Dawn Ball v. Famiglio , 726 F.3d 448 ( 2013 )


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  •                              PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    Nos. 12-1067/2604
    _____________
    DAWN BALL,
    Appellant
    v.
    DR. FAMIGLIO; GLORIA DIGGAN, R.N.; NURSE
    DILLELA; VANESSA NICOLA, HYGENIST; NELMS,
    DENTIST; NURSE GREEN; BRIAN MENCH, NURSE;
    MRS. MENCH; MS. JARRET; MS. BROWN; MS. WELL
    CHANCE; NURSE BOYER; P.A. EGAN; P.A.
    HIMELSBACK; ERICA STROUP; EYE DOCTOR; MS.
    JOHNSON; MAJOR SMITH; DR. FABIAN; CAPTAIN
    PINARD; MS. GAMBLE; DR. WOODS; DR.
    SHIPTOWSKI; SGT. RAGAR; SGT. SAAR; SGT.
    JOHNSON; LT. BOYER; NURSE CANDY OTT
    _______________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. No. 08-cv-700)
    District Judge: Hon. Yvette Kane
    _______________
    Argued
    May 30, 2013
    Before: JORDAN, VANASKIE and COWEN, Circuit
    Judges.
    (Filed: August 9, 2013)
    _______________
    Dawn Marie Ball (#OL-0342)
    Muncy SCI
    P. O. Box 180
    Muncy, PA 17756
    Pro Se Appellant
    Kathryn M. Kenyon [ARGUED]
    Pietragallo, Gordon, Alfano, Bosick & Raspanti
    301 Grant Street – 38th Fl.
    Pittsburgh, PA 15219
    Counsel for Appellees Famiglio, Egan, Himelsback,
    Stroup, Eye Doctor, Johnson, and Fabian
    Jaime B. Boyd
    Raymond W. Dorian [ARGUED]
    Pennsylvania Dept. of Corrections
    Office of Chief Counsel
    1920 Technology Pkwy.
    Mechanicsburg, PA 17050
    Counsel for Appellees Diggan
    2
    Alan S. Gold [ARGUED]
    Gold & Ferrante
    261 Old York Road - #526
    Jenkintown, PA 19046
    Counsel for Appellees Woods, Shiptowski
    Matthew E. Carey [ARGUED]
    Thomas J. Derbesy [ARGUED]
    Richard H. Frankel
    Drexel University
    Earle Mack School of Law
    3320 Market Street
    Philadelphia, PA 19104
    Court Appointed Amicus Curiae
    _______________
    OPINION OF THE COURT
    _______________
    JORDAN, Circuit Judge.
    Dawn Ball, an inmate in the Restricted Housing Unit
    at the Pennsylvania State Correctional Institution Muncy
    (“SCI-Muncy”), appeals the denial of her motion for a
    preliminary injunction and the grant of summary judgment to
    the defendants in this pro se action she brought pursuant to 42
    U.S.C. § 1983, in which she alleges deliberate indifference to
    her medical needs in violation of the Eighth Amendment.
    Because Ball has asked to proceed in forma pauperis (“IFP”)
    on appeal, we must determine whether she is eligible for that
    status under the Prison Litigation Reform Act (“PLRA”),
    Pub. L. No. 104-134, 110 Stat. 1321 (1996). For the
    following reasons, we conclude that she is not eligible for IFP
    3
    status because she had accrued three “strikes” under the
    PLRA and was not in imminent danger of serious physical
    injury when she brought these appeals. We will therefore
    deny her motion to proceed IFP and will also deny without
    prejudice her motion for appointment of counsel.
    I.     BACKGROUND
    A.     Statutory Background
    The federal IFP statute, enacted in 1892 and currently
    codified at 28 U.S.C. § 1915, “is designed to ensure that
    indigent litigants have meaningful access to the federal
    courts,” Neitzke v. Williams, 
    490 U.S. 319
    , 324 (1989), and
    that “‘no citizen shall be denied an opportunity to commence,
    prosecute, or defend an action, civil or criminal, in any court
    of the United States, solely because ... poverty makes it
    impossible ... to pay or secure the costs’ of litigation.”
    Denton v. Hernandez, 
    504 U.S. 25
    , 31 (1992) (alterations in
    original) (quoting Adkins v. E.I. DuPont de Nemours & Co.,
    
