Ball v. Sipe

Filing 25

MEMORANDUM OPINION denying the 15 MOTION to Revoke Plaintff's In Forma Pauperis Status. Signed by Magistrate Judge Martin C. Carlson on July 12, 2012. (kjn )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAWN BALL,

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Plaintiff,
v.

LT. SIPE, et al.,
Defendants.

CIVIL NO. 1:12-CV-537
(Chief Judge Kane)
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Introduction

In the Prison Litigation Reform Act, Congress established a series of
procedures relating to prisoner civil litigation in federal court, procedures “designed
to filter out the bad claims and facilitate consideration of the good.” Jones v. Bock,
549 U.S. 199, 204 ( 2007). One critical component of these reforms calls upon
federal courts to perform a gatekeeping function with respect to pro se inmates who
repeatedly seek leave to proceed in forma pauperis while filing frivolous or meritless
claims. As part of this statutorily mandated process, we are obliged to screen civil
complaints lodged by pro se litigants who wish to proceed in forma pauperis, deny
such leave to prisoners who have on three or more prior occasions filed frivolous or
meritless claims in federal court, and dismiss these inmate complaints, unless the
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inmate alleges facts showing that she is in imminent damage of serious bodily harm.
28 U.S.C. §1915(g).
In the instant case, we are now called upon to perform this function, a function
which is an integral part of these Congressional “reforms designed to filter out the
bad claims and facilitate consideration of the good”in this field Jones v. Bock, 549
U.S. 199, 204 ( 2007). The defendants have filed a motion to revoke the plaintiff’s
in forma pauperis status, (Doc. 15.), citing the dismissal of a series of lawsuits and
appeals brought by Ball over the years. This combination of dismissal orders compels
us to address a specific question: When a pro se litigant insists on pursuing wholly
frivolous claims against judicial officers, who are absolutely immune from liability,
does the dismissal of the plaintiff’s claim as frivolous by both the district court and
later by the court of appeals court as two separate strikes under §1915(g)’s three
strike rule?
Following the majority rule adopted by the courts we find that each of these
frivolous forays constitutes a separate strike under §1915(g). We conclude, therefore,
that, as of December 21, 2011, Ball has now incurred three strikes, a finding which
requires that all future requests by Ball for in forma pauperis status be denied, unless
Ball can show that the narrow, imminent danger exception to §1915(g) applies to her
specific claims.
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While we reach this legal conclusion, we are constrained, however, to deny this
particular request to revoke Ball’s in forma pauperis status since it appears that Ball
first endeavored to file the instant action prior to December 21, 2011, the date upon
which her third strike became final.
II.

Statement of Facts and of the Case
A.

Dawn Ball’s Litigation History

Dawn Ball is an inmate housed in the Restricted Housing Unit at the State
Correctional Institution (SCI) Muncy, who by her own account suffers from a
cascading array of severe mental illnesses, and who has candidly acknowledged that
she is profoundly disturbed. Ball v. Beard, No. 1:09-CV-845 (Doc. 42, pp.6-7.)
Furthermore, Ball is also an inmate who has reported to the court that she engages in
multiple episodes of destructive, self-defeating and senseless behavior.
Much of this institutional misconduct is marked by disturbing, excretory
behavior. Indeed, a constant refrain throughout many of Ball’s lawsuits is her
fascination with her own bodily wastes. For example, recurring themes in Ball’s
lawsuits include Ball’s penchant for smearing feces on herself, her clothes, her
property, and her cell, as well as her destruction of her own clothing, and her use of
her clothing to plug her toilet and flood her cell with water and human waste. Ball
v. Eiswerth, No. 1:08-CV-701(M.D.Pa.). Ball is also, by her own admission, an
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inmate with a propensity for sudden, explosive rages, as illustrated by the civil
complaint which she has filed. Ball v. Barr, No.1:11-CV-2240 (M.D.Pa.). In this
complaint, Ball describes an episode in which a discussion regarding the aesthetic
qualities of a piece of cornbread escalated in a matter of moments into a profanitylaced wrestling match over a food tray.
Ball is a prodigious federal court litigant, bringing numerous lawsuits based
upon her perception of the events that take place around her in prison. Indeed, at
present Ball currently has more than 25 lawsuits pending before this court.1
Furthermore, Ball is a prodigiously unsuccessful litigant, who has had numerous prior

