Milhouse v. O'Brien et al

Filing 35

MEMORANDUM OPINION AND ORDER DENYING MOTION TO SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS, AND TO AMEND OR CORRECT COMPLAINT: It is ORDERED that Plaintiff's 34 Motion to Set Aside Judgment, for Leave to Proceed in forma pauperis, and to Amend/Correct Complaint is hereby DENIED. Signed by District Judge Irene M. Keeley on 7/28/17. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd)

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

//

CIVIL ACTION NO. 1:14CV56
(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. 34]
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. 34). For the reasons that follow, the Court
DENIES the motion.
BACKGROUND
On

March

31,

2014,

the

plaintiff,

Kareem

Milhouse

(“Milhouse”), filed a Bivens action, in which he alleged that
prison officials had violated his Eighth Amendment rights by
failing to provide him adequate medical treatment and proper
medication (dkt. no. 1). On April 14, 2014, he filed a motion to
proceed pursuant to imminent danger, alleging that, as a result of
the defendants’ indifference, he was in imminent danger from
self-inflicted injury and death by suicide. He claimed that he
twice attempted suicide because of depression resulting from death
threats from other inmates who believed that Milhouse was a

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
“snitch.” On May 1, 2014, without leave of court, Milhouse filed an
amended complaint, naming only two of the original defendants,
“Fanning” and Terry O’Brien,” and adding a third, “W. Odom,
Associate Warden, USP Hazelton” (dkt. no. 7). The amended complaint
asserted a lone claim for deliberate indifference and sought
injunctive relief in the form of a court order requiring prison
officials to provide him with proper treatment, as well as monetary
damages of $30,000,000 for his pain and suffering.
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
May

7,

2014,

recommendation
dismiss

Magistrate
(“R&R”),

Milhouse’s

Judge

Seibert

recommending

complaint

and

entered

that
amended

the

a

report

Court

complaint

deny

and
and

without

prejudice as “frivolous and for failure to state a claim, pursuant
to 28 U.S.C. § 1915(A(b)(1)” (dkt. no. 15 at 6). The R&R also
recommended that the Court deny Milhouse’s motion to proceed in
forma pauperis pursuant 28 U.S.C. § 1915(g), also known as the
“three strikes” rule (dkt. no. 15 at 6). The “three strikes” rule
of

the

Prison

Litigation

Reform

2

Act

(“PLRA”)

provides

that

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
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. 15 at 4, nn.
8 and 9).
On March 3, 2015, the Court adopted the R&R in part, but
allowed Milhouse to proceed IFP on his claim for injunctive relief
requesting future treatment (dkt. no. 24). The Court concluded that
Milhouse sufficiently alleged potential continuing or future injury
such that he could proceed under the imminent danger exception to
the three strike rule. Id. at 3-5 (citing Smith v. Mayes, 358 Fed.
Appx. 411, 412 (4th Cir. 2009).
The

Court

then

proceeded

to

evaluate

that

portion

of

Milhouse’s complaint alleging future risk of harm and seeking
3

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
prospective relief and ordered that it be dismissed with prejudice
for failure to state a claim upon which such relief can be granted.
Id. at 7. Further, the Court adopted the portion of the R&R
recommending that Milhouse not be allowed to proceed IFP on any
claims seeking relief for any past misconduct, and dismissed those
claims without prejudice. Id. The Court, at that time, was silent
on whether the R&R had correctly concluded that the claims seeking
relief for any past misconduct were frivolous and had failed to
states a claim.

Milhouse appealed the Court’s decision to the

Fourth Circuit Court of Appeals, which, on June 17, 2015, dismissed
the appeal for failure to prosecute (dkt. no. 33).
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. 34).1 He bases his motion
on an unpublished per curiam opinion by the Third Circuit Court of
Appeals,

decided

on

February

11,

1

2016,

in

which

that

court

Milhouse filed the identical motion in a sister case,
1:14cv16, which contains related claims and which had also been
dismissed in part based on the three strikes rule.
4

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
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, he has
had at least three cases dismissed as frivolous, meritless, or for
failure to state a claim; consequently, he 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;

2

The Third Circuit correctly notes that “Millhouse has spelled
his last name ‘Milhouse’ in court filings. Prison records reflect
the spelling ‘Millhouse.’” Sage, 639 Fed. Appx. at 794, n. 2.
5

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
(4)
(5)

(6)

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

(emphasis in original). Here, Milhouse has moved 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 not aware — he initiated it. Nor is there any
suggestion of a fraud on the Court. Thus, the sole 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
6

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
entry of judgment. See Fed. R. Civ. P. 60(c)(1). Because he 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).
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.
7

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
Although the Court entered its final judgment on March 3,
2015, and the decision of the Third Circuit Court of Appeals was
entered on February 11, 2016, Milhouse failed to file the instant
motion until February 16, 2017, more than a year later — and almost
two years after the Court’s judgment in this case. The factors
strongly weigh against reopening this case.
First, as always, there is a significant interest in the
finality of litigation, which would weigh against reopening this
case more than two 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 sooner 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

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 $30,000,000,
he would have acted more quickly in moving to attempt to revive
such a suit.
8

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
hamper any defense by the defendants. Because more than two 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
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. 34).
B.

Three Strikes Rule
Even if Milhouse had 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 relevant part by the
Court, concluded that the three strikes 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).

9

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
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 R&R had effectively waived the fees and proceeded to
evaluate the merits of Milhouse’s claims. The R&R concluded, and
the Court agrees, that those claims were frivolous and failed to
state a claim. The three strike bar was no more than an alternative
ground for dismissal. Notably, although the Court adopted the R&R
insofar as it concluded that Milhouse’s claims seeking relief for
any past misconduct were barred pursuant to the three strikes rule,
it was silent as to the R&R’s conclusion that those claims were
nonetheless frivolous and failed to state a claim. The Court now
takes the opportunity to clarify that oversight and concludes
unequivocally that all of Milhouse’s claims were frivolous and
failed to state a claim upon which relief may be granted.
Also, for clarity’s sake, the Court notes that Milhouse is
indeed 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
10

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
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 some
cases that qualified as strikes (dkt. no. 15 at 4, nn. 8 and 9).
While the Third Circuit’s decision in Sage concluded that Milhouse
was not subject to the three strikes rule (finding that two cases
relied on by the lower court did not qualify as strikes, Sage, 639
Fed. Appx. at 794-95), that unpublished opinion is not binding on
the Court as 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

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.
11

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
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
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

5

Although Milhouse was not listed in the caption of this case,
he signed the complaint as an additional plaintiff.
12

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
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.
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
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
13

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
of abusive filer who presses the types of meritless claims that the
PLRA was intended to prevent.7 Because Milhouse has had at least
three 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. 34).
It is so ORDERED.

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 1:14cv16. Furthermore, It bears noting that
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)).
14

MILHOUSE V. O’BRIEN

1:14CV56

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS,
AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 34]
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 28, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

15