AbdulAkbar, 239 F.3d at 313 (citing Gibbs, 160 F.3d at 162). The
courts thereby must consider if the prisoner is under imminent
danger at the time the complaint is filed (as opposed to the time
of the alleged incident). Id. at 313-15. Likewise, the Fifth
Circuit explained that “we must determine if danger exists at the
time the plaintiff seeks to file his complaint or notice of appeal

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IFP.” Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998) (per
curiam) (emphasis in original).
We believe that our approach is consistent with both
legislative intent and basic principles of fairness. Congress
enacted the PLRA “to limit the filing of frivolous and vexatious
prisoner lawsuits,” Abdul-Akbar, 239 F.3d at 314, and the
Supreme Court has indicated that § 1915(g) did not create a
“leaky filter,” Coleman, 135 S. Ct. at 1764. Nevertheless, we
find nothing to suggest that Congress designed the statutory
scheme to penalize prisoners for “the delay inherent” in the
process of disposing of their IFP motions, Urrutia, 91 F.3d at
458 n.13. After all, the disposition of an IFP motion is often “a
time-consuming process” that is, in large part, outside of the
control of the pro se litigant. Id. At the very least, the Court
does need time to make an indigency determination and to
screen the prisoner’s filing history for strikes. In turn, IFP
motions should not be treated differently based on how quickly
this Court may dispose of them. “To hold otherwise would . . .
mean that similar in forma pauperis [motions] would be treated
differently on the basis of how quickly [the Court] acted on
them.” Id. at 459. In fact, the partial dissent and concurrence
acknowledges that it would be overly prejudicial to bar
Millhouse access to this Court given the present circumstances.
“Millhouse filed a notice of appeal and an IFP request in May
and June 2015, respectively; the Clerk’s Office took no action
on the IFP request until it stayed the case five months later in
November 2015 (pending the resolution of Sage); and
[according to Judge Ambro] two strikes accrued during the
Court’s delay and mandated stay of the proceedings.” (Partial
Dissent & Concurrence at 8.) In other words, the purported
second and third strikes “only accrued for the purposes of this

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appeal due to our Court’s delay.”7 (Id.)
Based on our ruling in Urrutia, the partial dissent and
concurrence proceeded to “equitably consider the date of
commencement for three-strikes purposes as June 15 (when
Millhouse filed his IFP request) due to our Court’s delay.” (Id.
at 9.) However, we question whether the equitable tolling
doctrine (or similar concepts) could apply in this context. This
appeal (unlike Urrutia) does not really implicate a statute of
limitations or some sort of time limit that may be “tolled.” It is
also, at the very least, questionable whether it is proper, on the
one hand, to interpret the PLRA so that strikes accrued after the
filing of the notice of appeal but before the Court grants the IFP
motion generally trigger the three strikes rule while, on the other
hand, concluding that these strikes do not “really count” based
on our own assessment of the specific circumstances of the
proceeding. (See Oral Argument Transcript at 39-40 (“It could
be an argument for equitable tolling. But equitable tolling,
under 1915, where Congress has stated that in no, in no case
should an appeal proceed without the court authorizing
commencement, that says to me that equitable tolling shouldn’t
apply in that situation . . . .) (Counsel for Appellees).) Instead,
we read the statutory scheme—given the statutory language,
7

In addition to the concerns of basic fairness articulated
above, there is a practical obstacle to Appellees’ position that we
should determine eligibility for IFP status on the date the Court
rules on a prisoner’s motion to proceed IFP. Appellees’ position
would render such motions extremely time-sensitive. That is,
when the Court decides to grant IFP status, we would need to
rule on the issue immediately. If there was any lapse between
the determination and the ruling, we would have to return to the
issue and verify that IFP status was still warranted.

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existing case law, the purposes of the legislation, and basic
considerations of fairness—as requiring us to 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).
Because the second and third putative strikes accrued
after Millhouse filed his notice of appeal, they could not count
as strikes for purposes of this appeal. Millhouse has only one
strike and is eligible for IFP status on appeal.
B.