See, e.g., Ball v. SCI Muncy, No.1:08-CV-700 (M.D.Pa.); Ball v. SCIMuncy, No. 1:08-CV-701 (M.D.Pa.); Ball v. Hill, No.1:09-CV-773 (M.D.Pa.);
Ball v. Beard, No. 1:09-CV-845 (M.D.Pa.); Ball v. Lamas, No. 1:09-CV-846,
(M.D. Pa.); Ball v. Oden, No 1:09-CV-847 (M.D.Pa.); Ball v. Bower, No. 1:10CV-2561 (M.D.Pa.); Ball v. Sisley, No. 1:11-CV-877 (M.D.Pa.); Ball v. Struther,
No. 1:11-CV-1265 (M.D.Pa.); Ball v. Hummel, No. 1:11-CV-1422 (M.D.Pa.); Ball
v. Beckley, No. 1:11-CV-1829 (M.D.Pa.); Ball v. Sipe, No. 1:11-CV-1830
(M.D.Pa.); Ball v. Craver, No. 1:11-CV-1831 (M.D.Pa.); Ball v. Powley, No. 1:11CV-1832 (M..D.Pa.); Ball v. Cooper, No. 1:11-CV-1833 (M.D.Pa.); Ball v.
Famiglio, No. 1:11-CV-1834 (M.D.Pa.); Ball v. Eckroth, No. 1:11-CV-2238
(M.D.Pa.); Ball v. Campbell, No. 1:11-CV-2239 (M.D.Pa.); Ball v Barr, No. 1:11CV-2240 (M.D.Pa.); Ball v Giroux, No. 1:12-CV-10 (M.D.Pa.); Ball v Giroux,
No. 1:12-CV-11 (M.D.Pa.); Ball v Curham, No. 1:12-CV-12 (M.D.Pa.); Ball v.
Giroux, No. 1:12-CV-812 (M.D.Pa.); Ball v. Giroux, No. 1:12-CV-813 (M.D.Pa.);
Ball v. Hummel, No. 1:12-CV-814 (M.D.Pa.); Ball v. D’Addio, No. 1:12-CV-815
(M.D.Pa.) .
1

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lawsuits and appeals dismissed either as frivolous or on the grounds that the lawsuit
failed to state a claim upon which relief could be granted.
The history of repeated, frivolous and meritless litigation in federal court by
this plaintiff began in March of 2008, when Ball filed a complaint in the case of Ball
v. SCI Muncy, No. 1:08-CV-391 (M.D. Pa.). On December 10, 2008, the district
court dismissed this civil action, citing Ball’s failure to exhaust her administrative
remedies, and stating that Ball:
does not dispute that she failed to exhaust her administrative remedies
with regard to the issues raised in the complaint. Plaintiff’s failure to
oppose the remaining Defendants’ motion, which also seeks dismissal
for failure to exhaust administrative remedies, renders the motion
unopposed. See L.R. 7.6. It is clear that Plaintiff’s claims are not
properly before this Court and must be dismissed.
(Doc. 36, p.5.)
While, fairly construed, the district court’s dismissal decision rested on exhaustion
grounds, and did not entail an analysis of the merits of Ball’s claims, the dismissal
order itself went on to state that any appeal of this dismissal would be “deemed
frivolous and not in good faith.” Ball v. SCI Muncy, No. 1:08-CV-391 (M.D. Pa.)
(Doc. 36, p.6.)

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Nonetheless, Ball appealed this ruling. (Doc. 37.) On July 22, 2010, the
United States Court of Appeals for the Third Circuit affirmed the dismissal of this
action, noting that:
The District Court granted the Defendants’ motions to dismiss, pursuant
to Federal Rule of Civil Procedure 12(b)(6), on the grounds of failure to
exhaust administrative remedies. We agree with the District Court’s
decision and accordingly affirm the dismissal of Ball’s claims.
Ball v. SCI Muncy, No. 1:08-CV-391 (M.D. Pa.)(Doc. 44, p. 2-3.) Thus, the court
of appeals’ ruling, like the district court’s decision, was expressly based upon Ball’s
failure to exhaust her administrative remedies.
On May 5, 2009, Ball filed another civil action in the case of Ball v. Hartman,
No. 1:09-CV-844 (M.D. Pa.). This action was also dismissed by the district court,
which on this occasion considered the merits of Ball’s claims and explicitly
concluded that Ball had failed to state a claim upon which relief could be granted.
Ball v. Hartman, No. 1:09-CV-844 (M.D. Pa.) (Docs 32, 33, and 36.) Therefore, this
second dismissal involved a merits analysis of Ball’s claims, and a determination that
Ball’s complaint “fail[ed] to state a claim upon which relief may be granted.” 28
U.S.C. § 1915(g). Ball appealed this dismissal order, Ball v. Hartman, No. 1:09-CV844 (M.D. Pa.) (Doc 34.), but this dismissal was subsequently affirmed by the court