    335 U.S. 331
    , 342 (1948)). Pertinent here, the statute allows
    “[a] prisoner seeking to bring a civil action or [to] appeal a
    judgment in a civil action” to proceed “without prepayment of
    fees or security therefor,” if she can demonstrate that she is
    unable to pay such fees. 28 U.S.C. § 1915(a)(2).
    Congress recognized, however, that “a litigant whose
    filing fees and court costs are assumed by the public, unlike a
    paying litigant, lacks an economic incentive to refrain from
    filing frivolous, malicious, or repetitive lawsuits.” 
    Id. (internal quotation marks
    omitted). And indeed, despite
    efforts to curtail the opportunity for abusive filings that free
    court access can provide, “[p]risoner litigation continues to
    4
    account for an outsized share of filings in federal district
    courts.” Jones v. Bock, 
    549 U.S. 199
    , 203 (2007) (internal
    quotation marks omitted). In 1996, in response to the tide of
    “substantively meritless prisoner claims that have swamped
    the federal courts,” Shane v. Fauver, 
    213 F.3d 113
    , 117 (3d
    Cir. 2000) (original emphasis omitted), Congress enacted the
    PLRA to “filter out the bad claims and facilitate consideration
    of the good,” 
    Bock, 549 U.S. at 204
    .
    The PLRA sought to “reduce the quantity and improve
    the quality of prisoner suits,” Porter v. Nussle, 
    534 U.S. 516
    ,
    524 (2002), in three main ways. First, it introduced an
    exhaustion requirement, which bars an action by a prisoner
    complaining of prison conditions “until such administrative
    remedies as are available are exhausted.”           42 U.S.C.
    § 1997e(a). Second, it established “prescreening” provisions
    that require a court to dismiss an action or appeal sua sponte
    if the action is “frivolous” or “malicious,” “fails to state a
    claim upon which relief may be granted,” or “seeks monetary
    relief from a defendant who is immune from such relief.” See
    28 U.S.C. §§ 1915(e)(2)(B)(i), (e)(2)(B)(ii), 1915A(b); 42
    U.S.C. § 1997e(c). Third, it created a so-called “three
    strikes” rule to limit the number of lawsuits brought by
    prisoners with a history of meritless litigation. Under that
    provision, the language of which tracks that of the
    prescreening provisions, a prisoner seeking IFP status may
    not
    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
    5
    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). But “[i]t is important to note that
    § 1915(g) does not block a prisoner’s access to the federal
    courts. It only denies the prisoner the privilege of filing
    before he has acquired the necessary filing fee.” Abdul-Akbar
    v. McKelvie, 
    239 F.3d 307
    , 314 (3d Cir. 2001) (en banc).1
    B.     Facts2
    Ball is an indigent inmate at SCI-Muncy who suffers
    from a variety of physical and mental ailments. Among her
    physical afflictions, she has “serious back problems” and
    osteoarthritis (App. at 92, 100), she fears that she is losing her
    vision due to a lack of medical treatment for her eyes, and she
    1
    The prisoner is still required to pay the costs of her
    action or appeal, a departure from pre-PLRA practice, see
    Denton v. Hernandez, 
    504 U.S. 25
    , 27 (1992), paying an
    initial partial fee followed by installment payments until the
    entire fee is paid. 28 U.S.C. § 1915(b)(1).
    2
    We set forth the facts in the light most favorable to
    Ball because “th[e] initial assessment of the in forma pauperis
    plaintiff’s factual allegations must be weighted in favor of the
    plaintiff.” 
    Denton, 504 U.S. at 32
    . However, the Supreme
    Court has, in the IFP context, “reject[ed] the notion that a
    court must accept as having an arguable basis in fact all
    allegations that cannot be rebutted by judicially noticeable
    facts.” 
    Id. (citation and internal
    quotation marks omitted).
    6
    is asthmatic. Also, by her own account, she suffers from
    several mental illnesses that include “PTSD, disassociative
    [sic] disorder, ... phobias, agoraphobia, severe anxiety, ...
    cognitive problems and disorders, ... paranoid-schizophrenic,
    constant worry, frightened[,] scared, ... bipolar, manic
    depressive, [and] mood swings that are so severe, can’t think
    clearly ... .” Ball v. SCI Muncy, No. 08-cv-700 (M.D. Pa.)
    (Doc. 216 (“Magistrate Judge’s Report”), pg. 1) (internal
    quotation marks omitted).
    Ball’s claims in the present action fall into several
    broad categories. First, she alleges that she sustained burns,
    bruises, cuts, and contusions at the hands of prison officials,
    and that she was subsequently denied medical attention for
    those injuries. Second, she complains that Dr. Famiglio
    “allows the prison officials to take her mattress [and] refuse
    her needed meds” (App. at 100), and that prison officials have
    also denied her the use of her wheelchair and cane,
    exacerbating the pain caused by her back problems and
    degenerative joint disease. Third, Ball alleges that her vision
    is deteriorating due to a lack of proper medical treatment for
    her eyes. Fourth, she alleges that she is “living in a room
    with dangerous black mold” (App. at 94) and that Dr.
    Famiglio is “continually allowing the prison officials to spray
    her with o/c (mace)” (id. at 100), both of which endanger her
    health because she suffers from chronic asthma. More
    generally, Ball alleges that prison officials have subjected her
    to mistreatment in retaliation for the many lawsuits she has
    filed against SCI-Muncy and its personnel, and that Dr.
    Famiglio denied her medical treatment because she refused
    his romantic advances.
    7
    Appellees deny all of Ball’s allegations, asserting that
    “Ms. Ball ... has no need for such [medical] care,” (App. at
    88) and that she “has available to her emergency medical
    care,” (id. at 89). They also state that Ball has been
    described as a “possible malingerer,” that she “feigns
    blindness,” and that she “claims back pain ... and numerous
    other conditions that have not been supported by any
    objective findings or examinations.” (App. at 88-89.) They
    also allege that she frequently refuses to leave her cell to see
    medical caregivers.
    C.     Procedural History
    1.     Litigation Prior to the Present Appeals3
    The present action is part of a larger pattern of
    repeated and entirely unsuccessful litigation brought by Ball
    in the United States District Court for the Middle District of
    Pennsylvania. We discuss only those actions that are relevant
    to the appeals now before us.
    The germane history began in March 2008, with a
    complaint filed against SCI-Muncy in which Ball alleged
    physical assault, denial of medical treatment, and other
    mistreatment. See Ball v. SCI Muncy, No. 08-cv-0391 (M.D.
    Pa.). The District Court dismissed that action in December
    2008 pursuant to Federal Rule of Civil Procedure 12(b)(6),
    noting that Ball’s failure to exhaust her administrative
    remedies, as required by the PLRA, was stated in her
    3
    All of Ball’s actions discussed in this opinion were
    filed pursuant to 42 U.S.C. § 1983.
    8
    complaint. See 
    id. (Doc. 36). We
    affirmed that dismissal in
    July 2010. See 
    id. (Doc. 44). Ball
    filed a second civil action in May 2009, claiming
    that her constitutional rights were violated because she was
    not allowed to participate by phone in a hearing on a paternity
    matter she had filed in state court. See Ball v. Hartman, No.
    09-cv-0844, 
    2010 WL 597401
    (M.D. Pa. Feb. 16, 2010). In
    January 2010, the District Court granted the motion to
    dismiss filed by one of the defendants, observing that “[t]he
    complaint lacks any allegations against [the defendant], who
    is not a prison employee, but rather, a court administrator in
    Northhampton County.” See Ball v. Hartman, No. 09-cv-
    0844, 
    2010 WL 146319
    , at *5-*7 (M.D. Pa. Jan. 11, 2010).4
    In February 2010, the Court then dismissed the remaining
    claims pursuant to Rule 12(b)(6) on the grounds that the
    defendants were not personally involved in the alleged
    mistreatment and could not be sued in their supervisory
    capacity under § 1983, and that Ball had not pled an injury-
    in-fact and therefore lacked standing. See Hartman, 
    2010 WL 597401
    , at *2-*3.5 We affirmed the District Court’s
    4
    The District Court also explained that, “even if the
    complaint contained factual allegations against [the
    defendant], she would be immune from suit,” Ball v.
    Hartman, 09-cv-0844, 
    2010 WL 146319
    , at *6 (M.D. Pa. Jan.
    11, 2010), in both her official capacity (pursuant to the
    Eleventh Amendment) as well as her individual capacity (in
    accordance with the doctrine of quasi-official immunity), 
    id. at *6-*7. 5
             The orders accompanying the Hartman opinions
    granted the defendants’ motions to dismiss without stating the
    reason for doing so. The second order did state that any
    9
    judgment in October 2010. See Ball v. Hartman, 396 F.
    App’x 823, 825 (3d Cir. 2010) (per curiam).
    In June 2011, Ball filed another lawsuit, this time
    against the state court judge who had ordered her transferred
    to SCI-Muncy. Ball alleged that the judge ordered the
    transfer with malicious intent. See Ball v. Butts, No. 11-cv-
    1068 (M.D. Pa.). The District Court dismissed that case
    pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) because the
    defendant was entitled to absolute immunity. See Butts, No.
    11-cv-1068 (Doc. 8). We dismissed the appeal, stating that it
    was frivolous because it “lack[ed] an arguable basis either in
    law or in fact,” Ball v. Butts, 445 F. App’x 457, 457 (3d Cir.
    2011) (nonprecedential), due to the absolute immunity of the
    defendant judge and the lack of any evidence of malice.
    Ball filed many other lawsuits in the District Court, all
    of which followed the same basic pattern as SCI Muncy,
    Hartman, and Butts. She has a total of more than thirty
    appeal from the order “is deemed frivolous and not in good
    faith,” a certification made pursuant to 28 U.S.C.
    § 1915(a)(3). Ball v. Hartman, No. 09-cv-0844, 
    2010 WL 597401
    , *4 (M.D. Pa. Feb. 16, 2010). It nevertheless appears
    that Ball’s Hartman complaint was dismissed for failure to
    state a claim, because the Court characterized the personal
    involvement of a § 1983 defendant as an element of the
    claim. See 
    id. at *2 (listing
    “conduct complained of ...
    committed by a person acting under color of state law” as one
    of the “essential elements” of a § 1983 claim); Hartman, 
    2010 WL 146319
    , at *6 (“The complaint lacks any allegations
    against [the defendant], who is not a prison employee, but
    rather, a court administrator in Northhampton County.”).
    10
    actions to her name as of the date of this opinion. All but five
    of them have been dismissed by the District Court, and those
    remaining five are still pending. As a result of the dismissals,
    Ball currently has twenty-two appeals before us in addition to
    the present appeals.6
    2.     The Present Appeals
    Ball commenced this particular lawsuit on April 14,
    2008, and filed an amended complaint on March 12, 2010.
    The amended complaint endeavors to advance Eighth
    Amendment claims of deliberate indifference to Ball’s
    medical needs based on the quality of care that she received
    between 2006 and 2008. Ball also filed a motion for a
    preliminary injunction, which the District Court denied by
    order dated December 8, 2011. Ball filed a timely notice of
    appeal.7
    6
    That does not include two additional appeals related
    to the case from which the present appeals arise, Nos. 10-
    1700, 11-2629. We decided the appeal at 10-1700, affirming
    the District Court’s denial of another of Ball’s motions for a
    preliminary injunction (not the one presently at issue). See
    Ball v. Dr. Famiglio et al., 396 F. App’x 836 (3d Cir. 2010)
    (per curiam). The appeal at 11-2629 was dismissed for
    failure to prosecute.
    7
    Her notice of appeal was filed on January 4, 2012,
    and her appeal was docketed on January 17, 2012 as No. 12-
    1067. As discussed in Part II.A.3, infra, the date an appeal
    commences is important for determining whether a dismissal
    counts as a PLRA strike for purposes of that appeal.
    11
    Ball originally sued some twenty-eight corrections
    officers, medical personnel, and contract health providers
    employed or providing services at SCI-Muncy. Through the
    process of pretrial litigation, the number of defendants was
    reduced, so that the complaint named thirteen department of
    corrections medical and correctional staff as defendants,
    along with five contract health providers who provided
    medical treatment to Ball. In response to motions by the
    defendants, the District Court also dismissed a number of
    claims from the lawsuit, leaving only claims for inadequate
    medical treatment.
    On August 15, 2011, the remaining defendants filed
    motions for summary judgment. The assigned Magistrate
    Judge subsequently issued a Report and Recommendation
    that summary judgment be granted based on Ball’s failure to
    exhaust her administrative remedies. See Ball v. SCI Muncy,
    No. 08-cv-700, (Doc. 216). On May 22, 2012, the District
    Court adopted the recommendation and granted summary
    judgment to the defendants with respect to all of Ball’s
    claims. See Ball v. SCI Muncy, No. 08-cv-700 (Doc. 239).
    Ball again timely appealed,8 and the two appeals – the
    first from the denial of a preliminary injunction and the
    second from the rulings on the merits – were consolidated.
    On June 20, 2012, Ball filed a motion to proceed IFP as well
    as two motions asserting that she was in imminent danger of
    serious physical injury.9 She also filed a motion for
    8
    Her notice of appeal was filed on June 4, 2012, and
    her appeal was docketed June 8, 2012 as No. 12-2604.
    9
    In August 2012, the District Court revoked Ball’s IFP
    status on the grounds that she had accrued three strikes,
    12
    appointment of counsel. Those motions were referred to this
    merits panel, and amicus counsel was appointed.10
    II.    DISCUSSION11
    To date, Ball has accumulated more than twenty-five
    dismissals of actions and appeals by the District Court and
    this Court. How to consider those dismissals for purposes of
    the PLRA is what is principally at issue now. As discussed
    above, under the PLRA’s “three strikes” provision, a prisoner
    may not “bring a civil action or appeal a judgment in a civil
    action or proceeding” if the prisoner has, on three or more
    prior occasions, had an action or appeal “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
    counting its own dismissals in Hartman and Butts and our
    dismissal of the Butts appeal. See Ball v. Hummel, No. 12-cv-
    0814, 
    2012 WL 3614045
    , at *1 (M.D. Pa. Aug. 21, 2012).
    10
    Our Amicus is the Appellate Litigation Clinic of the
    Earle Mack School of Law at Drexel University, for whose
    diligent and expert assistance we express sincere gratitude.
    11
    The District Court had jurisdiction pursuant to 28
    U.S.C. §§ 1331, 1343(a)(3), (a)(4). We have jurisdiction
    under 28 U.S.C. § 1291. Because the issues raised in this
    appeal arise from Ball’s motion to proceed IFP, and the
    District Court did not address her IFP status in this case, there
    is no district court order under review. However, this case
    presents questions of law regarding the proper interpretation
    of 28 U.S.C. § 1915(g), which would be subject to plenary
    review in any event. Gibbs v. Cross, 
    160 F.3d 962
    , 964 (3d
    Cir. 1998).
    13
    imminent danger of serious physical injury.” 28 U.S.C.
    § 1915(g). The District Court did not dispose of Ball’s claims
    in this case under the three strikes provision, but rather based
    on Ball’s failure to exhaust her administrative remedies, as
    required under another provision of the PLRA, see 42 U.S.C.
    § 1997e(a). However, in her appeal to us, Ball has requested
    permission to proceed IFP, which requires that we determine
    whether she is eligible for that status in light of the three
    strikes rule.
    Given the character of previous dismissals in Ball’s
    legal proceedings, this appeal necessitates a determination of
    whether a dismissal for failure to exhaust administrative
    remedies counts as a PLRA strike, and whether dismissal on
    the basis of absolute immunity qualifies as a PLRA strike.
    Because we conclude that Ball had three strikes for purposes
    of the PLRA at the time she filed the present appeals, we
    must also determine whether she may still proceed IFP based
    on imminent danger of serious physical injury. We take up
    each of those questions in turn.
    A.     Application of the PLRA’s Three Strikes Rule
    1.     Dismissals for Failure to Exhaust
    The PLRA provides that “[n]o action shall be brought
    with respect to prison conditions ... by a prisoner confined in
    any jail, prison, or other correctional facility until such
    administrative remedies as are available are exhausted.” 42
    U.S.C. § 1997e(a). “Requiring exhaustion allows prison
    officials an opportunity to resolve disputes concerning the
    exercise of their responsibilities before being haled into
    court.” 
    Bock, 549 U.S. at 204
    . It also “has the potential to
    reduce the number of inmate suits, and also to improve the
    14
    quality of suits that are filed by producing a useful
    administrative record.” 
    Id. In their “attempt[s]
    to implement the exhaustion
    requirement, some lower courts have imposed procedural
    rules that have become the subject of varying levels of
    disagreement among the federal courts of appeals.” 
    Id. One issue on
    which the circuits are split is the interaction of the
    PLRA’s exhaustion requirement and the three strikes rule.
    The majority view seems to be that, based on the plain
    language of the three strikes provision, which does not
    mention exhaustion, dismissal for failure to exhaust does not
    count as a PLRA strike. See Turley v. Gaetz, 
    625 F.3d 1005
    ,
    1013 (7th Cir. 2010) (“[N]either the dismissal of a complaint
    in its entirety for failure to exhaust nor the dismissal of
    unexhausted claims from an action containing other viable
    claims constitutes a strike under § 1915(g).”); Owens v. Isaac,
    