Heath II and Doe

Even if we were to count Doe and Heath II (which we do
not), Millhouse would still only have two strikes—Bledsoe and
Doe. Accordingly, he is still eligible for IFP status on appeal.
In Sage, we determined that Bledsoe (which accrued before the
filing of his notice of appeal) qualifies as a strike. Sage, 639 F.
App’x at 793-94. Because the District Court explicitly and
correctly concluded that the 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 §
1915(e)(2)(B)(ii), Doe also qualifies as a strike. However, we
adopt the Fourth Circuit’s approach in which a dismissal without
prejudice for failure to state a claim does not rise to the level of
a strike. Under this rule, Heath II thereby does not qualify as a
strike.
Under § 1915(e)(2)(B)(ii), the court shall dismiss the case
at any time if it determines that the action “fails to state a claim
on which relief may be granted.” In Ball, we held that a
dismissal based on immunity does not constitute a strike, unless
the district court “explicitly and correctly concludes that the
complaint reveals the immunity defense on its face and

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dismisses [with prejudice] the unexhausted complaint under
Rule 12(b)(6) or expressly states that the ground for the
dismissal is frivolousness.” Ball, 726 F.3d at 463 & n.20. Ball,
however, did not address a dismissal under § 1915(e)(2)(B)(ii).
We now apply Ball to a complaint dismissed based on immunity
under § 1915(e)(2)(B)(ii). As in Ball, such a dismissal is a
strike only if the dismissal is with prejudice and the “court
explicitly and correctly concludes that the complaint reveals the
immunity defense on its face.” Id. at 463. Millhouse asserts
that Doe “was not ‘correct,’ and that under a liberal pleading
standard he should have the opportunity to amend his complaint
to include non-immune defendants” (specifically the prison
officials who allegedly allowed inmates to access the Third
Circuit opinion on the law library’s computers). (Partial Dissent
& Concurrence at 7.) Purportedly, “you cannot ascertain from
the face of the dismissal whether the district court evaluated if
the pleading could be amended to state a claim against nonimmune defendants.” (Oral Argument Transcript at 20 (Counsel
for Appellant).) In Doe, the District Court “explicitly”
dismissed with prejudice Millhouse’s complaint for “‘fail[ure] to
state a claim’” pursuant to “a statutory provision or rule that is
limited solely to dismissals for [such a reason],” namely, §
1915(e)(2)(B)(ii). Byrd, 715 F.3d at 126. It did so because it
“explicitly and correctly conclud[ed] that the complaint reveals
the immunity defense on its face.” Ball, 726 F.3d at 463
(footnote omitted). The three unidentified Third Circuit judges
(the only persons to be named as defendants in the complaint)
were entitled to absolute judicial immunity from monetary
damages. The District Court further explained that Millhouse
failed to state a cognizable claim with respect to his additional
request for injunctive relief (i.e., a transfer out of the federal
prison system). According to the District Court, it would be
inequitable to grant him an opportunity to file an amended

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complaint. Noting that a prisoner has no justifiable expectation
that he will be incarcerated in a particular prison, the District
Court went on to explain that “[t]he complaint clearly fails to
state a failure to protect claim.” Doe, 2016 WL 727619, at *3.
“Milhouse has not alleged any facts from which it could be
concluded that prison officials failed to protect him.” Id. In
fact, the District Court made it clear the complaint did not
merely fail to state a claim under Bivens; “it describes neither
conduct nor injury that implicates the Constitution or other
federal law” (and service of process would thereby constitute a
waste of increasingly scarce judicial resources). Id. at *4. “And
if Millhouse takes umbrage with the District Court’s decision
regarding his leave to amend, the appropriate path is to appeal
that decision directly (which he has not done).” (Partial Dissent
& Concurrence at 7.)
In McLean, the Fourth Circuit’s majority opinion
considered at some length the question of “whether a dismissal
without prejudice for failure to state a claim counts as a strike
under § 1915(g).” McLean, 566 F.3d at 394. It held that “it
does not.” Id. Appellees vigorously contest this holding, and,
for our part, we agree with Judge Ambro that most circuits have
indicated that such dismissals do qualify as strikes. Orr v.
Clements, 688 F.3d 463, 465-66 (8th Cir. 2002); Paul v.
Marberry, 658 F.3d 702, 704-06 (7th Cir. 2011); Smith v.
Veterans Admin., 636 F.3d 1306, 1313 (10th Cir. 2011);
O’Neal, 531 F.3d at 1154-55; Day v. Maynard, 200 F.3d 665,
667 (10th Cir. 1999) (per curiam); see also McLean, 566 F.3d at
402-10 (Shedd, J., concurring in part and dissenting in part).
Nevertheless, the Fourth Circuit persuasively disposed of this
contrary case law. It noted, for instance, that the Tenth Circuit
offered no analysis for its holding. McLean, 566 F.3d at 398
(addressing Day). In O’Neal, the Ninth Circuit (in addition to

