Jason Parker v. Montgomery County Correctional, et al

Filing

PRECEDENTIAL OPINION Coram: SMITH, Chief Judge, FUENTES, Circuit Judge, and STARK, Chief District Judge. Total Pages: 23. Authoring Judge: Smith [15-3449, 15-3451]

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3449
_____________
JASON PARKER,
Appellant
v.
MONTGOMERY COUNTY CORRECTIONAL
FACILITY/BUSINESS OFFICE MANAGER, IN THEIR
OFFICIAL, INDIVIDUAL & PRIVATE; JULIO ALGARIN
WARDEN; NANCY T. MCFARLAND, PRESIDENT;
ANTHONY BUCCI, SOCIAL WORKER; MONTGOMERY
COUNTY; MONTGOMERY COUNTY CORRECTIONAL
FACILITY;PRISON INSPECTORS, IN THEIR
INDIVIDUAL, OFFICIAL AND PRIVATE CAPAC.
_____________
No. 15-3451
_____________
JASON PARKER,
Appellant
v.

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POLICE OFFICER DAVID O’CONNOR; POLICE
OFFICERBRAD MOMME, #7631; PHILA. POLICE CHIEF
CHARLES RAMSEY; PHILA. MAYOR MICHAEL
NUTTER; PHILA. POLICE DEPARTMENT;
CITY OF PHILADELPHIA; JUDGE ANGELO
FOGLIETTA;GOVERNOR OF PENN., TOM CORBETT,
OR TOM WOLF;BARACK OBAMA, PRESIDENT OF
THE UNITED STATES; DISTRICT ATTORNEY SETH
WILLIAMS; ERIC H. HOLDER, JR.,
U.S. ATTORNEY GENERAL, AND/OR LORETTA
LYNCH,IN THEIR OFFICIAL, INDIVIDUAL AND
PRIVATE CAPACITIES
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-15-cv-04205
District Court No. 2-15-cv-03475
District Judge: The Honorable Mitchell S. Goldberg
Argued July 11, 2017
Before: SMITH, Chief Judge, FUENTES, Circuit Judge, and
STARK, Chief District Judge *
(Filed: August 29, 2017)

*

Honorable Leonard P. Stark, Chief Judge of the United
States District Court for the District of Delaware, sitting by
designation.

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Ryan T. Becker, Esq. [ARGUED]
Peter C. Buckley, Esq.
Fox Rothschild
2000 Market Street, 20th Floor
Philadelphia, PA 19103
Counsel for Appellant Jason Parker
Philip W. Newcomer, Esq. [ARGUED]
Montgomery County Solicitor’s Office
One Montgomery Plaza, Suite 800
P.O. Box 311
Norristown, PA 19404
Counsel for Appellees Montgomery County
Correctional Facility and County of Montgomery
________________
OPINION
________________
SMITH, Chief Judge.
This appeal requires us to answer a question about the
“three strikes rule” of the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(g), which was left unresolved by
the Supreme Court in Coleman v. Tollefson, 135 S. Ct. 1759
(2015): may an indigent prisoner appealing a District Court’s
imposition of his “third strike” proceed in forma pauperis
(“IFP”) for that appeal without demonstrating that he is in
imminent danger of serious physical injury? We conclude,
based upon the plain text of the statute, and guided by the