    487 F.3d 561
    , 563 (8th Cir. 2007) (per curiam) (“The first
    case was dismissed without prejudice for failure to exhaust
    administrative remedies; such a dismissal is not a strike under
    section 1915(g).”); Green v. Young, 
    454 F.3d 405
    , 409 (4th
    Cir. 2006) (“[R]outine dismissal on exhaustion grounds is not
    a strike for purposes of the PLRA.”); Snider v. Melindez, 
    199 F.3d 108
    , 115 (2d Cir. 1999) (“[D]ismissal by reason of a
    remediable failure to exhaust should not count as a strike.”).
    Courts following the majority approach treat failure to
    exhaust as an affirmative defense, so that “[a] prisoner’s
    failure to exhaust administrative remedies is statutorily
    distinct from his failure to state a claim upon which relief
    may be granted.” 
    Turley, 625 F.3d at 1013
    .
    However, there are decisions holding that failure to
    exhaust constitutes a strike, notwithstanding that exhaustion
    15
    is not mentioned in §1915(g). The reasoning is that an action
    “that fails to allege the requisite exhaustion of remedies is
    tantamount to one that fails to state a claim upon which relief
    may be granted,” which is a specified ground for a strike.
    Rivera v. Allin, 
    144 F.3d 719
    , 731 (11th Cir. 1998),
    abrogated in part by Jones v. Bock, 
    549 U.S. 199
    (2007).
    Courts following that line start from the premise that, due to
    the mandatory nature of exhaustion, it is an “essential
    allegation of a prisoner’s claim.” Steele v. Fed. Bureau of
    Prisons, 
    355 F.3d 1204
    , 1209 (10th Cir. 2003), abrogated in
    part by Jones v. Bock, 
    549 U.S. 199
    (2007). They thus
    “conclude that § 1997e(a) imposes a pleading requirement on
    the prisoner,” so that if the plaintiff fails to plead exhaustion,
    the court may dismiss the complaint on a Rule 12(b)(6)
    motion. 
    Id. at 1210. That
    minority view appears also to be
    based, in part, on the observation that exhaustion should not
    be seen as an affirmative defense “because it cannot be
    waived.” 
    Id. at 1209 (citing
    Fed. R. Civ. P. 8(c) (“Failure to
    plead an affirmative defense results in a waiver of that
    defense.”)).12
    The United States Court of Appeals for the District of
    Columbia Circuit follows neither the majority nor the
    12
    That conclusion is at odds with the Supreme Court’s
    subsequent holding in Jones v. Bock, 
    549 U.S. 199
    (2007),
    that “failure to exhaust is an affirmative defense under the
    PLRA, and … inmates are not required to specially plead or
    demonstrate exhaustion in their 
    complaints.” 549 U.S. at 216
    .
    However, Bock addressed only the PLRA’s screening
    requirements, and not the three strikes rule, and, as discussed
    below, left open the possibility that failure to exhaust could
    be a basis for dismissal for failure to state a claim.
    16
    minority approach. In Thompson v. Drug Enforcement
    Administration, it suggested instead that, “[b]ecause there is
    no categorical answer to the question whether failure to
    exhaust administrative remedies counts as failure to state a
    claim for Rule 12(b)(6) purposes, the question likewise has
    no categorical answer under section 1915(g), the language of
    which Congress clearly modeled on Rule 12(b)(6).” 
    492 F.3d 428
    , 438 (D.C. Cir. 2007). The Thompson Court reasoned
    that, “if a particular statute requires the plaintiff to plead
    exhaustion and the plaintiff fails to do so, the court may
    dismiss the complaint on a Rule 12(b)(6) motion,” but that,
    “even when failure to exhaust is treated as an affirmative
    defense, it may be invoked in a Rule 12(b)(6) motion if the
    complaint somehow reveals the exhaustion defense on its
    face.” 
    Id. The D.C. Circuit
    has thus chosen to establish a
    “bright-line rule that avoids the need to relitigate past cases”:
    “if the court dismisses an unexhausted complaint on a Rule
    12(b)(6) motion or if it dismisses the complaint sua sponte
    and expressly declares that the complaint fails to state a
    claim, the dismissal counts as a strike.” 
    Id. We have not
    previously addressed the issue of how
    exhaustion may relate to the three strikes rule, but we did
    consider two related issues in Ray v. Kertes, 
    285 F.3d 287
    (3d
    Cir. 2002). In that case, the district court dismissed a
    prisoner’s complaint before the defendants were served
    because the prisoner had not set forth any steps he had taken
    to exhaust administrative remedies. He argued on appeal that
    failure to exhaust is an affirmative defense that must be
    pleaded and proven by the defendants in a PLRA action, and
    he relied in part on Williams v. Runyon, 
    130 F.3d 568
    (3d Cir.
    1997), a Title VII case in which we stated that “failure to
    exhaust administrative remedies is an affirmative defense in
    17
    the nature of statute[s] of limitations.” 
    Ray, 285 F.3d at 292
    (quoting 
    Williams, 130 F.3d at 573
    ) (internal quotation marks
    omitted). We noted in Ray that the majority of appellate
    courts that had considered the issue had held that the PLRA’s
    exhaustion requirement is an affirmative defense. See 
    id. at 293 (collecting
    cases). We also observed that “considerations
    of policy [and] fairness” come into play when categorizing a
    pleading requirement as an affirmative defense, 
    id. at 295 (alteration
    in original) (internal quotation marks omitted), and
    that “it appears that it is considerably easier for a prison
    administrator to show a failure to exhaust than it is for a
    prisoner to demonstrate exhaustion.” Id.13 We thus “join[ed]
    the many other circuits that have held that failure to exhaust is
    an affirmative defense to be pleaded by the defendant.” 
    Id. We also considered
    in Ray whether failure to exhaust
    constituted grounds for a court’s sua sponte dismissal
    pursuant to the PLRA’s prescreening provision, 42 U.S.C.
    § 1997e(c). As noted 
    earlier, supra
    Part II.A, that provision
    permits dismissal of an action or claim that is “frivolous,
    malicious, fails to state a claim upon which relief can be
    13
    The Tenth Circuit in Steele explicitly rejected that
    part of our reasoning in Ray. It observed that “[a] showing of
    exhaustion does not rely solely on the maintenance of an
    efficient filing and retrieval system” and that “[t]he prisoner
    outlines his own grievance in the prison administrative
    system and frames his allegations in federal court.” 
    Steele, 355 F.3d at 1210
    . As a result, the Court concluded that “it is
    the prisoner who can best assert the relationship between his
    administrative grievance and court filing,” 
    id., so that there
    is
    “no inequity in placing the burden of pleading exhaustion on
    the prisoner,” 
    id. at 1209. 18
    granted, or seeks monetary relief from a defendant who is
    immune from such relief.” 42 U.S.C. § 1997e(c). Applying
    the principle of “expressio unius est exclusio alterius – when
    a statute specifically enumerates some categories, it impliedly
    excludes others,” 
    Ray, 285 F.3d at 296
    , we said that
    “[n]otably absent from the list is any reference to failure to
    exhaust.” 
    Id. We also observed
    that the final sentence of
    § 1997e(c)(2) states that “‘the court may dismiss the
    underlying claim ... without first requiring the exhaustion of
    administrative remedies,’ [which] shows that Congress had
    not forgotten about the need for exhaustion, but chose not to
    include failure to exhaust among the grounds for which the
    court could dismiss sua sponte.” 
    Id. (quoting 42 U.S.C.
    § 1997e(c)(2)). And we reasoned that “[t]he statutory
    structure also belies any possibility that a failure to exhaust is
    included in [§ 1997e](c)(1)’s broad rubric of ‘failure to state a
    claim upon which relief can be granted.’” 
    Id. at 296 n.9;
    accord 
    Snider, 199 F.3d at 112
    (concluding that “fail[ure] to
    state a claim as used in Section[] 1997e(c) ... of the PLRA
    does not include failure to exhaust administrative remedies”
    (first alteration in original) (internal quotation marks
    omitted)). Based on the foregoing, we concluded that
    “Congress did not intend to include failure to exhaust among
    the categories justifying sua sponte dismissal,” 
    Ray, 285 F.3d at 296
    , either as an independent ground or under the guise of
    failure to state a claim.
    Our holdings in Ray, and the reasoning on which they
    were based, would seem to compel us to follow the majority
    rule and conclude that dismissal for failure to exhaust does
    not constitute a strike under the PLRA. Like the prescreening
    provisions, the language of § 1915(g) does not include failure
    to exhaust in the list of enumerated strike grounds, indicating
    19
    that Congress did not intend for a dismissal based on
    exhaustion to count as a strike. The majority view is also
    consistent with our conclusion in Ray that failure to exhaust is
    an affirmative defense, rather than an element of a prisoner’s
    claim, and that it does not constitute a basis for sua sponte
    dismissal for failure to state a claim.
    Despite that, however, dictum in Jones v. Bock
    suggests that we should follow the D.C. Circuit’s approach
    and adopt a clear but flexible rule.14 In Bock, even as it held
    that exhaustion is an affirmative defense, see supra note 12,
    the Supreme Court added that “that is not to say that failure to
    exhaust cannot be a basis for dismissal for failure to state a
    claim.” 
    Bock, 549 U.S. at 216
    . The Court observed that “[a]
    complaint is subject to dismissal for failure to state a claim if
    the allegations, taken as true, show the plaintiff is not entitled
    to relief,” and that “[w]hether a particular ground for
    opposing a claim may be the basis for dismissal for failure to
    state a claim depends on whether the allegations in the
    complaint suffice to establish that ground, not on the nature of
    the ground in the abstract.” 
    Id. at 215. For
    example, if the
    allegations in a complaint “show that relief is barred by the
    applicable statute of limitations, the complaint is subject to
    dismissal for failure to state a claim[,] [but] that does not
    make the statute of limitations any less an affirmative
    14
    We have previously explained that “we should not
    idly ignore considered statements the Supreme Court makes
    in dicta” because the Court “uses dicta to help control and
    influence the many issues it cannot decide because of its
    limited docket,” and because ignoring it “increase[s] the
    disparity” among the Courts of Appeals. In re McDonald,
    