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rejecting the prisoner’s theory that his prior actions were not
“brought” by him because he merely filed IFP applications that
were subsequently denied) concluded that a dismissal without
prejudice may constitute a strike because there is nothing in the
plain language of § 1915(g) distinguishing between dismissals
with and dismissals without prejudice. O’Neal, 531 F.3d at
1154. The McLean approach, however, is based on the actual
language of the PLRA. “[It] does not read an additional
requirement into the statute that was not already implied by
Congress’ use of the familiar phrase ‘dismissed . . . [for]
fail[ure] to state a claim.’ An unqualified dismissal for failure to
state a claim is presumed to operate with prejudice; the addition
of the words ‘with prejudice’ to modify such a dismissal is
simply not necessary.” McLean, 566 F.3d at 398-99 (footnote
omitted); see also Grayson v. Mayview State Hosp., 293 F.3d
103, 110 (3d Cir. 2002) (noting that PLRA employs language
borrowed from Rule 12(b)(6)). The PLRA, although not “a
leaky filter,” Coleman, 135 S. Ct. at 1764, also does not use “a
meat-axe approach” to achieve its goal of stemming the flood of
frivolous prisoner litigation and conserving judicial resources,
McLean, 566 F.3d at 398.
Furthermore, this Court’s own ruling in Ball clearly
weighs in favor of McLean. Even Appellees acknowledge that
Ball “held that a dismissal based on the affirmative defense of
failure to exhaust may be a strike when the applicability of the
defense is clear from the face of the complaint and the dismissal
is with prejudice.” (Appellees’ Brief at 19-20.) The Ball Court
adopted the same “with prejudice” requirement with respect to
dismissals based on the defendant’s immunity. See Ball, 726
F.3d at 463 n.20. There would appear to be no real difference
between a dismissal for failure to state a claim without prejudice
and a dismissal of an unexhausted complaint without prejudice

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(or a dismissal without prejudice on immunity grounds). In the
end, we thereby adopted (and expanded on) the Fourth Circuit’s
line of reasoning:
The second part of the rule requires that the
dismissal based on failure to exhaust, pursuant to
Rule 12(b)(6), be with prejudice. “We assume
that Congress is aware of existing law when it
passes legislation.” Miles v. Apex Marine Corp.,
[498 U.S. 19, 32 (1990)], and Congress used the
language of Rule 12(b)(6) in the PLRA’s three
strikes provision. See 28 U.S.C. § 1915(g) (strike
accrues on dismissal of an action that “fails to
state a claim upon which relief may be granted”).
A dismissal for failure to state a claim under Rule
12(b)(6) is presumed to be a judgment on the
merits unless otherwise specified. See Federated
Dep’t Stores, Inc. v. Moitie, [452 U.S. 394, 399
n.3 (1981)] (“The dismissal for failure to state a
claim under Federal Rule of Civil Procedure
12(b)(6) is a judgment on the merits.” (citation
and internal quotation marks omitted)). “It
follows that the type of prior dismissal for failure
to state a claim contemplated by § 1915(g) is one
that constituted an adjudication on the merits and
prejudiced the filing of a subsequent complaint
with the same allegations.” [McLean, 566 F.3d at
396]. By contrast, a dismissal for failure to
exhaust without prejudice is not an adjudication
on the merits. See Cooter & Gell v. Hartmarx
Corp., [496 U.S. 384, 396 (1990)] (“[D]ismissal .
. . without prejudice is a dismissal that does not
operat[e] as an adjudication upon the merits. . . .”