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Supreme Court’s reasoning in Coleman, that we must answer
this question in the negative. Accordingly, we will deny
Parker’s motion to proceed in forma pauperis.
I.
Congress enacted the PLRA in an effort to stem a rising
tide of prisoner suits flooding the federal court system. See
Title VIII, Pub. L. No. 104–134, 110 Stat. 1321 (1996),
amending 28 U.S.C. §§ 1915–1915A; see also Woodford v.
Ngo, 548 U.S. 81, 84 (2006); Abdul-Akbar v. McKelvie, 239
F.3d 307, 312 (3d Cir. 2001) (en banc). Because “Congress
concluded that the large number of meritless prisoner claims
was caused by the fact that prisoners easily obtained I.F.P.
status and hence were not subject to the same economic
disincentives to filing meritless cases that face other civil
litigants,” Abdul-Akbar, 239 F.3d at 312, the PLRA increases
the economic burdens of civil litigation for prisoners.
Among other things, the PLRA requires a prisoner who
files a civil complaint or appeal in federal court to pay the full
amount of any applicable filing and docketing fees. 28 U.S.C.
§ 1915(b)(1). A prisoner who is indigent may be granted IFP
status and thereby be excused from pre-payment of fees. IFP
status does not, however, eliminate the filing and docketing fee
obligations. Rather, it permits the prisoner to pay an initial
partial fee followed by subsequent monthly installments until
the fees are paid in full. See 28 U.S.C. § 1915(b)(1), (2).
In addition, the PLRA imposes the “three strikes rule,”
which “limits a prisoner’s ability to proceed I.F.P. if the
prisoner abuses the judicial system by filing frivolous actions.”

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Abdul-Akbar, 239 F.3d at 312. The rule applies to those
prisoners who are the most frequent filers of meritless civil
suits and appeals in federal courts as follows:
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.
28 U.S.C. § 1915(g). “The ‘three strikes’ provision was
‘designed to filter out the bad claims and facilitate
consideration of the good.’” Coleman, 135 S. Ct. at 1764
(quoting Jones v. Bock, 549 U.S. 199, 204 (2007)).
II.
Jason Parker, an indigent prisoner, 2 has been a prolific
pro se litigant in the United States District Court for the Eastern
2

Parker’s six-month prisoner account statement, filed in
October 2015 in support of his IFP motion, reflects a balance
that is below the amount required for filing and docketing an
appeal. It is almost certain that Parker is indigent and, but for
the three strikes rule, would qualify for IFP status.

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District of Pennsylvania, where he initiated as many as forty
civil matters over a relatively short period of time. For current
purposes, we need focus on only three of those proceedings.
In late 2014, Parker filed a complaint in Parker v.
Nutter, No. 2:14-cv-07113 (E.D. Pa.) (“Nutter”), in which he
claimed that various officials subjected him to false arrest,
malicious prosecution, and the use of excessive force in the
course of his arrest in December 2011. He accompanied the
complaint with a motion to proceed IFP. By order entered
March 19, 2015, the District Court granted the IFP motion and
considered the case pursuant to the PLRA’s IFP screening
provision, 28 U.S.C. § 1915(e), which directs a court to dismiss
a case “at any time” if it determines that the “action or appeal
is frivolous or malicious; fails to state a claim on which relief
may be granted; or seeks monetary relief against a defendant
who is immune from such relief.” Id. § 1915(e)(2)(B)(i)–(iii).
The District Court concluded that Parker’s claims were barred
by Pennsylvania’s two-year statute of limitations and therefore
dismissed the complaint with prejudice pursuant to
§ 1915(e)(2)(B)(ii). Parker did not appeal the dismissal. 3 This
was Parker’s first strike.
Parker’s next strikes stem from two civil rights
complaints that he filed in the summer of 2015, and which
underlie the appeals before us. In the first complaint, Parker
v. O’Connor, No. 2:15-cv-03475 (E.D. Pa.) (“O’Connor”),
3

Parker filed an appeal from a subsequent post-judgment
motion for the appointment of counsel, but the appeal was
dismissed for failure to prosecute. See Parker v. Nutter, No.
15-3203 (3d Cir. dismissed Nov. 23, 2015).