    205 F.3d 606
    , 612 (3d Cir. 2000).
    20
    defense.” 
    Id. The D.C. Circuit
    ’s rule, which was based on
    that reasoning in Bock, admits the possibility that “even when
    failure to exhaust is treated as an affirmative defense, it may
    be invoked in a Rule 12(b)(6) motion if the complaint
    somehow reveals the exhaustion defense on its face.”
    
    Thompson, 492 F.3d at 438
    . That approach is also consistent
    with the law of this Circuit concerning affirmative defenses
    and motions to dismiss. See Leveto v. Lapina, 
    258 F.3d 156
    ,
    161 (3d Cir. 2001) (“[A] complaint may be subject to
    dismissal under Rule 12(b)(6) when an affirmative defense ...
    appears on its face.”).15 Cf. Robinson v. Johnson, 
    313 F.3d 128
    , 135 (3d Cir. 2002) (noting that “the law of this Circuit
    (the so-called ‘Third Circuit Rule’) permits a limitations
    defense to be raised by a motion under Rule 12(b)(6), but
    only if the time alleged in the statement of a claim shows that
    the cause of action has not been brought within the statute of
    limitations.” (internal quotation marks omitted)).16
    15
    The Bock Court cited Leveto v. Lapina, 
    258 F.3d 156
    (3d Cir. 2001), in support of its statement that an
    affirmative defense, such as failure to exhaust, may be the
    basis of a dismissal for failure to state a claim. See 
    Bock, 549 U.S. at 215
    .
    16
    As we noted in Robinson, “[t]he ‘Third Circuit Rule’
    dates back at least to 1948 when we recognized ... that
    affirmative defenses are ordinarily pleaded pursuant to Fed.
    R. Civ. P. 8(c), but that [a] defense could be raised in other
    ways.” Robinson v. Johnson, 
    313 F.3d 128
    , 135 n.3 (3d Cir.
    2002) (citing Hartmann v. Time, Inc., 
    166 F.2d 127
    , 139 (3d
    Cir. 1947)). Since that time, we have acknowledged that a
    number of affirmative defenses that are not listed in Rule
    12(b) could still be made by motion, provided that the basis
    of the defense was apparent on the face of the complaint.
    21
    We thus adopt the following rule as it relates to
    exhaustion and PLRA strikes: 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. The first part of the rule
    – pertaining to cases in which the exhaustion defense is not
    apparent in the complaint – is likely to cover “the majority of
    cases ... [so that] the defense will not be raised on a Rule
    12(b)(6) motion and the dismissal will not count as a strike.”
    
    Thompson, 492 F.3d at 438
    . The second part – which applies
    when a court has correctly determined that the exhaustion
    defense is apparent on the face of the complaint – follows
    from the statutory text of § 1915(g) and our own “Third
    Circuit Rule.” “When a court dismisses an unexhausted
    complaint under Rule 12(b)(6), thus concluding that the
    See, e.g., Rycoline Prods., Inc. v. C & W Unltd., 
    109 F.3d 883
    , 886 (3d Cir. 1997) (affirmative defense must be apparent
    on the face of the complaint to be subject to a Rule 12(b)(6)
    motion to dismiss); Oshiver v. Levin, Fishbein, Sedran &
    Berman, 
    38 F.3d 1380
    , 1384 n.1 (3d Cir.1994) (“While the
    language of Fed. R. Civ. P. 8(c) indicates that a statute of
    limitations defense cannot be used in the context of a Rule
    12(b)(6) motion to dismiss, an exception is made where the
    complaint facially shows noncompliance with the limitations
    period and the affirmative defense clearly appears on the face
    of the pleading.”); Williams v. Murdoch, 
    330 F.2d 745
    , 749
    (3d Cir. 1964) (affirmative defense of res judicata may be
    raised by a motion to dismiss or by an answer).
    22
    complaint fails to state a claim, section 1915(g)’s plain text
    compels us to count that case as a strike.” Id.17
    17
    The second part of the rule requires that the
    dismissal based on failure to exhaust, pursuant to Rule
    12(b)(6), be with prejudice. “We assume that Congress is
    aware of existing law when it passes legislation,” Miles v.
    Apex Marine Corp., 
    498 U.S. 19
    , 32 (1990), and Congress
    used the language of Rule 12(b)(6) in the PLRA’s three
    strikes provision. See 28 U.S.C. § 1915(g) (strike accrues on
    dismissal of an action that “fails to state a claim upon which
    relief may be granted”). A dismissal for failure to state a
    claim under Rule 12(b)(6) is presumed to be a judgment on
    the merits unless otherwise specified. See Federated Dep’t
    Stores, Inc. v. Moitie, 
    452 U.S. 394
    , 399 n.3 (1981) (“The
    dismissal for failure to state a claim under Federal Rule of
    Civil Procedure 12(b)(6) is a judgment on the merits.”
    (citation and internal quotation marks omitted)). “It follows
    that the type of prior dismissal for failure to state a claim
    contemplated by § 1915(g) is one that constituted an
    adjudication on the merits and prejudiced the filing of a
    subsequent complaint with the same allegations.” McLean v.
    United States, 
    566 F.3d 391
    , 396 (4th Cir. 2009). By
    contrast, a dismissal for failure to exhaust without prejudice is
    not an adjudication on the merits. See Cooter & Gell v.
    Hartmarx Corp., 
    496 U.S. 384
    , 396 (1990) (“[D]ismissal ...
    without prejudice is a dismissal that does not operat[e] as an
    adjudication upon the merits ... .” (alterations in original)
    (citing and quoting Fed. R. Civ. P. 41(a)(1)) (internal
    quotation marks omitted)). Consequently, a dismissal for
    failure to state a claim on exhaustion grounds without
    prejudice “does not fall within the plain and unambiguous
    meaning of § 1915(g)’s unqualified phrase ‘dismissed ... [for]
    23
    2.     Dismissals Due to Absolute Immunity
    The PLRA’s prescreening provisions require a court to
    dismiss an action or an appeal at any time the court
    determines that the plaintiff “seeks monetary relief” from “a
    defendant who is immune from such relief.” 28 U.S.C.
    §§ 1915(e)(2)(B)(iii), 1915A(b)(2); 42 U.S.C. § 1997e(c)(1).
    But, like failure to exhaust, immunity is not one of the
    enumerated grounds for a strike under § 1915(g), which
    indicates that Congress did not intend for dismissal on
    immunity grounds to count as a strike. See Russello v. United
    States, 
    464 U.S. 16
    , 23 (1983) (“[W]here Congress includes
    particular language in one section of a statute but omits it in
    another section of the same Act, it is generally presumed that
    Congress acts intentionally and purposefully in the disparate
    inclusion or exclusion.” (alteration in original) (citation and
    internal quotation marks omitted)). Also, immunity is an
    affirmative defense, so that a prisoner’s failure to plead that
    the defendant was not immune would not normally provide a
    basis for dismissal for failure to state a claim. See 
    Ray, 285 F.3d at 297
    (noting that the Supreme Court has criticized the
    creation of heightened pleading standards in the PLRA
    context). Thus, it would seem clear that a dismissal due to
    the immunity of the defendant does not, on its own, count as a
    PLRA strike. See 
    Thompson, 492 F.3d at 439
    (declining to
    treat all dismissals under 28 U.S.C. § 1915A as strikes, in part
    fail[ure] to state a claim’” and “does not count as a strike.”
    