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(alterations in original) (citing and quoting Fed.
R. Civ. P. 41(a)(1)) (internal quotation marks
omitted)). Consequently, a dismissal for failure to
state a claim on exhaustion grounds without
prejudice “does not fall within the plain and
unambiguous meaning of § 1915(g)’s unqualified
phrase “dismissed . . . [for] fail[ure] to state a
claim’” and “does not count as a strike.”
McLean, 566 F.3d at 397 (alterations in original).
The District Court did not state that any of the
dismissals at issue in these appeals were without
prejudice, and so they are presumed to be with
prejudice, and they “operate[ ] as an adjudication
on the merits.” Fed. R. Civ. P. 41(b).
Id. at 460 n.17.
Appellees argue that Heath II constitutes a strike under
McLean because the District Court expressly determined that
the complaint failed to state a claim upon which relief could be
granted, which then acted as an adjudication on the merits when
it denied leave to file an amended pleading. (See also Partial
Dissent & Concurrence at 6 (concluding that Heath II is strike
because, by dismissing without leave to amend, it effectively
barred Millhouse from filing subsequent complaint with same
allegations).)
However, the District Court’s own order
expressly dismissed the complaint without prejudice:
“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).” Heath, 2015 WL
6501461, at *5. Even if the District Court may have
inadvertently added this “without prejudice” language, it is not
appropriate for us to treat a disposition including such

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ambiguous (or even contradictory) language as a strike or to
undertake a detailed analysis to ascertain what the District Court
may have really meant to say. After all, we adopted in Byrd a
bright-line rule in deciding what constitutes a strike. Byrd, 715
F.3d at 126. While this might mean “that a dismissal intended
as a strike will slip through the cracks,” the Court will at least
limit the likelihood of “more, and perhaps unnecessary,
litigation on whether or not a particular dismissal constitutes a
strike.” Id. We also note that prisoners, who typically act pro
se, are entitled to take dismissals “at face value” and “should not
be required to speculate on the grounds the judge could or even
should have based the dismissal on.” Paul, 658 F.3d at 706.
C.

The District Court’s IFP Ruling

Granting the motion to proceed IFP on appeal, we will
vacate the District Court’s denial of Millhouse’s IFP motion and
remand for further proceedings. Appellees concede that, should
we grant IFP status and reach the merits of the underlying
District Court decision, this decision should be vacated. With
the exception of Bledsoe, the cases cited by the District Court do
not constitute strikes under § 1915(g). See Sage, 639 F. App’x
at 793-95. Millhouse had only one strike when he filed his
complaint on August 22, 2014 (and when the District Court
denied his motion to proceed IFP on May 4, 2015).
IV.
We grant Millhouse’s motion to proceed IFP on appeal.
We will vacate the District Court’s order denying his IFP
motion and remand for further proceedings consistent with this
opinion.

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Kareem Hassan Millhouse v. Lt. S.I.S. Susan V. Heath, et al.
No. 15-2278
_________________________________________________
AMBRO, Circuit Judge, dissenting in part and concurring in
the judgment
I concur with the result set by my colleagues, but I
take a different path in getting there. I do so because I
believe that the statutory language, and our comments on it,
are clear that an in forma pauperis action begins under 28
U.S.C. § 1915 when a court grants the IFP request and not
when the appeal is filed. Because we have not granted that
request of Millhouse, we must determine if he has accrued
two more strikes since his appeal. Because he has, he
normally would be barred from proceeding with IFP status in
this appeal, as he has three strikes that typically forestall
filing further claims absent paying full filing fees. However,
I believe our precedent in Urrutia v. Harrisburg County
Police Department, 91 F.3d 451 (3d Cir. 1996), controls this
case and allows us to equitably toll the two strikes that
Millhouse has accrued pending our decision as to his IFP
request.
Thus, while I disagree with my colleagues’
interpretation of the Prisoner Litigation Reform Act
(“PLRA”) and their conclusion that Heath II does not count
as a strike, I agree that Millhouse only has one strike for the
purpose of this appeal and thus his case should be remanded.
DISCUSSION
A.