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Parker claimed—as he had in Nutter—that officials subjected
him to assault, false arrest, and malicious prosecution in the
course of his December 2011 arrest. In the second complaint,
Parker v. Montgomery County Correctional Facility, No.
2:15-cv-04205 (E.D. Pa.) (“MCC”), Parker claimed that prison
officials interfered with his access to the courts by depriving
him of prisoner account statements necessary to perfect IFP
motions in his pending litigation. In both O’Connor and MCC,
Parker moved to proceed IFP. He was initially denied that
status without prejudice due to a failure to provide the required
prisoner account statement, but in both cases, he later filed the
necessary documents. The District Court then granted the IFP
motions and screened both complaints pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
On September 17, 2015, the District Court entered a
memorandum opinion and order in each proceeding,
dismissing them both. The District Court concluded that
O’Connor was malicious “because it repeats previously
litigated claims”—namely, the claims Parker had presented in
Nutter. JA 12a. In addition, to the extent O’Connor included
several additional defendants not previously named in Nutter,
the District Court concluded that the claims against those
defendants were frivolous because the new defendants did not
have any involvement with the events giving rise to his claims.
The District Court therefore dismissed O’Connor as frivolous,
malicious, and for failure to state a claim pursuant to
§ 1915(e)(2)(B)(i) and (ii). This was Parker’s second strike. 4
4

Because the dismissals in O’Connor and MCC occurred on
the same day, it is not possible to determine from the record

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In MCC, the District Court concluded that, because
Parker eventually received the prisoner account statements he
required, he could not establish any injury: “[h]e has not
described any non-frivolous cases that he was prohibited from
pursuing because he could not obtain his prison account
statement.” JA 19a–20a. Accordingly, the District Court
dismissed MCC for failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii) and, because it determined that amendment
would be futile, did not grant leave to amend. This was
Parker’s third strike.
Parker timely filed these pro se appeals from the
O’Connor and MCC judgments. Parker filed motions to
proceed IFP in both matters, as well as motions for the
appointment of counsel. Because the two dismissals are
Parker’s second and third strikes under § 1915(g), the Clerk of
this Court directed him to file a motion demonstrating
imminent danger of serious physical injury. Parker complied.
Parker’s IFP motions, counsel motions, and imminent
danger motions were submitted to a panel of this Court. In
response, the Court entered an order on March 24, 2016,
which: (1) consolidated the appeals for briefing; (2)
provisionally granted Parker’s IFP motions, solely for the
purpose of considering his counsel motions, and deferred
assessment of the appeal fees 5; (3) granted the counsel
which strike is technically Parker’s second and which is his
third. We refer in this opinion to O’Connor as the second strike
and MCC as the third merely for expediency.
5
Our discussion in this opinion concerns Parker’s ability to
proceed IFP for purposes of avoiding the pre-payment of filing

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motions; (4) directed counsel to address, “in addition to any
other issues counsel may wish to raise,” the question left
unanswered by Coleman, 135 S. Ct. at 1765, i.e., “whether the
IFP statute affords a prisoner IFP status with respect to an
appeal from a third qualifying dismissal under § 1915”; and,
finally, (5) referred the IFP and imminent danger motions to
the merits panel.
Peter C. Buckley, Esq., and Ryan T. Becker, Esq.,
appeared as pro bono counsel for Parker. 6 Initially, because
these appeals were from screening decisions made by the
District Court prior to any defendant entering an appearance,
no appellee participated in either matter. At the direction of
the Court, the Clerk issued an order inviting Montgomery
County to participate by way of a special appearance. 7 The
and docketing fees. We have no occasion today to review the
correctness of the motion panel’s earlier decision to
provisionally grant Parker IFP status for the purpose of the
appointment of pro bono counsel.
6

We extend our gratitude to Mr. Buckley and Mr. Becker of
Fox Rothschild LLP for donating their time and talent in
accepting this pro bono appointment.

7

Montgomery County was not served in the underlying
District Court proceeding, as the complaint was dismissed
pursuant to § 1915(e) prior to service. The Clerk’s order
specified that participation in the appeal “will not be construed
as consent to service or jurisdiction in any other respect.”