    McLean, 566 F.3d at 397
    (alterations in original). The
    District Court did not state that any of the dismissals at issue
    in these appeals were without prejudice, and so they are
    presumed to be with prejudice, and they “operate[] as an
    adjudication on the merits.” Fed. R. Civ. P. 41(b).
    24
    because that provision “requires dismissal of complaints that
    ‘seek[ ] monetary relief from a defendant who is immune
    from such relief’ – a reason not covered by section 1915(g)”
    (quoting 28 U.S.C. § 1915A(b)(2))).
    Again, however, affirmative defenses may be apparent
    on the face of a prisoner’s complaint, and immunity could,
    like failure to exhaust, provide the basis of a dismissal
    pursuant to Rule 12(b)(6). See Pani v. Empire Blue Cross
    Blue Shield, 
    152 F.3d 67
    , 74-75 (2d Cir. 1998) (dismissing a
    complaint under Rule 12(b)(6) because “the complaint itself
    establishes the facts necessary to sustain defendant’s
    immunity defense”). Under our Court’s practice, then,
    immunity could in certain cases justify a dismissal that would
    count as a PLRA strike. In addition, “[o]ne of the purposes of
    immunity, absolute or qualified, is to spare a defendant not
    only unwarranted liability, but unwarranted demands
    customarily imposed on those defending a long drawn out
    lawsuit.” Siegert v. Gilley, 
    500 U.S. 226
    , 232 (1991). For
    that reason, “[i]t is also well established that an affirmative
    defense of official immunity should be resolved as early as
    possible by the court ... .” 
    Pani, 152 F.3d at 75
    ; see also
    Vaughn v. U.S. Small Bus. Admin., 
    65 F.3d 1322
    , 1326 (6th
    Cir. 1995) (“To avoid imposing needless discovery costs
    upon government officials, the determination of qualified
    immunity must be made at an early stage in the litigation.”).
    That suggests that, when a prisoner sues a defendant who is
    immune, the court should grant a pre-answer motion to
    dismiss based on the affirmative defense of immunity
    “without resort to summary judgment procedure, if the
    defense appears on the face of the complaint.” 
    Pani, 152 F.3d at 74
    .
    25
    Some courts have gone further, suggesting that a
    dismissal based on immunity may be tantamount to a
    dismissal for frivolousness, which, like failure to state a
    claim, is an enumerated basis for a PLRA strike. See, e.g.,
    Hafed v. Fed. Bureau of Prisons, 
    635 F.3d 1172
    , 1178 (10th
    Cir. 2011) (construing a district court’s dismissal to “mean
    that the immunity ground for dismissal was subsumed in
    frivolousness or appellant’s failure to state a claim, because
    appellant affirmatively asserted facts showing that he could
    not meet the expropriation exception to [defendant’s]
    immunity” (emphasis in original)). The Second Circuit has,
    in fact, decided that prisoner actions against defendants who
    enjoy absolute immunity are per se frivolous. See Mills v.
    Fischer, 
    645 F.3d 176
    , 177 (2d Cir. 2011) (“The IFP statute
    does not explicitly categorize as frivolous a claim dismissed
    by reason of judicial immunity, but we will: [a]ny claim
    dismissed on the ground of absolute judicial immunity is
    ‘frivolous’ for purposes of 28 U.S.C. § 1915(g).”).
    The text of the PLRA, however, treats dismissal for
    frivolousness as separate and distinct from dismissal on
    grounds of immunity. Like failure to state a claim,
    frivolousness is listed as a ground for prescreening dismissal,
    and it is listed separately and distinctly from dismissal due to
    immunity. Compare 28 U.S.C. § 1915(e)(2)(B)(i), and 
    id. § 915A(b)(1) (requiring
    dismissal of an action that is
    frivolous), with 
    id. § 1915(e)(2)(B)(iii), and
    id. § 1915A(b)(2)
    (dismissal 
    on grounds that the defendant is immune from suit
    for monetary relief). And again like failure to state a claim,
    dismissal for frivolousness is an enumerated strike ground,
    see 
    id. § 1915(g), while
    dismissal based on immunity is not.
    Moreover, to automatically treat a district court’s dismissal on
    immunity grounds as one for frivolousness gives inadequate
    26
    deference to the district court. “[T]he district courts[] … are
    all too familiar with factually frivolous claims, [and] are in
    the best position to determine which cases fall into this
    category. Indeed, the [IFP] statute’s instruction that an action
    may be dismissed if the court is satisfied that it is frivolous
    indicates that frivolousness is a decision entrusted to the
    discretion of the court entertaining the in forma pauperis
    petition.” 
    Denton, 504 U.S. at 33
    (citation and internal
    quotation marks omitted).18 We therefore decline to treat a
    18
    We note, however, that Denton preceded the
    enactment of the PLRA, and that, although it is up to the
    district court to make the frivolousness determination, the
    dismissal of a frivolous action is now mandatory. See 28
    U.S.C. §§ 1915(e)(2)(B)(i), 1915A(b)(1); 42 U.S.C.
    § 1997e(c). We also note that a district court may base its
    frivolousness determination either on its conclusion that “a
    claim [is] based on an indisputably meritless legal theory” or
    on a finding that “the complaint’s factual allegations ... are
    clearly baseless,” Neitzke v. Williams, 490 U.S 319, 327
    (1989), and that we suggest deference only to the latter. Cf.
    
    Denton, 504 U.S. at 33
    (concluding that “a finding of factual
    frivolousness is appropriate when the facts alleged rise to the
    level of the irrational or the wholly incredible” and that “the
    district courts[] ... are in the best position to determine which
    cases fall into this category”); Roman v. Jeffes, 
    904 F.2d 192
    ,
    194 (3d Cir. 1990) (stating that “[o]ur review of a district
    court decision dismissing a complaint as frivolous is plenary”
    but acknowledging that a district court may base its
    frivolousness determination either on its conclusion that a
    claim is “based on an indisputably meritless legal theory” or
    on a finding that the complaint’s “factual contentions are
    clearly baseless”).
    27
    district court’s dismissal due to the defendant’s immunity as a
    per se dismissal for frivolousness for purposes of the PLRA’s
    three strikes rule.19
    19
    Although we do not think that a dismissal on the
    ground of immunity is per se a dismissal for frivolousness,
    we reiterate that the district courts are free to conclude that an
    action is frivolous because the defendant is immune – and to
    clearly state frivolousness as the reason for the dismissal. As
    the Second Circuit recognized in announcing its per se rule,
    when a defendant enjoys absolute judicial immunity, the
    action is quite likely frivolous. See Stump v. Sparkman, 
    435 U.S. 349
    , 356 (1978) (“A judge will not be deprived of
    immunity because the action he took was in error, was done
    maliciously, or was in excess of his authority ... .”). But even
    judicial immunity has its limits. See 
    id. at 356-57 (noting
    that
    a judge “will be subject to liability ... when he has acted in the
    clear absence of all jurisdiction” (internal quotation marks
    omitted)). And, more generally, a prisoner could have made a
    nonfrivolous claim by pleading facts that demonstrated that
    an exception to absolute immunity applied, or that the
    requirements of qualified immunity were not satisfied, even
    though the district court ultimately determined that the
    immunity defense remained intact and dismissed the
    complaint on that basis. Cf. Hafed v. Fed. Bureau of Prisons,
    
    635 F.3d 1172
    , 1178 (10th Cir. 2011) (observing that a claim
    against an immune defendant “could properly be dismissed
    by a district court sua sponte as frivolous” but only “if it [is]
    clear from the face of the complaint that the defendant was
    absolutely immune from suit and no further factual
    development was required”).
    28
    Instead, we hold that dismissal based on the immunity
    of the defendant, whether absolute or qualified, does not
    constitute a PLRA strike, including a strike based on
    frivolousness, unless a court explicitly and correctly
    We also emphasize that we may dismiss as frivolous
    an appeal of an action dismissed on immunity grounds. The
    PLRA counts each “occasion[]” on which “an action or
    appeal” is dismissed on one of the enumerated grounds as a
    separate strike, 28 U.S.C. § 1915(g), so that we may dismiss
    an appeal as frivolous, causing the prisoner to accrue a strike,
    see 
    Hafed, 635 F.3d at 1179
    , even if the district court
    dismissed the action solely on grounds of immunity. And, in
    fact, a district court may certify that an appeal would not be
    taken in good faith, even if it dismissed the action on grounds
    other than frivolousness. See 28 U.S.C. § 1915(a)(3).
    Certainly, if the District Court certifies that an appeal would
    not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3),
    and we dismiss the appeal under § 1915(e)(2)(B)(i) on the
    same grounds as those on which the District Court based its
    dismissal, then dismissal of the appeal should count as a
    strike. But even if the District Court did not certify that an
    appeal would be lacking a good faith basis, we may “consider
    the nature of the dismissal,” 
    Hafed, 635 F.3d at 1178
    , such
    that the appeal may itself be dismissed as frivolous. In the
    case of a district court’s dismissal based on immunity, our
    determination that the appeal may be dismissed as frivolous
    would be proper when the prisoner “affirmatively asserted
    facts showing” that the defendant was immune from suit for a
    monetary remedy and that none of the exceptions to such
    immunity applied, so that he had no “legally valid claim.” 
    Id. (emphasis in original)
    (internal quotation marks omitted).
    29
    concludes that the complaint reveals the immunity defense on
    its face and dismisses the unexhausted complaint under Rule
    12(b)(6) or expressly states that the ground for the dismissal
    is frivolousness.20
    3.     Other Questions of Strike Computation
    Before applying the rules adopted in the previous
    sections to the dismissals of Ball’s various actions, we
    address four more questions, first reviewing our recent
    answers to two questions of PLRA strike calculation and
    then resolving two additional questions. The first question is
    whether “unclear” dismissals can be counted as strikes for
    purposes of § 1915(g). We answered “no” to that inquiry
    earlier this year in Byrd v. Shannon, 
    715 F.3d 117
    (3d Cir.
    2013). Byrd concerned the dismissal of a prisoner’s appeal
    pursuant to § 1915(e)(2)(B) because it was “without merit.”
    