An IFP Action Commences with the Grant of
IFP Status

Section 1915(g) provides

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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 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.
(emphases added). Millhouse filed his notice of appeal on
May 26, 2015 and his request for IFP status on June 15, 2015.
His subsequent strikes accrued after those dates when his
complaints were dismissed—October 27, 2015 and February
24, 2016. See Coleman v. Tollefson, 135 S. Ct. 1759 (2015)
(strike accrues at dismissal). So when did Millhouse “bring”
this appeal under the meaning of the PLRA? Was it May 26,
2015 when he filed it, or has it not yet begun because we have
not granted him IFP status? This consideration sets up how to
apply the three-strikes rule, as those strikes must constitute
“prior occasions . . . that [were] dismissed.” 28 U.S.C.
§ 1915(g) (emphasis added). If May 26, 2015 is the
beginning date, the two strikes he has accrued since then
cannot apply to bar him IFP status. On the other hand, if this
appeal has yet to begin because his request for IFP status is
pending, then those two strikes trigger the three-strikes rule.
The answer, I believe, lies in § 1915(a), which creates
the right to bring an IFP action. It provides that “any court of
the United States may authorize the commencement . . . of
any suit, action, or proceeding, . . . or appeal therein, without
any prepayment of fees,” brought by an indigent prisoner.
The “authorize the commencement” language suggests that an
IFP action is not “brought” under the PLRA simply by filing

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a complaint or appeal.
because

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Indeed, we have explained that

[o]nly the court may authorize the
commencement of any suit without
prepayment of fees[,] . . . submitting an in
forma pauperis complaint to the clerk does
not result in commencement of the litigation .
. . [because] a determination of whether a
prisoner has exceeded the allowable number
of frivolous or other inadequate in forma
pauperis actions will have to be made before
the litigation may commence.
Urrutia, 91 F.3d at 458 n.13 (alterations and quotations
omitted). We have also indicated in a separate three-strikes
case that the prisoner’s “action was ‘brought’ when his
motion to proceed in forma pauperis was granted.” Gibbs v.
Ryan, 160 F.3d 160, 162 (3d Cir. 1998); see Oatess v.
Sobolevitch, 914 F.2d 428, 429 n.1 (3d Cir. 1990) (“When a
complaint is accompanied by a motion to proceed in forma
pauperis, rather than by payment of a filing fee, the complaint
is not docketed, and it is therefore not filed, until the motion
has been granted.”). The reasoning is that an IFP action
cannot possibly commence until a court both is able to make
an “indigency determination” and screen the applicant’s filing
history for three-strikes status. See Urrutia, 91 F.3d at 458
n.13; see also Roman v. Jeffes, 904 F.2d 192, 194-96 (3d Cir.
1990) (explaining that § 1915 functions as a screening
process for IFP applications). If the IFP applicant passes this
initial review as § 1915 requires, the request will be granted,
the court will “authorize the commencement” of the suit or
appeal, and the action or appeal then will be “brought.” To
me the statute is clear as to this process.

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My colleagues believe that an IFP action on appeal
begins on filing the notice of appeal. But they hang their hat
on § 1915(g), which does not exist in a vacuum. Rather,
§ 1915(a) is the statute’s subsection that establishes the right
of an indigent prisoner to avail himself in federal court
without paying the requisite filing fee. It details the process
of how such a prisoner can claim that right. 28 U.S.C.
§ 1915(a)(1) and (2) (a prisoner seeking IFP status shall
submit “an affidavit that includes a statement of all assets
such prisoner possesses . . . [and] the nature of the action,
defense or appeal and affiant’s belief that the person is
entitled to redress,” as well as “a certified copy of the trust
fund account statement . . . for the prisoner for the 6-month
period immediately preceding the filing of the complaint or
notice of appeal . . . .”). Section 1915(g), on the other hand,
merely establishes the three-strikes rule, which is nothing
more than a limitation on who can claim that right. There is
no mention in the statute, and the majority points to none, that
the three-strikes rule was intended to eclipse the procedural
mandate of § 1915(a).
Subsection 1915(g) serves only to exclude serial filers
from IFP-status eligibility, a determination that a court will
make and, if favorable to the petitioner, then “authorize” the
“commencement” of the IFP action under § 1915(a) if the
applicant is not a three-strikes offender. To hold otherwise
makes § 1915(g) toothless: its purpose is to screen ineligible
IFP applicants. Yet the majority would have a potentially
three-strikes-offending prisoner be able to initiate an action
before that screening process was complete simply by filing a
complaint or a notice of appeal. That is inconsistent with
both the purpose of § 1915(g) and Congress’s established
process in claiming the right under § 1915(a). Per the PLRA,