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County accepted the invitation and filed a responsive brief.
At oral argument, counsel for Parker advised the Court
that Parker has abandoned his appeal in O’Connor. That
matter will therefore be dismissed in an accompanying order.
Accordingly, only MCC—Parker’s appeal of the District
Court’s imposition of his third strike—remains before us. And,
before we may consider whether that appeal has merit, we must
decide whether Parker is entitled to IFP status for his appeal,
despite the three strikes imposed by the District Court. 8
III.
We consider de novo issues concerning the proper
application of the three strikes rule. See Millhouse, --- F.3d at
---, 2017 WL 3319795 at *3. Because interpretation of that
rule has undergone recent and substantial change, we first
review some relevant history.
Several years ago, in Ball v. Famiglio, 726 F.3d 448,
464–65 (3d Cir. 2013), we held, among other things, that a
strike does not accrue at the moment that a District Court
dismisses a prisoner’s complaint on an enumerated ground.
Instead, we determined that a District Court’s imposition of a
8

During oral argument, counsel advised the Court that Parker
was released from prison. Because the applicability of the
three strikes rule is determined as of the date that the notice of
appeal is filed, Millhouse v. Heath, --- F.3d ---, 2017 WL
3319795 at *1 (3d Cir. Aug. 4, 2017), and because Parker was
a prisoner at that time, Parker’s subsequent release does not
impact our discussion of § 1915(g).

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strike “counts” for purposes of § 1915(g) only after that
judgment has been affirmed on appeal or the window for
pursuing an appeal has closed. Although the opposite outcome
might have been more consistent with a “hyper-literal” reading
of § 1915(g), we reasoned that to hold otherwise would “risk
inadvertently punishing nonculpable conduct” by preventing
an appeal from an erroneous third-strike dismissal or by
allowing a prisoner litigant’s fourth claim to unfairly expire
before an improperly awarded strike could be reversed on
appeal. Id. at 465 (quoting Jennings v. Natrona Cty. Det.
Center Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999)). Our
holding in Ball was consistent with decisions by the other
Courts of Appeals to have considered the issue, including the
Fifth, Tenth, and D.C. Circuits. Id. (citing cases).
Later that year, the United States Court of Appeals for
the Sixth Circuit considered the same question and reached the
opposite conclusion. André Lee Coleman, a Michigan
prisoner, had filed three federal lawsuits that were dismissed
on grounds enumerated in § 1915(g). While his appeal of the
third dismissal was pending, he filed four new lawsuits,
moving to proceed in forma pauperis in each. The District
Court denied him IFP status pursuant to § 1915(g) and
dismissed his complaints for failure to pay the applicable fees,
concluding that a dismissal counts as a strike even while it is
pending on appeal. The Sixth Circuit affirmed. See Coleman
v. Tollefson, 733 F.3d 175, 177 (6th Cir. 2013). Recognizing
that the Sixth Circuit’s decision gave rise to a circuit split, the
United States Supreme Court granted certiorari.
In a unanimous decision, the Supreme Court affirmed
the Sixth Circuit’s judgment, partially abrogating our analysis

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in Ball and marking a sea change in the interpretation of the
three strikes rule. 9 Coleman, 135 S. Ct. 1759. The Court held
that the literal reading of § 1915(g) that we had rejected in Ball
is precisely what is required in deciding when a strike takes
effect: “[a] prior dismissal on a statutorily enumerated ground
counts as a strike even if the dismissal is the subject of an
appeal. That, after all, is what the statute literally says.” Id. at
1763.
Before the Supreme Court, Coleman argued that use of
the phrase “prior occasion” in § 1915(g) gives rise to ambiguity
because it “may refer to a single moment or to a continuing
event: to an appeal, independent of the underlying action, or to
the continuing claim, inclusive of both the action and its
appeal.” Id. The Supreme Court rejected Coleman’s view,
discerning no ambiguity. “Linguistically speaking, we see
nothing about the phrase ‘prior occasions’ that would
transform a dismissal into a dismissal-plus-appellate-review.”
Id.
According to the Supreme Court, the statute does not
treat a qualifying dismissal as provisional pending appeal, but
rather speaks only to whether an action or appeal “was
dismissed”—a term that “does not normally include
subsequent appellate activity” and which “describes . . . an
action taken by a single court, not . . . a sequence of events
involving multiple courts.” Id. The Court reasoned that this
9