    Id. at 121 (internal
    quotation marks omitted). Confronted
    with that unclear dismissal, we said that
    a strike under § 1915(g) will accrue only if the
    entire action or appeal is (1) dismissed
    explicitly because it is “frivolous,” “malicious,”
    or “fails to state a claim” or (2) dismissed
    pursuant to a statutory provision or rule that is
    limited solely to dismissals for such reasons,
    including (but not necessarily limited to) 28
    U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i),
    20
    As with a Rule 12(b)(6) dismissal based on failure to
    exhaust, a dismissal based on immunity must be with
    prejudice, if it is to count as a strike. 
    See supra
    note 17.
    30
    1915(e)(2)(B)(ii), or Rule 12(b)(6) of the
    Federal Rules of Civil Procedure.
    
    Id. at 126. In
    announcing that rule, we rejected an alternative
    approach under which “courts are permitted to consider the
    nature of the dismissal and determine whether the dismissal
    fits within the language of § 1915(g),” because we felt that
    such an approach would “open the door to more litigation ...
    .” 
    Id. Applying the rule,
    we concluded that our dismissal of
    the appeal in question did not constitute a strike, because
    “[t]he terms ‘frivolous,’ ‘malicious,’ or ‘fails to state a claim’
    were not used to dismiss the appeal” and because “[s]ection
    1915(e)(2)(B) is not limited to dismissals that are ‘frivolous,’
    ‘malicious,’ or ‘fail[] to state a claim.’” 
    Id. (second alteration in
    original).
    The second question is whether dismissal of some
    claims within an action on grounds that would constitute a
    strike, without dismissal of the entire action, causes the
    prisoner to accrue a strike. Byrd also settled that question,
    holding that “a strike under § 1915(g) will accrue only if the
    entire action or appeal” is dismissed on one of the enumerated
    grounds, or based on a statutory provision that limits
    dismissal to one or more of those grounds. Id.; see also 
    id. at 125 (“We
    agree with the majority of our sister courts of
    appeals that § 1915(g) requires that a prisoner’s entire action
    or appeal be dismissed on enumerated grounds in order for
    the dismissal to count as a strike.”). That rule is consistent
    with the plain language of the PLRA’s three strikes provision,
    which refers to dismissals of an “action or appeal,” 28 U.S.C.
    § 1915(g), rather than the dismissal of individual claims.21 It
    21
    Other circuits have come to the same conclusion.
    31
    is also consistent with the Supreme Court’s interpretation of
    the PLRA’s exhaustion provision, 42 U.S.C. § 1997e(a). See
    
    Bock, 549 U.S. at 221
    (“As a general matter, if a complaint
    contains both good and bad claims, the court proceeds with
    the good and leaves the bad. [O]nly the bad claims are
    dismissed; the complaint as a whole is not. If Congress meant
    to depart from this norm, we would expect some indication of
    that, and we find none.” (citation and internal quotation marks
    omitted)).
    The third question is whether, on appeal, an affirmance
    of a dismissal (whether or not it was on grounds that would
    cause the prisoner to accrue a strike) counts as a separate
    strike. Byrd does not directly address that issue, and we have
    not previously resolved it, but we think the answer is clear.
    The PLRA three strikes provision speaks of possible strikes
    only in terms of “an action or appeal ... that was dismissed”
    See, e.g., Tolbert v. Stevenson, 
    635 F.3d 646
    , 651 (4th Cir.
    2011) (holding that “§ 1915(g) requires that a prisoner’s
    entire ‘action or appeal’ be dismissed on enumerated grounds
    in order to count as a strike”); Turley v. Gaetz, 
    625 F.3d 1005
    ,
    1009 (7th Cir. 2010) (holding that “a strike is incurred for an
    action dismissed in its entirety on one or more of the three
    enumerated grounds”); Pointer v. Wilkinson, 
    502 F.3d 369
    ,
    372-73 (6th Cir. 2007) (holding that “if some claims … were
    found to have merit, then the dismissal of other frivolous
    claims would not render the dismissal a strike” (internal
    quotation marks omitted)); Thompson v. Drug Enforcement
    Admin., 
    492 F.3d 428
    , 432 (D.C. Cir. 2007) (holding that the
    plain language of § 1915(g) provides that a plaintiff incurs a
    strike only when the entire action is dismissed on one of the
    listed grounds).
    32
    on one of the enumerated grounds, 28 U.S.C. § 1915(g).
    Thus,“[u]nder the plain language of the statute, only a
    dismissal may count as a strike, not the affirmance of an
    earlier decision to dismiss.” Jennings v. Natrona Cnty. Det.
    Med. Facility, 
    175 F.3d 775
    , 780 (10th Cir. 1999). Also, as
    noted in Thompson, “[t]he choice of the word ‘dismiss’ rather
    than ‘affirm’ in relation to appeals was unlikely an act of
    careless draftsmanship,” but rather may be “most plausibly
    understood as a reference to section 1915(e)(2), which
    requires the court to ‘dismiss the case at any time if the court
    determines that ... the action or appeal ... is frivolous or
    malicious; [or] fails to state a claim on which relief may be
    granted.’” 
    Thompson, 492 F.3d at 436
    (emphasis and
    alterations in original) (quoting 28 U.S.C. § 1915(e)(2)(B)(i),
    (e)(2)(B)(iii)). Therefore, a dismissal of an appeal on one of
    the enumerated grounds counts as a PLRA strike, while an
    affirmance of a district court’s dismissal does not, even if the
    underlying dismissal itself counts as a strike.
    The final question is whether a strike accrues as soon
    as an action is dismissed, or only when that dismissal has
    been affirmed on appeal or the opportunity to appeal has
    otherwise come to a close. The statute is silent on whether a
    prior dismissal must be final to count as a strike and simply
    says that, to bar IFP status, the dismissals need to have
    occurred “on 3 or more prior occasions.” 28 U.S.C.
    § 1915(g). But other circuits that have considered the issue
    have concluded that a dismissal must be final before it counts
    as a strike. See 
    Thompson, 492 F.3d at 439
    (noting that “a
    dismissal does not become a strike until an appeal thereof has
    been resolved or waived”); 
    Jennings, 175 F.3d at 780
    (“[A]
    § 1915(e)(2)(B) dismissal should not count against a litigant
    until he has exhausted or waived his appeals.”); Adepegba v.
    33
    Hammons, 
    103 F.3d 383
    , 388 (5th Cir. 1996) (“It is
    uncontroversial from the plain language of the statute that
    Congress intended section 1915(g) only to penalize litigation
    that is truly frivolous, not to freeze out meritorious claims or
    ossify district court errors. We accordingly read dismissals
    under the statute to include only those for which appeal has
    been exhausted or waived.”). Cf. 
    Snider, 199 F.3d at 115
    (“We also doubt whether the entry of a strike is properly
    considered at the time an action is dismissed.”). That rule
    makes sense. As the Tenth Circuit recognized, “to count
    strikes before the litigant has an opportunity to appeal the
    district court’s dismissal is to risk inadvertently punishing
    nonculpable conduct.” 
    Jennings, 175 F.3d at 780
    (internal
    quotation marks omitted). “For example, a ‘hyper-literal’
    reading of § 1915(g) to count all district court dismissals as
    ‘prior occasions’ whether or not the litigant has appealed
    those decisions could bar a prisoner’s appeal of an erroneous
    third strike, since the appeal would follow three prior
    dismissals. Or, an indigent prisoner’s fourth claim could
    expire while one or more of his first three dismissals was
    being reversed on appeal.” 
    Id. We will therefore
    follow the
    rule of those circuits that hold that a dismissal does not count
    as a strike until it has been affirmed on appeal, or the
    opportunity to appeal has otherwise concluded.22
    22
    That rule would, of course, mean that dismissal of an
    action that gave rise to an appeal would not count as a strike
    for purposes of that appeal, even if it had been on one of the
    grounds enumerated in § 1915(g). See Pigg v. FBI, 
    106 F.3d 1497
    , 1498 (10th Cir. 1997) (concluding that, because
    “‘[p]rior’ is defined in Webster's Ninth New Collegiate
    Dictionary as ‘earlier in time,’” the district court erred in
    34
    4.     Tallying Ball’s Strikes for Purposes of
    the Present Appeals
    Defendants argue that Ball had accrued at least ten
    strikes for purposes of these appeals.23 Three of those
    counting the plaintiff’s instant action as one of the three prior
    actions).
    That rule leaves open the question of whether a
    prisoner accrues a strike as soon as a dismissal by the district
    court is affirmed by a court of appeals, or only when the
    Supreme Court has denied or dismissed a petition for writ of
    certiorari or the time for filing one has passed. Because there
    is no evidence that Ball has filed such petitions, and the time
    for filing with respect to the dismissals at issue in these
    appeals has passed, we need not resolve that question, though
    the logic of our present decision would indicate waiting for
    the certiorari period to close is appropriate. See 
    Hafed, 635 F.3d at 1176
    (“We now clarify that a strike counts against a
    prisoner 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.”).
    23
    Those ten purported strikes are Ball v. SCI Muncy,
    No. 08-cv-0391 (M.D. Pa. Dec. 10, 2008); Ball v. Hartman,
    No. 09-cv-0844, 
    2010 WL 597401
    (M.D. Pa. Feb. 16, 2010);
    Ball v. Butts, No. 11-cv-1068 (M.D. Pa. June 15, 2011),
    appeal dismissed as frivolous, 445 F. App’x 457 (3d Cir.
    2011) (counting as two strikes); Ball v. Beard, No. 09-cv-
    0845 (M.D. Pa. Feb. 3, 2012); Ball v. Campbell, No. 11-cv-
    2239, 
    2012 WL 1979462
    (M.D. Pa. June 1, 2012); Ball v.
    Giroux, 12-cv-0011, 
    2012 WL 728069
    (M.D. Pa. Mar. 6,
    2012); Ball v. Giroux, No. 12-cv-0812, 
    2012 WL 3597214
    35
    dismissals24 do not count as strikes because they were not
    final when Ball filed the appeals before us now. Three
    others25 do not count as strikes for present purposes because
    the actions were dismissed after these appeals were filed.
    That leaves the District Court’s dismissal of Ball’s complaints
    in SCI Muncy, Hartman, and Butts and our dismissal of her
    appeal in Butts.
    Given the rules set forth in the preceding sections, Ball
    has three strikes that bar her IFP status with respect to both of
    the appeals before us now.26 First, although the Court
    dismissed the complaint in SCI Muncy due to failure to
    exhaust, it found that that affirmative defense was plain on
    the face of the complaint, because Ball “states that she did not
    complete the grievance process.” SCI Muncy, No. 08-cv-
    0391 (M.D. Pa.) (Doc. 36, pp. 2-3). Based on that explicit
    finding, and because the Court dismissed the complaint on
    defendants’ Rule 12(b)(6) motion and we affirmed, that
    dismissal caused Ball to accrue a PLRA strike.
    In its dismissal of the Hartman action, the District
    Court discussed both whether Ball had sufficiently pled the
    elements of a § 1983 claim and whether she had alleged a
    (M.D. Pa. Aug. 16, 2012); Ball v. D’Addio, 12-cv-0815, 
    2012 WL 3597249
    (M.D. Pa. Aug. 16, 2012); and Ball v. Sisley,
    11-cv-0877, 
    2012 WL 5509899
    (M.D. Pa. Nov. 14, 2012).
    24
    Beard; Giroux, No 12-cv-0011; and Campbell.
    25
    Giroux, No. 12-cv-0812; D’Addio; and Sisley.
    26
    The analysis is the same for appeals 12-1067 and 12-
    2604, now before us, because the operative strikes all
    occurred prior to both of these appeals.
    36
    cognizable injury-in-fact sufficient for Article III standing.
    
