Milhouse v. O'Brien

Filing 81

MEMORANDUM OPINION AND ORDER DENYING MOTION TO SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS, AND TO AMEND OR CORRECT COMPLAINT DKT. NO. 80 . Signed by District Judge Irene M. Keeley on 7/27/2017. (copy pro se plaintiff via certified mail) (jmm) (Additional attachment(s) added on 7/27/2017: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KAREEM MILHOUSE,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:14CV16
(Judge Keeley)

TERRY O’BRIEN, Warden, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
Pending before the Court is the plaintiff’s motion to set
aside the Court’s judgment, to proceed IFP, and to amend or correct
his complaint (dkt. no. 80). For the reasons that follow, the Court
DENIES the motion.
BACKGROUND
On

January

27,

2014,

the

plaintiff,

Kareem

Milhouse

(“Milhouse”), filed a Bivens action, in which he alleged that
prison officials had violated his Eighth Amendment rights by
labeling him a “snitch” to other inmates (dkt. no. 1). Milhouse
alleged that he was facing unsafe conditions, including numerous
death threats, as a consequence of being labeled a snitch. He
claimed that, on January 18, 2014, he requested a transfer that
went ignored, but that prison officials could have eliminated “any
threat to bodily harm through immediate transfer.” Based on these
allegations, Milhouse sought $360,000,000 in damages.

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
In accordance with LR PL P 2, the Court referred this case to
the Honorable James E. Seibert, United States Magistrate Judge, who
performed the initial screening pursuant to 28 U.S.C. § 1915A. On
April 2, 2014, Magistrate Judge Seibert entered a report and
recommendation

(“R&R”),

recommending

that

the

Court

dismiss

Milhouse’s complaint as barred by the “three strikes” rule (dkt.
no. 43). The “three strikes” rule of the Prison Litigation Reform
Act (“PLRA”) provides that prisoners may file civil actions in
forma pauperis (“IFP”) subject to the following limitation:
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)

(emphasis

added).

In

support

of

his

recommendation, Magistrate Judge Seibert cited multiple cases
brought by Milhouse that were subsequently dismissed as frivolous,
malicious, or for failure to state a claim (dkt. no. 43 at 3, nn.
4 and 5).
On May 9, 2014, the Court adopted the R&R and dismissed
Milhouse’s

complaint

with

prejudice
2

(dkt.

no.

62).

Milhouse

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
appealed the Court’s decision to the Fourth Circuit Court of
Appeals. In a per curiam decision issued December 2, 2014, the
Fourth Circuit denied the appeal, finding no reversible error and
“affirm[ing]

for

the

reasons

stated

by

the

district

court.”

Milhouse v. O’Brien, 586 Fed. Appx. 126 (mem) (4th Cir. 2014).
On February 16, 2017, Milhouse filed the instant motion
seeking to set aside the Court’s judgment, to proceed IFP, and to
amend or correct his complaint (dkt. no. 80).1 He bases his motion
on an unpublished per curiam opinion by the Third Circuit Court of
Appeals, decided on February 11, 2016, that concluded he was not
subject to the three strikes rule. Millhouse v. Sage, 639 Fed.
Appx. 792, 793 (3rd Cir. 2016).2
DISCUSSION
Milhouse’s motion fails for two reasons. First, he failed to
move within a reasonable time under Rule 60. In addition, Milhouse
has had at least three cases dismissed as frivolous, meritless, or

1

Milhouse filed the identical motion in a sister case,
1:14cv56, which contains related claims and which had also been
dismissed in part based on the three strikes rule.
2

The Third Circuit correctly notes: “Millhouse has spelled his
last name ‘Milhouse’ in court filings. Prison records reflect the
spelling ‘Millhouse.’” Sage, 639 Fed. Appx. at 794, n. 2.
3

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
for failure to state a claim and, consequently, is subject to the
three strikes rule.
A.

Federal Rule of Civil Procedure 60
Federal Rule of Civil Procedure 60 provides in pertinent part:
.
(b)

.