Coleman abrogates Ball only insofar as Ball addressed
the issue of tabulating strikes while an appeal is pending.
Ball’s other holdings remain undisturbed.
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literal reading is also supported by “the way in which the law
ordinarily treats trial court judgments,” inasmuch as a District
Court’s judgment takes immediate effect regardless of a
pending appeal. Id. at 1764. In addition, the Court concluded
that its interpretation comports with the purpose of § 1915(g):
“The ‘three strikes’ provision was ‘designed to filter out the
bad claims and facilitate consideration of the good.’ To refuse
to count a prior dismissal because of a pending appeal would
produce a leaky filter.” Id. (quoting Jones, 549 U.S. at 204).
The Supreme Court acknowledged that its interpretation
creates a risk that a prisoner could be deprived of IFP status in
suits filed after a District Court’s erroneous imposition of a
strike but before that strike’s reversal on appeal. Id. But the
Court observed that such reversals are rare and that the prisoner
might be able to re-file or re-open his or her suit after the
reversal in any event. Id. Coleman countered by arguing that
this interpretation could give rise to a more concrete and
substantial risk: it could deny a prisoner IFP status for, and
therefore effectively bar appellate review of, the District
Court’s imposition of the prisoner’s third strike.
The Solicitor General, who had filed an amicus brief
supporting the literal reading of the statute ultimately adopted
by the Court, agreed with Coleman that the ability to appeal the
imposition of a third strike should be preserved. To that end,
the Solicitor General offered an interpretation of the word
“prior” that, he argued, could reach that result:
The Solicitor General says that we can and
should read the statute to afford a prisoner in
forma pauperis status with respect to a third

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qualifying dismissal . . . . He believes that the
statute, in referring to dismissals ‘on three or
more prior occasions,’ means that a trial court
dismissal qualifies as a strike only if it occurred
in a prior, different, lawsuit.
Id. at 1765.
Because the question of a prisoner’s ability to be
granted IFP status for the purposes of his appeal of the
imposition of a third strike was not directly before the Supreme
Court, it declined to consider the issue. “We need not, and do
not, now decide whether the Solicitor General’s interpretation
(or some other interpretation with the same result) is correct.”
Id.
Today, that issue is squarely before us.
IV.
Since Coleman, the only Court of Appeals to have
considered this question has concluded that a prisoner is
entitled to IFP status while appealing his third strike dismissal.
In Richey v. Dahne, 807 F.3d 1202 (9th Cir. 2015), the Ninth
Circuit fully endorsed the interpretation of § 1915(g) that the
Solicitor General put forth in Coleman, concluding that the
phrase “prior occasions” refers to “strikes imposed in prior-

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filed suits, not . . . those imposed in an earlier stage of the same
suit.” 10 Id. at 1209.
The Richey Court’s rationale for its holding was a desire
to be consistent with “the way in which the law ordinarily treats
trial court judgments.” Id. (quoting Coleman, 135 S. Ct. at
1764).
The Court reasoned, “[w]hile judgments are
immediately preclusive as to successive suits, they are
certainly not preclusive to the panel on appeal.” Id. (citation
omitted). In addition, the Richey Court observed that its rule
would not run afoul of the Supreme Court’s concern in
10