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of appeals, on October 29, 2010. Ball v. Hartman, No. 1:09-CV-844 (M.D. Pa.) (Doc.
48.)
Ball then filed yet another lawsuit in the case of Ball v. Butts, No. 1:11-CV1068, (M.D.Pa.) on June 3, 2011. Ball v. Butts, No. 1:11-CV-1068 (M.D.Pa.)(Doc.
1.) In this action Ball chose to sue a state court judge, ignoring the well-settled legal
doctrine that judicial officers are absolutely immune from liability for actions taken
presiding over litigation. Mireless v. Waco, 502 U.S. 9, 13 (1991). On June 15,
2011, upon a screening review of this complaint, the district court dismissed this
action for failure to state a claim upon which relief could be granted. Ball v. Butts,
No. 1:11-CV-1068 (M.D.Pa.)(Doc. 8.)
Ball appealed this dismissal. Ball v. Butts, No. 1:11-CV-1068 (M.D.Pa.)(Doc.
10.) On September 21, 2011, the court of appeals entered an opinion and order
dismissing Ball’s appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). That
appellate court opinion and order spoke unambiguously regarding the frivolous nature
of this particular lawsuit filed by Ball, stating in clear and precise terms that:
Because we too have granted Ball leave to proceed IFP, we must screen
this appeal to determine whether it is frivolous. See 28 U.S.C. §
1915(e)(2)(B)(i). An appeal is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
This appeal lacks any such basis. As the District Court adequately
explained, immunity extends even to judicial acts that are “done
maliciously,” and Ball has alleged nothing suggesting that Judge Butts
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acted in the “clear absence of all jurisdiction.” Gallas v. Supreme Court
of Pa., 211 F.3d 760, 769 (3d Cir.2000) (citation and internal quotation
marks omitted). To the extent that Ball's request for injunctive relief
might not have been subject to dismissal under § 1915(e)(2)(B)(iii), it
was subject to dismissal under § 1915(e)(2)(B)(ii) because such relief is
not available against “a judicial officer for an act ... taken in such
officer's judicial capacity” under these circumstances. 42 U.S.C. § 1983.
Finally, we are satisfied that any amendment of Ball's complaint would
be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d
Cir.2002). Thus, we will dismiss this appeal.
Ball v. Butts, No. 11-2862, 2011 WL 4375782, 1 (3d Cir. Sept 21, 2011).
With respect to the legal effect of this dismissal order as a “strike” under 28
U.S.C. §1915(g), as a matter of law: “[A] strike ripens to be counted from the date
of the Supreme Court’s denial or dismissal of a petition for writ of certiorari, if the
prisoner filed one, or from the date when the time to file a petition for writ of
certiorari expired, if he did not.” Smith v. V.A., 636 F.3d 1306, 1310-11 (10th Cir.
2011) A litigant has 90 days to file a petition for writ of certiorari. 28 U.S.C. §
2101(c). Where the prisoner did not file a direct appeal in a circuit court, a district
court’s dismissal counts as a strike from the date when his time to file a direct appeal
expired. Smith, 636 F.3d at 1311. Here, Ball did not seek Supreme Court review of
this final dismissal order. Therefore, the appellate’s court’s dismissal of this action
became a final order, which could be considered when assessing Ball’s noncompliance with 28 U.S.C. §1915(g), on December 21, 2011.