.
Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may
relieve a party or its legal representative from a
final judgment, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly
discovered
evidence
that,
with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct
by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying
it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made
within a reasonable time--and for reasons (1),
(2), and (3) no more than a year after the
entry of the judgment or order or the date of
the proceeding.
. . .
(d)

Other Powers to Grant Relief. This rule does not
limit a court’s power to:
4

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
(1)
(2)
(3)

entertain an independent action to relieve a
party from a judgment, order, or proceeding;
grant relief under 28 U.S.C. § 1655 to a
defendant who was not personally notified of
the action; or
set aside a judgment for fraud on the court.

(emphasis in original). Milhouse moves specifically pursuant to
Rule 60(b)(6), 60(d)(2), and 60(d)(3). Subsections (d)(2) and
(d)(3), however, are simply inapplicable here. This is not an
action of which Milhouse was unaware — he initiated it. Nor is
there any suggestion of a fraud on the Court. Thus, the lone
question is whether the Court should set aside the judgment based
on Rule 60(b)(6), also referred to as the catchall clause.
Had Milhouse moved pursuant to subsections (b)(1), (b)(2), or
(b)(3), he would have been required to do so within one year of the
entry of judgment. See Fed. R. Civ. P. 60(c)(1). Because Milhouse
has moved pursuant to Rule 60(b)(6), however, he is not subject to
the mandatory one-year limitation from the entry of the judgment.
See Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006) (“[W]e
have held that “the first three clauses of Rule 60(b) and the
catchall clause are mutually exclusive.”). Nevertheless, a motion
under the catchall clause “must be made within a reasonable time.”
Fed. R. Civ. P. 60(c)(1).

5

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
When evaluating whether a motion is made within a reasonable
time, courts should “consider[s] the interest in finality, the
reason for delay, the practical ability of the litigant to learn
earlier

of

the

grounds

relied

upon,

and

prejudice

to

other

parties.” In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004).
Moreover, courts should grant relief under Rule 60(b) only in
“unique” or “extraordinary circumstances.” Id.; Ashford v. Steuart,
657 F.2d 1053, 1055 (9th Cir. 1981) (per curiam). Failure by the
movant to allege the extraordinary circumstances that led to the
delay is grounds to deny the motion, which will be reviewed only
for abuse of discretion. See Supermarket of Homes, Inc. v. San
Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1410 (9th Cir.
1986); Ashford, 657 F.2d at 1055.
The Court’s final judgment was entered on May 9, 2014, and
affirmed by the Fourth Circuit on January 26, 2015. The Third
Circuit Court of Appeals rendered its ruling on February 11, 2016,
yet Milhouse failed to file the instant motion until February 16,
2017, more than a year later — and nearly three years after the
Court entered its judgment in this case. The factors strongly weigh
against reopening this case.

6

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
First, as always, there is a significant interest in the
finality of litigation, which would weigh against reopening this
case nearly three years after the Court entered judgment. Milhouse
does not make any attempt whatsoever to explain the reasons for his
one year delay in filing the motion following the Third Circuit’s
decision. Although he could not have learned of the Third Circuit’s
decision any earlier than its entry on January 11, 2016, this does
not weigh in his favor because he chose to do nothing with that
information for over a year.3 Finally, the prejudice factor weighs
in favor of denying the motion. Employee turnover at the BOP and
spoilation of evidence are just two factors that could seriously
hamper any defense by the defendants. Because nearly three years
have passed since the entry of judgment in this case, and more than
three and a half years since the alleged incidents, reopening the
case now would seriously prejudice the defendants.
In conclusion, this case does not present any unique or
extraordinary circumstances that would warrant setting aside the

3

Certainly Milhouse was aware that the issue of whether he was
subject to the three strikes rule was pending in his Third Circuit
appeal, and that it was the basis for the dismissal of this case.
One would think that, if he had a meritorious suit for
$360,000,000, he would have acted more quickly in moving to attempt
to revive such a suit.
7

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
judgment under Rule 60. See In re Osborne, 379 F.3d at 283.
Milhouse’s delay has been unreasonably long and his motion is
entirely devoid of any effort to explain the reason for his delay.
Consequently, the Court DENIES the motion (dkt. no. 80).
B.