The Tenth Circuit has reached a similar conclusion, but only
in unpublished decisions. Dawson v. Coffman, 651 F. App’x
840, 842 n.2 (10th Cir. 2016) (“A dismissal would not be
considered “prior” if it is the decision underlying the appeal.”);
Burnett v. Miller, 631 F. App’x 591, 604 (10th Cir. 2015)
(same). Pursuant to the Local Rules of the Tenth Circuit, an
unpublished decision is not precedential. See 10th Cir. R.
32.1(A). The Tenth Circuit’s decisions cite Pigg v. FBI, 106
F.3d 1497 (10th Cir. 1997) (per curiam), a pre-Coleman case
that has not been reconsidered in a post-Coleman precedential
decision. We note that the Fourth Circuit, following Pigg,
adopted the Richey-like view of “prior occasion” in Henslee v.
Keller, 681 F.3d 538, 543 (4th Cir. 2012), and that the Sixth
Circuit also did so in the decision that Coleman affirmed. See
Coleman, 733 F.3d at 178 (“A third strike that is on appeal is
not a prior occasion for the purposes of that appeal, because it
is the same occasion.”). Neither the Fourth Circuit nor the
Sixth Circuit has, at the time of writing, commented on
Coleman’s effect on Circuit precedent.

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Coleman about a “leaky filter,” because it only permits the
appeal of the third strike itself. Id.
In its brief analysis, which is noticeably lacking in
discussion of the statutory language, the Richey Court appears
to be primarily motivated by a policy consideration: a contrary
rule would prevent courts of appeals from performing their
“appellate function” by “freez[ing] out meritorious claims or
ossify[ing] district court errors.” Id. (quoting Henslee v.
Keller, 681 F.3d 538, 543 (4th Cir. 2012)). The Ninth Circuit
determined that such an outcome would be unfair, as
exemplified in Richey’s very case, because his third strike was,
indeed, erroneously imposed:
If Richey was not entitled to IFP status on appeal,
he would have to pay the filing fee for us to
reverse the district court’s erroneous third strike,
which would ironically make him eligible again
for IFP status in successive suits. We do not
think that Congress intended such a peculiar
system.
Id.
Such perceived unfairness, rather than the language of
§ 1915(g) itself, appears to have driven the Ninth Circuit’s
decision.
V.
We are not unsympathetic to the concerns that
motivated the Ninth Circuit in Richey. Yet, as a Court of

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Appeals, we must adhere to the apparent intent of Congress as
embodied in the language of § 1915(g). We must also adhere
to Coleman’s instruction to read that language literally. In light
of these weighty considerations, we must respectfully reject the
view espoused by the Ninth Circuit. “While we are generally
reluctant to create circuit splits, we do so where a ‘compelling
basis’ exists.” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d
61, 75 n.7 (3d Cir. 2017) (quoting Wagner v. PennWest Farm
Credit, ACA, 109 F.3d 909, 912 (3d Cir. 1997)). A compelling
basis exists here.
We direct our focus to the language of the statute. See
Bd. of Trustees of IBT Local 863 Pension Fund v. C&S
Wholesale Grocers, Inc., 802 F.3d 534, 542 (3d Cir. 2015)
(“Statutory interpretation begins with the plain language of the
statute and when the language is clear, the court ‘must enforce
it according to its terms.’” (quoting Jimenez v. Quarterman,
555 U.S. 113, 118 (2009))). By its terms, § 1915(g) applies
when “the prisoner has, on 3 or more prior occasions, . . .
brought an action or appeal in a court of the United States that
was dismissed on . . . grounds” enumerated in
§ 1915(e)(2)(B)(i) or (ii). Parker undisputedly has brought
three “actions” that were dismissed on enumerated grounds—
yielding the strikes in Nutter, O’Connor, and MCC. Under
Coleman, these dismissals are three “prior occasions,” and they
bar him from proceeding IFP in “bringing a civil action or
appeal” going forward. Yet, Parker wishes to proceed IFP in
bringing this appeal.
We first observe what the statute does not do, and what
the statute easily could have done if Congress had intended it:
the statute does not create an express exception to § 1915(g)