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Beyond these prior dismissals, Ball has also had a series of improvident
interlocutory appeals dismissed by the United States Court of Appeals for the Third
Circuit. For example, in Ball v. Muncy SCI-Inst., No.1:08-CV-701 (M.D.Pa.), on
June 12, 2009, the court of appeals dismissed an interlocutory appeal lodged by the
plaintiff. Ball v. Muncy SCI-Inst., 09-1367 (3d Cir.) ( Doc. 17, Exhibit H.) Likewise,
in Ball v. Hill, No.1:09-CV-773 (M.D.Pa.), on October 6, 2010, the court of appeals
dismissed another meritless interlocutory appeal taken by the plaintiff. Ball v. Hill,
10-1703 (3d Cir.)(Doc. 17, Exhibit I.)
However, this past history of repetitive, meritless and frivolous litigation by
Ball actually understates dramatically the extent to which Ball has indulged in what
has been determined to be pointless, meritless and often frivolous litigation. Indeed,
in addition to these fully-documented prior dismissal orders, Ball currently has at
least eleven other cases2 pending before this court where there have been reports and
recommendations issued, or adopted, calling for dismissal of claims.

Ball v. Eiswerth, No. 1:08-CV-701(M.D.Pa.); Ball v. Beard, No. 1:09-CV845 (M.D.Pa.); Ball v. Lamas, No. 1:09-CV-846, (M.D. Pa.); Ball v. Sisley, No.
1:11-CV-877 (M.D.Pa.); Ball v. Campbell, No. 1:11-CV-2239 (M.D.Pa.); Ball v
Barr, No. 1:11-CV-2240 (M.D.Pa.); Ball v Giroux, No. 1:12-CV-10 (M.D.Pa.);
Ball v Giroux, No. 1:12-CV-11 (M.D.Pa.); Ball v. Giroux, No. 1:12-CV-812
(M.D.Pa.); Ball v. Giroux, No. 1:12-CV-813 (M.D.Pa.); Ball v. D’Addio, No.
1:12-CV-815 (M.D.Pa.)
2

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B.

Ball’s Current Lawsuit
1.

Factual Background

It is against the backdrop of this history of unsuccessful, unexhausted, feckless
and meritless filings that Ball instituted the current lawsuit. On January 4, 2012, Ball
filed the instant pro se complaint. (Doc. 1.) Ball’s complaint, however, makes it
clear that she had previously endeavored on December 2, 2011, to file this complaint
as an amended complaint in another lawsuit, Ball v. Hummel, No. 1:11-1422 (M.D.
Pa.)(Doc. 25), but had been instructed by the court to file this case as a separate
action in a report and recommendation dated December 15, 2011. Ball v. Hummel,
No. 1:11-1422 (M.D. Pa.)(Doc. 28.)
Ball’s complaint names a single defendant, Lt. Sipe. The complaint then
alleges that this defendant placed Ball in a strip cell without a mattress for a period
of one week on two occasions in the summer of 2010, and required her to go to the
law library inappropriately clad in September of 2011. (Id.) We initially granted Ball
leave to proceed in forma pauperis, and ordered this complaint served. (Doc. 7.) The
defendants have now moved to revoke this in forma pauperis status, citing the
dismissal of Ball’s prior lawsuits and appeals. (Docs. 15 and 16.)
We directed Ball to respond to this motion by June 22, 2012. (Doc. 18.) Ball
has not complied with this motion response deadline. Instead, Ball sought to stay all
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of her multi-faceted federal court litigation, in an apparent effort to delay or avoid
rulings in these cases on many ripe defense motions. (Doc. 20.) Indeed, in this stay
motion Ball endeavored not only to ignore the court’s prior order setting a briefing
schedule in this case, but to try to ignore the court altogether by instructing the clerk’s
office to present the stay motion to another judge. (Id.) Furthermore, Ball’s motion
sought more than a stay of future litigation, she also demanded that all orders in all
of her cases entered since April, 2012, be “revoked.” (Id.) We denied this stay
motion, (Doc. 22.), and Ball allowed her filing response deadline on the instant
motion to lapse. Thus, the motion is now ripe for resolution.
II.

Discussion
A.

Guiding Principles–28 U.S.C. §1915(g)