Three Strikes Rule
Even had Milhouse filed his motion within a reasonable time,

the Court would not set aside its judgment. The R&R entered by
Magistrate Judge Seibert, and adopted in its entirety by the Court,
concluded that the three strike rule barred Milhouse’s claim.
Nonetheless, the R&R evaluated the merits of his claims and
recommended that they “be denied and dismissed without prejudice as
frivolous and for failure to state a claim, pursuant to 28 U.S.C.
§1915A(b)(1), and also pursuant to 28 U.S.C. §§1915(g).” See Dkt.
No. 43 at 4 (emphasis added). Notably, although the Court adopted
the R&R and its reasoning in its entirety, it dismissed Milhouse’s
claims with prejudice.
Thus, it is evident that even though the three strike rule
barred Milhouse’s claims because he had failed to pay the required
fees, the Court effectively waived the fees and proceeded to
evaluate the merits of Milhouse’s claims. The R&R concluded, and
the Court agreed, that those claims were frivolous and failed to
8

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
state a claim. The three strike bar was no more than an alternative
ground for dismissal.
Also, for clarity’s sake, the Court notes that Milhouse is
subject to the three strike rule. With due respect to the Third
Circuit Court of Appeals, the Court has identified at least three
of Milhouse’s prior cases that count as strikes. Pursuant to 28
U.S.C. § 1915(g):
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.
(emphasis added).
The R&R entered in this case by Magistrate Judge Seibert
discussed Milhouse’s lengthy history of litigation, including
reference to some cases that qualified as strikes (dkt. no. 43 at
3). In its order adopting the R&R, the Court cited three nonexhaustive cases as examples of strikes: Milhouse v. Arbasak, Nos.
09-2709 & 09-2858 (3d Cir., Apr. 1, 2010); Milhouse v. Levi, No.
07-4048

(3d

Cir.,

Feb.

27,

2008);

1:09CV1365 (M.D. Pa., Feb. 14, 2011).
9

Milhouse

v.

Jordan,

No.

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
The Third Circuit’s decision in Sage specifically addressed
two of these cases, concluding that Arbasak and Levi were not
strikes. Although that unpublished opinion is not binding on the
Court, the Third Circuit’s evaluation as to whether its own
decisions should count as strikes is persuasive. Contrary to the
Third Circuit’s conclusion, however, there appear to be at least
three cases that clearly qualify as strikes.4
In Milhouse v. Bledsoe, Civ. No. 1:10-cv-53 (M.D. Pa. Oct. 6,
2010), the district court granted the defendants’ motion to dismiss
based on “Milhouse’s failure to state a claim.” The Third Circuit
specifically addressed this case in Sage, as it was one of the case
relied on by the district court. The Third Circuit concluded, and
the Court agrees, that this clearly counts as a strike against
Milhouse.
In Brown v. Blue, et al.,5 Civ. No. 3:09-cv-1946 (M.D. Pa.
Nov. 10, 2009), the district court dismissed Milhouse’s complaint
“as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).” Such a
4

Although not entirely clear, the Third Circuit’s decision in
Sage appears to be limited solely to a review of those cases relied
on by the district court, without an independent review of the
entirety of Milhouse’s litigation history.
5

Although Milhouse was not listed in the caption of this case,
he signed the complaint as an additional plaintiff.
10