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treating an appeal from an order imposing a third strike
differently from any other instance in which the prisoner
wishes to bring an action or appeal. There is simply no
language discussing this scenario, although Congress surely
must have anticipated that prisoners would file appeals from
third strike dismissals.
Despite this textual void, Parker argues, adopting the
logic of the Solicitor General in his Coleman amicus brief, that
“[t]he plain meaning interpretation of the phrase ‘prior
occasions’ in this context is most reasonably read to refer to
lawsuits that were instituted before the current lawsuit.”
Parker Br. at 19. Quoting the Solicitor General’s amicus brief
in Coleman, Parker contends that the word “prior” “refer[s] to
strikes imposed in prior-filed suits, not to those imposed in an
earlier stage in the same suit.” Id. at 20.
We cannot square Parker’s proposed interpretation with
either the language of § 1915(g) or the Supreme Court’s
decision in Coleman. As Parker acknowledges, the word
“prior” simply means “earlier in time.” See Webster’s Ninth
New Collegiate Dictionary 936 (9th ed. 1990). A dismissal in
a district court is, of course, earlier in time than an appeal of
that dismissal—and therefore “prior” to the appeal. Moreover,
the statute speaks of “prior occasions.” In its unanimous
decision, the Coleman Court recognized that “actions” and
“appeals” are treated separately, and must each be considered
distinct “occasions.” Coleman, 135 S. Ct. at 1763. This leads
us to the inescapable conclusion that the imposition of a third
strike in a district court is an “occasion” that is “prior” to its
appeal, and that § 1915(g) therefore must apply to an appeal
from the imposition of a third strike.

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In Parker’s view, although he has had cases dismissed
on enumerated grounds on three “occasions,” only two of them
were “prior” to this appeal. To reach that result, Parker
contends that “prior” does not refer to “occasions” at all, but
rather to “actions or appeals filed prior to the action that is on
appeal.” Parker Br. at 19. As a matter of grammar, it is clear
that “prior” modifies “occasions,” and the text does not refer
to “prior lawsuits.” We fail to see how we could agree with
Parker’s proposed interpretation without re-writing the statute.
Parker also contends that interpreting “prior occasions”
to include all occasions, even the underlying dismissal, would
render the term “prior” superfluous and would therefore run
contrary to our duty to give effect to every word of the statute.
See Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014)
(recognizing the “cardinal principle” of statutory
interpretation, requiring courts to “give effect, if possible, to
every clause and word of a statute” (quoting Williams v.
Taylor, 529 U.S. 362, 404 (2000))). We disagree.
In our view, the term “prior” sets a temporal parameter,
referring only to strikes accrued earlier in time than the notice
of appeal. All later-accrued strikes—even if imposed after the
filing of the notice of appeal but before the prisoner’s IFP
motion is decided—are not “prior” strikes, and therefore do not
“count” for purposes of the three strikes rule. Millhouse, --F.3d at ---, 2017 WL 3319795 at *1 (“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.”). If the
statute did not include the term “prior,” then any strikes,
including those issued after a prisoner files an appeal but before

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IFP status is awarded or denied, could contribute to the strike
count. 11 Thus, in our view, “prior” has meaning.
In sum, based upon the plain language of § 1915(g), we
think it clear that Parker “has, on 3 or more prior occasions, . .
. brought an action or appeal in a court of the United States that
was dismissed on . . . grounds” enumerated in
§1915(e)(2)(B)(i) or (ii). We therefore conclude that he is
subject to the restrictions set forth in § 1915(g) for purposes of
this appeal.
VI.
We recognize that, as a practical matter, most indigent
prisoners who are denied IFP status will be unable to pre-pay
the fees. Accordingly, our decision today means that some
prisoners will be unable to challenge the imposition of a third
strike, even though a wrongly imposed third strike would have
long-term consequences for that prisoner’s ability to bring
cases IFP going forward. We have held, however, that
requiring a prisoner to pre-pay fees does not amount to a
11