Defendants argue that the court should revoke Ball’s in forma pauperis status
under 28 U.S.C. § 1915(g), because she has at least three merits-based dismissals of
other actions or appeals that Ball previously filed.
Section 1915(g) of the Title 28 of the United States Code provides that:
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.
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28 U.S.C. § 1915(g).
The purpose of this “three strikes” provision was to restrain inmate abuses of
the court system, and to deter the filing of multiple frivolous lawsuits by inmates. See
Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 (3d Cir. 2001) (“[T]he legislation was
aimed at the skyrocketing numbers of claims filed by prisoners – many of which are
emotionally driven but legally deficient – and the corresponding burden those filings
have placed on the federal courts.”). The legislation was thus intended to serve “as
a rational deterrent mechanism, forcing potential prisoner litigants to examine
whether their filings have any merit before they are filed, and disqualifying frequent
fliers who have failed in the past to carefully evaluate their claims prior to filing.”
Id. Notably, “the bar imposed by this provision does not preclude an inmate from
bringing additional suits. It does, however, deny him or her the right to obtain in
forma pauperis status.” Gibbs v. Cross, 160 F.3d 962, 965 (3d Cir. 1998). Congress
enacted 28 U.S.C. § 1915(g) with the express purpose of “[d]eterring frivolous
prisoner filings in the federal courts [a goal which] falls within the realm of Congress'
legitimate interests.” Abdul-Akbar v. McKelvie, 239 F.3d 307, 318-19 (3d Cir.
2001). With this goal in mind, it is well-settled that, “generally, a prisoner may not
be granted IFP [in forma pauperis] status if, on three or more occasions, he brought

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an action that was dismissed as frivolous,” Brown v. City Of Philadelphia, 331 F.
App’x 898, 899, (3d Cir.2009), and inmates who attempt to bring such lawsuits in
forma pauperis should have their complaints dismissed. Id.
In determining whether a particular inmate-plaintiff has had three prior
dismissals, or “three strikes,” under §1915(g), we look to the status of the plaintiff’s
prior litigation history at the time she filed the current lawsuit. Thus, only dismissals
which were actually ordered at the time of the filing of the instant case are counted
towards a “three strike” assessment under §1915(g), and “[a] dismissal does not
qualify as a ‘strike’ for § 1915(g) purposes unless and until a litigant has exhausted
or waived his or her appellate rights. See Jennings v. Natrona County Det. Ctr. Med.
Facility, 175 F.3d 775, 780 (10th Cir.1999); Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir.1996).” Lopez v. U.S. Dept. of Justice, 228 F. App’x 218 (3d Cir.
2007).
Furthermore, with respect to determining when a dismissal order is ripe and
counts as a strike against a pro se plaintiff, as a matter of law: “[A] strike ripens to
be counted from the date of the Supreme Court’s denial or dismissal of a petition for
writ of certiorari, if the prisoner filed one, or from the date when the time to file a
petition for writ of certiorari expired, if he did not.” Smith v. V.A., 636 F.3d 1306,
1310-11 (10th Cir. 2011). A litigant has 90 days to file a petition for writ of
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certiorari. 28 U.S.C. § 2101(c). Where the prisoner did not file a direct appeal in a
circuit court, a district court’s dismissal counts as a strike from the date when his time
to file a direct appeal expired. Smith, 636 F.3d at 1311. However, in assessing when
a particular inmate plaintiff is subject to the gatekeeping provisions of § 1915(g), it
is also clear that “lawsuits dismissed as frivolous prior to the enactment of the PLRA
count as ‘strikes’ under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383 (5th
Cir.1996); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir.1996); Green v.
Nottingham, 90 F.3d 415 (10th Cir.1996).” Keener v. Pennsylvania Bd. of Probation
& Parole, 128 F.3d 143, 144 (3d Cir. 1997).
The grounds of dismissal cited by the court in its dismissal orders are also
significant in this setting. Section 1915(g) provides that the preclusive effect of this
three strikes rule only applies where each of the prior cases “was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which relief may
be granted.” Id. Focusing on this statutory text, courts generally agree that the
dismissal of an inmate lawsuit simply for failure to exhaust administrative remedies
doe not constitute a dismissal “on the grounds that it is frivolous, malicious, or fails
to state a claim upon which relief may be granted.” Therefore, such dismissals are
typically not considered strikes for purposes of §1915(g)’s three strikes rule. See,
e.g., Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011); Turley v. Goetz, 625 F.3d
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1005 (7th Cir, 2010); Tafari v. Hues, 473 F.3d 440 (2d Cir. 2007); Owens v. Isaac,
487 F.3d 561 (8th Cir. 2007); Green v. Young, 454 F.3d 405 (4th Cir. 2006); Henry
v. Medical Dept. at SCI Dallas, 153 F.Supp. 2d. 153, 155 (M.D. Pa. 2001). In
contrast, “[t]he IFP statute does not explicitly categorize as frivolous a claim
dismissed by reason of judicial immunity, but we will. Any claim dismissed on the
ground of absolute judicial immunity is ‘frivolous’ for purposes of 28 U.S.C. §
1915(g).” Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011).
By its terms, §1915(g) provides that in forma pauperis status should be denied
to a prisoner: “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.” 28 U.S.C. §1915(g). The plain language
of §1915(g) makes it unmistakably clear that both frivolous civil actions and meritless
appeals are counted in assessing these three strikes. However, the courts are mindful
of the fact that virtually every appeal stems from an underlying civil action and have,
therefore, adopted a careful and measured approach to assessing strikes based upon
appeals in order to ensure that these strikes do not unduly multiply against a prisonerplaintiff solely through the exercise of her appellate rights.