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
dismissal clearly qualifies as a strike. The court there also noted
that “[a]ny appeal from this Order will be deemed frivolous,
without probable cause and not taken in good faith.” Id. at 7. The
district court denied a subsequent motion for reconsideration and
the Third Circuit dismissed the plaintiffs’ appeal for failure to
prosecute. Id. at dkt. no. 14.
In Milhouse v. Peoria, et al., Civ. No. 1:10-cv-153 (M.D. Pa.
Nov. 22, 2010), the district court dismissed Milhouse’s Bivens
claims for failure to state a constitutional violation. The court
also noted that “[a]ny appeal from this order is deemed frivolous
and not in good faith.” Id. at 43. Accordingly, this case also
qualifies as a strike against Milhouse.
Finally, in Milhouse v. Jordan, et al., 1:09-cv-1365 (M.D. Pa.
Feb. 14, 2011), the district court dismissed Milhouse’s Bivens
action on summary judgment for failure to state a claim.

As to his

use of excessive force claim, the court concluded that Milhouse
“failed to set forth an Eighth Amendment claim with respect to the
use of force incident . . . .” Id. at 22. As to his claim of
deliberate indifference to serious medical needs, Milhouse “failed
to establish a constitutional violation.” Id. at 25. And finally,
“Milhouse [] failed to state a claim of retaliation.” Id. at 27.
11

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
Consequently, because Milhouse failed to state any valid claim, the
court granted the defendants summary judgment. Accordingly, this is
another strike against Milhouse. See Blakely v. Wards, 738 F.3d
607, 618 (4th Cir. 2013) (en banc) (holding that suits dismissed at
summary judgment as frivolous, meritless, or for failure to state
a claim qualify as PLRA strikes).
Ultimately, Milhouse has had at least three cases dismissed as
frivolous, meritless, or for failure to state a claim. This does
not

include

similarly

multiple

dismissed,

other
but

suits
in

in

which

which

some

claims

other

claims

were

were
not

administratively exhausted; such mixed outcome cases do not qualify
as strikes under the PLRA.6 Indeed, Milhouse is precisely the type
of abusive filer who presses the types of meritless claims that the
PLRA was intended to prevent.7 Because Milhouse had at least three
6

See Sage, 639 Fed. Appx. at 794 (“A ‘dismissal based on a
prisoner’s failure to exhaust administrative remedies does not
constitute a PLRA strike, unless a court explicitly and correctly
concludes that the complaint reveals the exhaustion defense on its
face and the court then dismisses the unexhausted complaint for
failure to state a claim.’” (quoting Ball v. Famiglio, 726 F.3d
448, 460 (3d Cir.2013), abrogated in part by Coleman v. Tollefson,
135 S.Ct. 1759, 1763 (2015).
7

As noted above, this case also qualifies as a strike, as the
Court dismissed Milhouse’s complaint as frivolous and for failure
to state a claim, as does the dismissal of his companion case
before this Court at 1:14cv56. Furthermore, It bears noting that
12

MILHOUSE V. O’BRIEN

1:14CV16

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]
strikes, the Court declines to set aside its judgment in this case
and DENIES his motion.
CONCLUSION
For the reasons discussed, the Court DENIES Milhouse’s motion
to set aside judgment, to proceed in forma pauperis, and to amend
or correct complaint (dkt. no. 80).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record and the pro se
plaintiff, return receipt requested.
DATED: July 27, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

Milhouse has continued to accumulate strikes. On February 10, 2017,
United States District Judge Sylvia H. Rambo filed a notice in the
seven cases initiated by Milhouse that were in front of her alone,
indicating that since the Third Circuit’s ruling in Sage, Milhouse
had earned at least two more strikes. See, e.g., Milhouse v.
Ebbert, Civ. No. 1:16-cv-1348, dkt. no. 15 (M.D. Pa. Feb. 10, 2017)
(noting that Milhouse had earned two more strikes in Milhouse v.
Heath, Civ. No. 15-cv-468 (M.D. Pa. Mar. 19, 2015), and Milhouse v.
John Doe 1-3, Judges of the Third Circuit Court of Appeals, Civ.
No. 16-cv-146 (M.D. Pa. Jan. 27, 2016)).
13