In fact, Parker appears to have received at least two
additional strikes while this appeal was pending. See generally
Parker v. Boring, No. 1:15-cv-01784, 2016 WL 3381287
(M.D. Pa. May 19, 2016), report and recommendation adopted,
2016 WL 3227250 (M.D. Pa. June 13, 2016); Parker v.
Banner, No. 1:15-CV-01808, 2016 WL 4870505 (M.D. Pa.
July 25, 2016), report and recommendation adopted, 2016 WL
4765964 (M.D. Pa. Sept. 13, 2016). Under our reading of the
statute, neither of these strikes “counts” in assessing Parker’s
IFP eligibility on appeal.

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violation of the right of access to the courts. Abdul-Akbar, 239
F.3d at 317 (“[T]he right of access to the courts is not absolute.
. . . [M]erely requiring a prisoner to pay filing fees in a civil
case does not, standing alone, violate that prisoner’s right of
meaningful access to the courts.”).
More importantly, regardless of any concern we may
have with this outcome, it is our duty to give effect to the plain
language of the statute. See United States v. Ron Pair Enters.,
Inc., 489 U.S. 235, 241 (1989) (“[W]here, as here, the statute’s
language is plain, ‘the sole function of the courts is to enforce
it according to its terms.’” (quoting Caminetti v. United States,
242 U.S. 470, 485 (1917)). As we observed in our en banc
decision in Abdul-Akbar,
Congress has deliberately decided to legislate on
this subject by proclaiming, as public policy, a
determination to reduce prisoner litigation in the
federal courts. As citizens, we may disagree with
the congressional wisdom, but as judges,
knowing the clearly stated legislative purpose,
we may not disembowel the legislative act.
Federal courts . . . do not have unlimited power
and authority. We are limited to that which has
been granted by Congress. What Congress gives
it may also take away. The ability to proceed
I.F.P. is not a constitutional right. Congress
granted the right to proceed I.F.P. in 1892, and it
has the power to limit this statutorily created
right. Here it has taken away our ability as
judges to grant I.F.P. status to a “three strikes”
prisoner . . . . Congress has held trump here, and

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it has dealt a hand. As judges we must play it.
239 F.3d at 315–16. We have no choice but to echo that
sentiment today.
VII.
For all of the foregoing reasons, and as set forth in our
accompanying order, we will deny Parker’s motion to proceed
in forma pauperis in MCC, appeal No. 15-3449. We will also
deny Parker’s motion invoking the imminent danger exception
to § 1915(g). 12 Accordingly, before we may consider the
merits of this appeal, Parker must pay the full amount of the
applicable filing and docketing fees in the District Court within
fourteen days of our order. Should Parker pay the fees, this
panel will retain jurisdiction to decide the merits of the MCC
appeal—which, we note, has been fully briefed by counsel and
is ripe for disposition. Should Parker fail to pay the fees as
12

“[A] prisoner may invoke the ‘imminent danger’ exception
only to seek relief from a danger which is ‘imminent’ at the
time the complaint is filed.” Abdul-Akbar, 239 F.3d at 312. In
his motion, Parker argues that MCC’s delay in providing him
financial information prolonged his stay in prison, which is a
hostile and dangerous environment. Although prison can
undoubtedly be a dangerous place, incarceration alone does not
satisfy the requirement of “imminent danger of serious
physical injury” for purposes of § 1915(g). Indeed, if it did,
every prisoner would be entitled to IFP status and the exception
would swallow the rule. See id. at 315 (rejecting a proposed
interpretation that would allow the exception to swallow the
rule).

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instructed, we will direct the Clerk to close the MCC appeal
without further notice.
Finally, as previously discussed, counsel advised the
Court during oral argument that Parker has abandoned the
O’Connor appeal.
Accordingly, as set forth in the
accompanying order, we will dismiss O’Connor, No. 15-3451,
pursuant to Fed. R. App. P. 42(b).

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