    See supra
    note 5.27 However, the District Court found that
    Ball failed to plead one of the “essential elements” of a
    § 1983 claim because she had not alleged the personal
    involvement of the defendants and therefore had not pled
    “that the conduct complained of was committed by a person
    acting under color of state law.” Hartman, 
    2010 WL 597401
    ,
    at *2; see also 
    id. (“[E]ach named defendant
    must be shown,
    via the complaint’s allegations, to have been personally
    involved in the events or occurrences which underlie [the]
    claim.”); Hartman, 
    2010 WL 146319
    , at * 5 (observing that
    there were no factual allegations against one of the
    defendants).     The Court thus dismissed the case on
    defendants’ Rule 12(b)(6) motions for failure to state a claim,
    see Hartman, 
    2010 WL 597401
    , at *3; Hartman, 
    2010 WL 146319
    , at *6-*7, we affirmed, and that dismissal represents
    Ball’s second strike.
    The District Court’s dismissal of Butts does not count
    as a strike because it was based on immunity. See Butts, No.
    11-cv-1068 (M.D. Pa.) (Doc. 8) (dismissing the complaint
    pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii)). However, we
    dismissed the appeal in Butts as frivolous, saying that “[a]n
    appeal is frivolous if it lacks an arguable basis either in law or
    in fact,” and that Ball’s appeal lacked any such basis because
    she had “alleged nothing suggesting that Judge Butts acted in
    the clear absence of all jurisdiction.” Butts, 445 F. App’x at
    458 (internal quotation marks omitted).28                 Because
    27
    The Court also considered the doctrines of Eleventh
    Amendment and quasi-judicial immunity. 
    See supra
    note 4.
    28
    We also noted that, “[t]o the extent that Ball’s
    request for injunctive relief might not have been subject to
    37
    frivolousness is an enumerated strike ground, our dismissal of
    Ball’s Butts appeal caused her to accrue her third strike. Ball
    therefore had three strikes at the time she commenced these
    appeals, which would generally bar her from proceeding
    IFP.29
    B.     Imminent Danger of Serious Physical Injury
    Even though Ball has three strikes with respect to both
    of the present appeals, she may proceed IFP if, at the time she
    filed her appeal, she was “under imminent danger of serious
    physical injury.” 28 U.S.C. § 1915(g). Ball alleges danger of
    serious injury based on each of the types of mistreatment that
    she says she has suffered: burns and bruises sustained at the
    dismissal under § 1915(e)(2)(B)(iii) [for immunity], it was
    subject to dismissal under § 1915 (e)(2)(B)(ii) [for failure to
    state a claim] because such relief is not available against ‘a
    judicial officer for an act ... taken in such officer’s judicial
    capacity’ ... .” Butts, 445 F. App’x at 458 (first alteration in
    original) (quoting 42 U.S.C. § 1983).
    29
    In August 2012, the District Court revoked Ball’s
    IFP status on the ground that she had accrued three strikes,
    counting its own dismissals in Hartman and Butts and our
    dismissal of the Butts appeal. See Hummel, 
    2012 WL 3614045
    , at *1; supra note 9. For the reasons set forth in this
    opinion, the Court’s Butts dismissal does not count because it
    was based on the immunity of the defendant judge. However,
    the District Court could have revoked Ball’s IFP status at the
    time it dismissed the Hummel action in August 2012, by
    counting its dismissal of SCI Muncy as the third strike.
    38
    hands of prison personnel, denial of the use of a wheelchair or
    cane and of pain medication for her arthritis, lack of proper
    treatment for her vision, and exposure to mold and mace that
    has aggravated her asthma.
    “Before denying leave to proceed IFP, courts must
    review a frequent filer’s well-pled allegations to ensure that
    the prisoner is not in imminent danger” of serious physical
    injury. Ciarpaglini v. Saini, 
    352 F.3d 328
    , 330 (7th Cir.
    2003). “The imminent danger exception allows the district
    court [or an appellate court] to permit an otherwise barred
    prisoner to file a complaint I.F.P. if the prisoner could be
    subject to serious physical injury and does not then have the
    requisite filing fee.” Abdul-Akbar v. McKelvie, 
    239 F.3d 307
    ,
    315 (3d Cir. 2001) (en banc). Congress included the
    exception as a “safety valve for the ‘three strikes’ rule”
    because it “[r]ecogniz[ed] that it could take prisoners [with
    three strikes] a significant period of time to obtain the filing
    fee.” 
    Id. “‘Imminent’ dangers are
    those dangers which are
    about to occur at any moment or are impending.” 
    Id. “By using the
    term ‘imminent,’ Congress indicated that it wanted
    to ... prevent impending harms, not those harms that had
    already occurred.” Id.; see also Medberry v. Butler, 
    185 F.3d 1189
    , 1193 (11th Cir. 1999) (“Congress’ use of the present
    tense in § 1915(g) confirms that a prisoner’s allegation that he
    faced imminent danger sometime in the past is an insufficient
    basis to allow him to proceed in forma pauperis ... .”). The
    danger must also be imminent at the time the complaint or
    appeal is filed. See 
    Abdul-Akbar, 239 F.3d at 312
    (“[A]
    prisoner may invoke the ‘imminent danger’ exception only to
    seek relief from a danger which is ‘imminent’ at the time the
    39
    complaint is filed.”); Banos v. O’Guin, 
    144 F.3d 883
    , 885
    (5th Cir. 1998) (“[T]he language of § 1915(g), by using the
    present tense, clearly refers to the time when the action or
    appeal is filed ... .”).
    Although § 1915(g)’s “imminent danger” exception
    might appear clear in theory, in practice it represents an
    “amorphous standard.” 
    Ciarpaglini, 352 F.3d at 331
    . Courts
    have found imminent danger when a prisoner was placed near
    enemies who had beaten him, Ashley v. Dilworth, 
    147 F.3d 715
    (8th Cir. 1998), when a prisoner suffered headaches and
    other symptoms as a result of exposure to dust and lint, Gibbs
    v. Cross, 
    160 F.3d 962
    (3d Cir. 1998), and when a prisoner
    needed dental care due to an oral infection, McAlphin v.
    Toney, 
    281 F.3d 709
    (8th Cir. 2002). The denial or
    withdrawal of needed medications can also constitute an
    imminent danger. See, e.g., Brown v. Johnson, 
    387 F.3d 1344
    , 1346 (11th Cir. 2004) (withdrawal of medications for
    HIV and hepatitis); 
    Ciarpaglini, 352 F.3d at 330
    (denial of
    medication for bipolar, attention deficit, and panic disorders).
    But “[c]ourts … deny leave to proceed IFP when a
    prisoner’s claims of imminent danger are conclusory or
    ridiculous.” 
    Ciarpaglini, 352 F.3d at 331
    . For example,
    complaining two years later of inadequate protection from
    reprisals by other prisoners can hardly be said to be an
    allegation of “imminent” danger, Heimermann v. Litscher,
    