15

Adopting this careful and measured approach, it has been held that: “The plain
language of the statute thus limits the application of a strike to a dismissal, not an
affirmance of a dismissal. See Jennings v. Natrona County Det. Ctr. Med. Facility,
175 F.3d 775, 780 (10th Cir.1999).” Ali v. Howard, 353 F. App'x 667, 668 (3d Cir.
2009) Therefore, the affirmance of a dismissal order, standing alone, will not
constitute a strike for purposes of §1915(g). Similarly, while an interlocutory appeal
that is expressly dismissed by an appellate court as frivolous may count as a strike
under §1915(g), see King v. Anderson, 234 F. App’x 321 (5th Cir. 2007), the mere
dismissal of an interlocutory appeal for want of jurisdiction because the appeal is
improvident and premature does not constitute a strike against a pro se in forma
pauperis litigant. Tafari v. Hues, 473 F.3d 440 (2d Cir. 2007).
However, even this very measured approach recognizes that there are instances
in which a prisoner litigant will file both a frivolous lawsuit, and a frivolous appeal.
In such instances, it has been held that both the frivolous lawsuit, and the separate
frivolous appeal counts as a strike under §1915(g). As one court has aptly explained
in addressing this question:
28 U.S.C. § 1915 allows indigent prisoners to defer paying filing fees
under a structured payment plan. See 28 U.S.C. § 1915(b). Section
1915(g), however, denies this option to so-called “frequent filers,”
prisoners who have repeatedly brought legal claims dismissed as

16

frivolous, malicious, or not stating a claim; such litigants must pay the
filing fee up front. The provision reads:
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.
Id. § 1915(g). At issue in this case is whether a plaintiff incurs one
strike or two when he (1) files a complaint that is dismissed on one of
the listed grounds and then (2) appeals that dismissal, only to have the
appeal dismissed, also on one of the listed grounds. The question, thus,
is: does § 1915(g), in referring to occasions on which a plaintiff
“brought an action or appeal,” use “action” to refer only to proceedings
before the district court; or, as Chavis argues, does “action” mean the
entire course of a lawsuit, leaving “appeal” to refer solely to cases in
which a plaintiff appeals a non-strike district court disposition? Every
circuit court to address the matter has held that sequential dismissals
count as two strikes. See Jennings v. Natrona County Det. Ctr. Med.
Facility, 175 F.3d 775, 780 (10th Cir.1999); Hains v. Washington, 131
F.3d 1248, 1250 (7th Cir.1997) (per curiam); Henderson v. Norris, 129
F.3d 481, 485 (8th Cir.1997) (per curiam); Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir.1996). As the Seventh Circuit explained:
Under this language, bringing an action and filing an
appeal are separate acts. One could be frivolous, the other
not. Having been told that his complaint is frivolous, a
prisoner must decide whether to appeal. Prisoners who
learn from their mistakes will suffer one strike, at most, in
a case. Obstinate or malicious litigants who refuse168 to
take no for an answer incur two strikes. That approach not

17

only comports with the statutory language but also fortifies
the deterrence of frivolous activities in litigation.
Newlin v. Helman, 123 F.3d 429, 433 (7th Cir.1997) (citation omitted),
overruled on other grounds by Walker v. O'Brien, 216 F.3d 626 (7th
Cir.2000), and Lee v. Clinton, 209 F.3d 1025 (7th Cir.2000). Or, as the
Fifth Circuit put it, “Congress suggests in the statute that any appeal
dismissed as frivolous counts against the petitioner; it makes no
exception for frivolous appeals of district court dismissals.” Adepegba,
103 F.3d at 388. This majority position is the most natural reading of §
1915(g).