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an IFP action begins when a court determines that an indigent
prisoner seeking IFP-status is eligible to do so.1
B. Millhouse Has Three Strikes
Thus, given that Millhouse’s appeal has yet to
commence for IFP purposes because there has been no
decision by this Court to grant him IFP status, we next must
decide if he has accrued two additional strikes during the
pendency of his IFP application.
The first questionable strike relates to the dismissal
without prejudice of Millhouse’s complaint in Heath II.
Millhouse claimed there that prison officials had violated his
Eighth Amendment rights by housing him with a dangerous
cellmate and failing to protect him. Because Millhouse only
alleged fear of possible future assault, and because that could
not be the basis for relief, the District Court dismissed his
complaint without prejudice for failure to state a claim under
the PLRA and also dismissed his claims without leave to
amend (as amendment would be futile).
Millhouse argues, and the majority holds, that
dismissal without prejudice cannot count as a strike under the
PLRA. Although most Circuits hold that there is no reason
why a dismissal without prejudice should not count as a strike
The Majority also relies on the Federal Rules of
Appellate Procedure for its misreading of the PLRA. That
reasoning is odd, given that the PLRA (in both § 1915(a) and
(g)) does not distinguish between when an IFP action can be
brought in district court or appealed. They are treated the
same, and thus to base a holding on such a reading is out of
place. Moreover, the statute, not the Federal Rules of
Appellate Procedure, controls.
1

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because § 1915 makes no distinction between dismissals with
or without prejudice—see, e.g., Paul v. Marberry, 658 F.3d
702, 705 (7th Cir. 2011); Orr v. Clements, 688 F.3d 463, 465
(8th Cir. 2012); O’Neal v. Price, 531 F.3d 1146, 1154 (9th
Cir. 2008); Smith v. Veterans Admin., 636 F.3d 1306, 1313
(10th Cir. 2011); see also Patton v. Jefferson Corr. Ctr., 136
F.3d 458, 463-64 (5th Cir. 1998); contra McLean v. United
States, 566 F.3d 391 (4th Cir. 2009) (dismissal without
prejudice cannot count as a strike)—we need not decide that
issue now.
The Heath II dismissal without prejudice was also
without leave to amend. If dismissal worthy of strike-status
under the PLRA must “prejudice[] [the prisoner from] the
filing of a subsequent complaint with the same allegations,”
McLean, 566 F.3d at 396, isn’t dismissal without leave to
amend the functional equivalent of dismissal with prejudice?
Millhouse has no further recourse. Thus, although any
dismissal under § 1915(e)(2)(B) “is not a dismissal on the
merits,” here it has “res judicata effect . . . for future in forma
pauperis petitions.” Denton v. Hernandez, 504 U.S. 25, 34
(1992).2 Put more simply, the Heath II dismissal effectively
barred Millhouse from filing a “subsequent complaint with
the same allegations,” and it is a strike even under the
majority’s adoption of McLean’s reasoning.
The next questionable strike arises from the dismissal
of Millhouse’s complaint in Doe, in which he filed an action
against three unnamed Third Circuit judges for stating in an
opinion that Millhouse had confessed to committing a crime
and/or cooperated with the Government, and this public
Denton involved the application of former § 1915(d)
of the PLRA, which was amended by Congress and is now
currently § 1915(e)(2)(B).
2

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exposure threatened his safety in prison. The District Court
dismissed with prejudice the complaint for failure to state a
claim under the PLRA because the judges were entitled to
absolute immunity in the exercise of their official duties. See
§ 1915(e)(2)(B)(ii). It also determined that Millhouse’s
additional claim for injunctive relief (that he not be housed in
the particular prison he was placed) failed to state a claim
under the PLRA and dismissed that claim with prejudice. It
then denied Millhouse leave to amend his complaint because
that was futile.
Millhouse argues that Doe was not “correct,” and that
under a liberal pleading standard he should have the
opportunity to amend his complaint to include non-immune
defendants. He asserts he would have added the prison
officials who allegedly allowed other inmates to access the
relevant Third Circuit opinion on the computers in the
prison’s law library.
This argument goes nowhere. Although immunity is
typically an affirmative defense that should be asserted in an
answer, dismissal is nonetheless warranted in the PLRA
context if the immunity defense is clear on the face of the
complaint. Ball v. Famiglio, 726 F.3d 448, 463 (3d Cir.
2013). Here the District Court determined from the face of
the complaint that the only named defendants were judicial
officers sued in their official capacity who are entitled to
absolute immunity. See Stump v. Sparkman, 435 U.S. 349,
355-56 (1978); Brandon E. ex rel. Listenbee v. Reynolds, 201
F.3d 194, 200 (3d Cir. 2000). And if Millhouse takes
umbrage with the District Court’s decision regarding his
leave to amend, the appropriate path is to appeal that decision
directly (which he has not done). Doe thus constitutes a
strike.