Chavis v. Chappius, 618 F.3d 162, 167-68 (2d Cir. 2010). Thus, the successive
dismissal of both a civil complaint, and subsequent appeal, as frivolous will constitute
two strikes under §1915(g).
Once it is determined that an inmate-plaintiff has had at least three prior
lawsuits or appeals dismissed “on the grounds that [they were] frivolous, malicious,
or fail[ed] to state a claim upon which relief may be granted,” 28 U.S.C. § 1915(g)
compels denial of in forma pauperis status and dismissal of in forma pauperis
lawsuits unless the inmate alleges that he or she “is under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g). With respect to this specific statutory
exception, it is clear that:
The clause “unless he is in imminent danger of serious physical injury”
is an exception to the preclusive effect of the statute. But the exception
is cast in the present tense, not in the past tense, and the word “is” in the
exception refers back to the same point in time as the first clause, i.e.,
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the time of filing. The statute contemplates that the “imminent danger”
will exist contemporaneously with the bringing of the action. Someone
whose danger has passed cannot reasonably be described as someone
who “is” in danger, nor can that past danger reasonably be described as
“imminent.”
Abdul-Akbar v. McKelvie, 239 F.3d at 313.
Moreover, in making this assessment of imminent danger:
A court need not accept all allegations of injury made pursuant to §
1915(g). To the contrary, a court may discredit “factual claims of
imminent danger that are ‘clearly baseless,’ i.e., allegations that are
fantastic or delusional and rise to the level of the ‘irrational or wholly
incredible.’ ” Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir.1998) (citing
Denton v. Hernandez, 504 U.S. 25, 33 (1992)). The Supreme Court has
directed that, in assessing a case under 28 U.S.C. § 1915, we are not
required to accept without question the truth of the plaintiff's
allegations. See Denton 504 U.S. at 32. Rather, we may be guided by
judicially noticeable facts in determining whether the allegations are
baseless or wholly incredible.
Brown v. City Of Philadelphia, 331 F. App’x at 900.

B.

Application of §1915(g)’s Three Strike Rule to This Lawsuit

In this case, the defendants first argue that application of these guiding legal
principles leads to the conclusion that, as of December 21, 2011, Ball had “three
strikes” under §1915(g), since three of her prior lawsuits or appeals were subject to
final orders of dismissal as frivolous.

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We agree. In reaching this conclusion, we find that two of the prior district
court dismissals suffered by Ball, in Ball v. Butts, No. 1:11-CV-1068 (M.D.Pa.) and
Ball v. Hartman, No. 1:09-CV-844 (M.D. Pa.), plainly constitute strikes under
§1915(g). In both instances, the district court dismissed Ball’s complaint for failure
to state a claim upon which relief can be granted, a grounds for invoking §1915(g)’s
statutory preclusion. Moreover, in both instances, Ball exhausted her appeals,
rendering these decisions final orders.
We also find that the dismissal of Ball’s appeal in Ball v. Butts, also constitutes
a strike against this prisoner-plaintiff under §1915(g). As we have noted, on
September 21, 2011, the court of appeals entered an opinion and order dismissing
Ball’s appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). That appellate
court opinion and order spoke unambiguously regarding the frivolous nature of this
particular lawsuit filed by Ball, stating in clear and precise terms that:
Because we too have granted Ball leave to proceed IFP, we must screen
this appeal to determine whether it is frivolous. See 28 U.S.C. §
1915(e)(2)(B)(I). An appeal is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989).This appeal lacks any such basis. As the District Court
adequately explained, immunity extends even to judicial acts that are
“done maliciously,” and Ball has alleged nothing suggesting that Judge
Butts acted in the “clear absence of all jurisdiction.” Gallas v. Supreme
Court of Pa., 211 F.3d 760, 769 (3d Cir.2000) (citation and internal
quotation marks omitted). To the extent that Ball's request for injunctive
relief might not have been subject to dismissal under §
1915(e)(2)(B)(iii), it was subject to dismissal under § 1915(e)(2)(B)(ii)
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because such relief is not available against “a judicial officer for an act
... taken in such officer's judicial capacity” under these circumstances.
42 U.S.C. § 1983. Finally, we are satisfied that any amendment of Ball's
complaint would be futile. See Grayson v. Mayview State Hosp., 293
F.3d 103, 111 (3d Cir.2002). Thus, we will dismiss this appeal.
Ball v. Butts, No. 11-2862, 2011 WL 4375782, 1 (3d Cir. Sept 21, 2011). This
ruling, in turn, is entirely consistent with case law which unambiguously recognizes
that the dismissal of actions on grounds of absolute judicial immunity constitutes a
finding that the appeal was frivolous. See Mills v. Fischer, 645 F.3d 176, 177 (2d
Cir. 2011)(“[t]he IFP statute does not explicitly categorize as frivolous a claim
dismissed by reason of judicial immunity, but we will. Any claim dismissed on the
ground of absolute judicial immunity is ‘frivolous’ for purposes of 28 U.S.C. §
1915(g).”) Furthermore, we agree with the majority rule expressed by the courts that,
in this setting the successive dismissal of both a civil complaint, and subsequent
appeal, as frivolous will constitute two strikes under §1915(g). Chavis v. Chappius,
618 F.3d 162, 167-68 (2d Cir. 2010)(collecting cases).
Thus we find that, effective December 21, 2011, Ball has “three strikes” against
her and is, therefore, barred from proceeding in forma pauperis after that date in any
litigation unless she can demonstrate that she “is under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g).