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Accordingly, Heath II and Doe, in combination with
Bledsoe (which we held to be a strike in Sage), are three
qualifying strikes against Millhouse.
C. Equitable Tolling of Millhouse’s Strikes
Although Millhouse has three strikes against him, it is
overly prejudicial to bar him access to the Court given the
particular facts of this appeal. While the action has not yet
begun because we have not granted Millhouse’s IFP
application, we should consider the date he filed the appeal
(or at least the request for IFP status). The decision to grant
or deny an IFP request is made at a court’s convenience, and
thus substantial delay might ensue.
That is what happened here. Millhouse filed a notice
of appeal and an IFP request in May and June 2015,
respectively; the Clerk’s Office took no action on the IFP
request until it stayed the case five months later in November
2015 (pending the resolution of Sage); and two strikes
accrued during the Court’s delay and mandated stay of the
proceedings. That is, the latter two strikes only accrued for
the purposes of this appeal due to our Court’s delay.
In Urrutia a prisoner filed his IFP request and
complaint, no action was taken by the court, and then he
sought to amend his complaint to add defendants even though
by that time the statute of limitations had run. 91 F.3d 451.
We determined that, even though the limitations period ran
out, “[t]his was not [his] fault[: h]e submitted his in forma
pauperis complaint a full two months before the statute of
limitations was due to expire.” Id. at 458. Because of “the
delay in making a § 1915(d) determination . . . we [held] that,
once a plaintiff submits an in forma pauperis complaint,” the
statute of limitations would be equitably tolled until the court
grants the IFP application. Id. at 459. Thus Urrutia stands
for the principle that, for the purposes of IFP actions, the date

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they commence can be tolled when the applicant would
otherwise be prejudiced.
Other Circuits have taken this approach. See, e.g.,
Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010) (in an
IFP case regarding overdue service of process, the Court held
that “an in forma pauperis plaintiff should not be penalized
for a delay caused by the court’s consideration of his
complaint. That delay is solely within the control of the
district court.” (quotations omitted)); Donald v. Cook Cnty.
Sheriff’s Dep’t, 95 F.3d 548, 557 n.5 (7th Cir. 1996) (same);
Johnson v. U.S. Postal Serv., 861 F.2d 1475, 1485 (10th Cir.
1988) (in a non-prisoner IFP case, holding the “delay
encountered while the district court determines a plaintiff’s
financial eligibility under § 1915, or prepares a statement
denying plaintiff’s in forma pauperis motion, could consume
the entire limitations period”).
The same outcome should occur here. Had our Court
made a prompt (at least within five months) ruling on
Millhouse’s IFP request or become aware more quickly of the
substantial overlap between this case and Sage, the question
of whether these later strikes apply would not be an issue.
Accordingly, we should take the Urrutia approach, equitably
consider the date of commencement for three-strikes purposes
as June 15 (when Millhouse filed his IFP request) due to our
Court’s delay, and rule that the strikes in Heath II and Doe do
not apply to that request because they did not accrue prior to
Millhouse making it.
*
*
*
*
*
In summary, we should vacate the District Court’s
dismissal of Millhouse’s complaint under § 1915(g). As we
determined in Sage, the cases that the Court relied on to
trigger the three-strikes rule are not actual strikes (with the
exception of one, Bledsoe). Although I believe Millhouse

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Case: 15-2278

Document: 003112692895

Page: 34

Date Filed: 08/04/2017

now has three strikes moving forward, for the reasons noted
above I concur with the judgment of the majority.

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