21

From this premise, which we accept, the defendants further argue that Ball’s
leave to proceed in forma pauperis in the instant case should be revoked. Here we
disagree with the defendants. Our disagreement with the defendants on this issue is
based upon our analysis of the timing of Ball’s various filings and dismissals. As we
have noted, Ball incurred her third strike on December 21, 2011, when the dismissal
of her appeal in Ball v. Butts fully ripened with the expiration of the deadline for
pursuing a writ of certiorari with the United States Supreme Court. While the instant
complaint was filed on January 4, 2012, shortly after this third strike had ripened,
(Doc. 1.), Ball’s complaint makes it clear that she had previously endeavored on
December 2, 2011, to file this complaint as an amended complaint in another lawsuit,
Ball v. Hummel, No. 1:11-1422 (M.D. Pa.)(Doc. 25.), but had been instructed by the
court to file this case as a separate action in a report and recommendation dated
December 15, 2011. Ball v. Hummel, No. 1:11-1422 (M.D. Pa.)(Doc. 28.) In this
setting, where Ball had initially filed this complaint in forma pauperis prior to the
date upon which her third and final strike became ripe, we believe that §1915(g)
should not apply since “[a] dismissal does not qualify as a ‘strike’ for § 1915(g)
purposes unless and until a litigant has exhausted or waived his or her appellate
rights. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780

22

(10th Cir.1999); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996).”
Lopez v. U.S. Dept. of Justice, 228 F. App’x 218 (3d Cir. 2007).
We also find that the defendants’ efforts to rely upon the dismissal of
interlocutory appeals lodged by Ball in Ball v. Muncy SCI-Inst., 09-1367 (3d Cir.)
( Doc. 17, Exhibit H.), on June 12, 2009, and Ball v. Hill, 10-1703 (3d Cir.)(Doc. 17,
Exhibit I.), on October 6, 2010, are unavailing. While we concede that an
interlocutory appeal that is expressly dismissed as frivolous may count as a strike
under §1915(g), see King v. Anderson, 234 F. App’x 321 (5th Cir. 2007), nothing in
the appellate court orders entered in these two cases expressly defines either of these
interlocutory appeals as frivolous. Instead, these orders simply reflect the dismissal
of the interlocutory appeals for want of jurisdiction because the appeals were
improvident and premature, a circumstances which, as a matter of law, does not
constitute a strike against a pro se, in forma pauperis litigant. Tafari v. Hues, 473
F.3d 440 (2d Cir. 2007).
III.

Conclusion

In short, we find that Dawn Ball’s reckless and feckless course of pro se, in
forma pauperis litigation has now run its course since, effective December 21, 2011,
Ball has incurred three strikes under 28 U.S.C. §1915(g), and may not obtain leave
to proceed in forma pauperis unless she can demonstrate that she “is under imminent
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danger of serious physical injury.” 28 U.S.C. § 1915(g). However, we also conclude
that the instant complaint was first filed prior to December 21, 2011, and, therefore,
is not subject to § 1915(g)’s preclusive effect, since these three strikes had not
become final at the time this action was commenced. Therefore, for the foregoing
reasons, the defendant’s motion to revoke Ball’s in forma pauperis status, (Doc. 15.),
is DENIED.
So ordered, this 12th day of July 2012.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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