    337 F.3d 781
    , 782 (7th Cir. 2003), just as working in
    inclement weather may not be “danger” at all, Martin v.
    Shelton, 
    319 F.3d 1048
    , 1050 (8th Cir. 2003). Courts also
    reject imminent danger claims when a prisoner alleges only a
    past injury that has not recurred. See, e.g., 
    Abdul-Akbar, 239 F.3d at 315
    (concluding that being sprayed with pepper spray
    40
    on one occasion is not imminent danger); Abdul-Wadood v.
    Nathan, 
    91 F.3d 1023
    (7th Cir. 1996) (concluding that being
    given Ibuprofen instead of a stronger pain medication for an
    injury that had already healed is not imminent danger). And
    “vague and utterly conclusory” assertions that medical
    treatment has been withheld, particularly when a prisoner has
    been seen repeatedly by a physician, do not amount to a
    showing of imminent danger. White v. Colorado, 
    157 F.3d 1226
    , 1231 (10th Cir. 1998).
    Most of Ball’s allegations plainly fail to demonstrate
    imminent danger of serious physical injury that would entitle
    her to the exception to the PLRA bar. Her imminent danger
    allegation based on burns and bruises that she says she
    sustained at the hands of prison personnel is based on a single
    past incident, and therefore does not suggest a threat of future
    harm. Cf. 
    Abdul-Akbar, 239 F.3d at 315
    n.1 (concluding that
    a single alleged past assault with pepper spray did not
    constitute imminent danger). Also, her allegation that her
    injuries from that incident went untreated is not supported by
    the record. Her allegations relating to her failing eyesight and
    osteoarthritis represent disagreements about the quality of the
    medical care that she is receiving which, even if true, are not
    sufficient to support an imminent danger claim. See Brown v.
    Beard, 
    492 F. Supp. 2d 474
    , 478 (E.D. Pa. 2007) (rejecting
    imminent danger claim when prisoner “does not dispute that
    he is receiving medical attention, but merely disputes the
    findings and quality of the treatment he is receiving”).
    Moreover, even if poor care for her past injuries, her eyesight,
    or her arthritis may prove detrimental to Ball’s health over
    time, they do not represent “imminent dangers” which are
    “about to occur at any moment or are impending.” Abdul-
    
    Akbar, 239 F.3d at 315
    .
    41
    Ball’s allegation of imminent danger based on having
    been sprayed with mace is contradicted by the record, see
    Ball v. Buckley, No. 11-cv-1829 (M.D. Pa.) (Doc. 81) (noting
    that Dr. Famiglio had cleared her for the use of mace, given
    her history of assaultive behavior, after balancing her mild
    asthma with safety and security needs),30 but her allegation of
    imminent danger due to mold in her cell is similar to one that
    we have found sufficient to invoke the exception. In 
    Gibbs, supra
    , a prisoner alleged that he was forced to breathe
    particles of lint and dust that were dispersed into his cell
    through the ventilation system. The prisoner claimed to have
    been suffering from “severe headaches, changes in voice,
    mucus that is full of dust and lint, and watery eyes,” and that,
    “depending on the nature of the particles that he is breathing,
    there is a significant possibility that he is under imminent
    danger of serious physical injury.” 
    Gibbs, 160 F.3d at 965
    (internal quotation marks omitted).          We rejected the
    30
    Ball’s mace-based allegation of imminent danger is
    also similar to one that we rejected in Abdul-Akbar v.
    McKelvie, 
    239 F.3d 307
    (3d Cir. 2001). Ball’s allegation
    appears to be based on a single incident in August 2011 that
    is the subject of another of Ball’s lawsuits, in which prison
    officials used mace to secure her after she refused to answer
    direct orders or to uncover the door to her cell when
    medications were offered. See Ball v. Buckley, No. 11-cv-
    1829 (M.D. Pa.) (Doc. 82). As such, it is insufficient to
    support a claim of imminent danger. See 
    Abdul-Akbar, 238 F.3d at 315
    n.1 (concluding that a single alleged incident in
    which the prisoner was sprayed with pepper spray does not
    “suffice to establish ... an ongoing danger” at the time an
    appeal was filed).
    42
    defendant’s argument that the prisoner’s allegations were
    merely speculative, and concluded that they were sufficient
    for him to claim the benefit of the exception to the PLRA’s
    three strikes rule. See 
    id. (“Inmates ought to
    be able to
    complain about unsafe, life-threatening condition[s] in their
    prison without waiting for something to happen to them.”
    (alteration in original) (internal quotation marks omitted)).
    Gibbs, however, is distinguishable. The defendant in
    that case did not contradict the prisoner’s allegations as to the
    air quality in his cell or the nature of his symptoms, but rather
    “attempt[ed] to minimize such allegations by emphasizing
    their speculative nature.” 
    Id. We held that,
    “under our liberal
    pleading rules,” a district court must “credit[] those
    allegations of ‘imminent danger’ that have gone
    unchallenged.”31 
    Id. at 966. In
    this case, Dr. Famiglio
    testified that Ball is not exposed to mold or other
    “environmental elements” and “has not had a reported or
    witnessed asthma attack since her incarceration several years
    ago.” (App. at 106.) The record also suggests that any
    breathing problems that Ball suffered at the time she filed this
    appeal may have been due to a fecal bacterial lung infection
    (for which she was treated) that was caused by her smearing
    herself with her own feces. Those facts tend to refute Ball’s
    mold-based imminent danger allegation. Cf. Polanco v.
    Hopkins, 
    510 F.3d 152
    , 155 (2d Cir. 2007) (concluding that
    prisoner’s allegations that he had been exposed to mold in a
    shower “cannot support a determination that he was in
    31
    How Gibbs may be affected by the stricter pleading
    standards instituted by the Supreme Court’s decision in Bell
    Atlantic Corp. v. Twombly, 
    550 U.S. 544
    (2006), is not a
    question we need to address today.
    43
    imminent danger of serious physical injury” (internal
    quotation marks omitted)).
    The conflicting statements regarding Ball’s mold-
    related imminent danger allegation raise the question of
    whether remand is warranted. As we noted in Gibbs,
    § 1915(g) “will often times necessitate further factfinding
    proceedings once the imminent danger allegation is
    challenged[,] a byproduct of the PLRA most likely not
    contemplated by Congress, but which must nonetheless be
    handled by the 
    courts.” 160 F.3d at 967
    n.8. The Supreme
    Court has cautioned that “the in forma pauperis statute ...
    accords judges not only the authority to dismiss a claim based
    on an indisputably meritless legal theory, but also the unusual
    power to pierce the veil of the complaint’s factual allegations
    and dismiss those claims whose factual contentions are
    clearly baseless,” such as “claims describing fantastic or
    delusional scenarios ... .” 
    Denton, 504 U.S. at 32
    (quoting
    
    Neitzke, 490 U.S. at 327-28
    ) (internal quotation marks
    omitted). Thus, neither Gibbs nor our other precedents
    require us to “accept as having an arguable basis in fact all
    allegations that cannot be rebutted by judicially noticeable
    facts,” 
    id. (citation and internal
    quotation marks omitted), or
    prevent us from “discrediting factual claims of imminent
    danger that are clearly baseless … .” 
    Gibbs, 160 F.3d at 967
    (internal quotation marks omitted).32
    32
    The Supreme Court’s holding that a court may
    dismiss a prisoner’s claim if the allegations are “fanciful,
    fantastic, [or] delusional,” 
    Denton, 504 U.S. at 32
    -33 (citation
    and internal quotation marks omitted) was limited to the
    dismissal of claims as frivolous. But we think that the
    underlying reasoning, based on the purpose of the PLRA to
    44
    Those principles allow us to consider the credibility of
    Ball’s mold-related allegations in the context of all of the
    facts of this case to determine whether a remand on the
    question of imminent danger is necessary. See Taylor v.
    Watkins, 
    623 F.3d 483
    , 485 (7th Cir. 2010) (“[W]hen a
    defendant contests a plaintiff’s claims of imminent danger, a
    court must act to resolve the conflict. A contrary conclusion
    would mean that a three-strikes plaintiff could proceed IFP
    whenever his allegations of imminent danger were facially
    plausible ... .”); 
    White, 157 F.3d at 1232
    (concluding that the
    defendant “has failed to raise a credible allegation that he is in
    imminent danger of serious physical harm, and, therefore, he
    does not come under the exception to § 1915(g)”). That
    approach is particularly appropriate in this case because it has
    proceeded through discovery and was disposed of on
    defendants’ motions for summary judgment. See 
    Denton, 504 U.S. at 33
    (noting that a prisoner’s “improbable allegations
    might be properly disposed of on summary judgment” and
    after “factual development”).
    Based on the record before us, we conclude that Ball’s
    mold-related allegations are not sufficiently credible to
    warrant remand. Her medical records and the testimony of
    Dr. Famiglio cast serious doubt on whether she had actually
    been exposed to mold at the time she filed this appeal and,
    even if she had been, whether it had the effect she alleges,
    given that she suffered from “no current [medical] conditions
    requiring regular monitoring let alone treatment.” (App. at
    reduce frivolous prisoner litigation, applies equally to factual
    allegations of imminent danger that would permit a prisoner
    to avoid the application of the PLRA’s three strikes provision.
    45
    89.) Moreover, by her own admission, Ball “see[s] and
    hear[s] things not there,” and “can’t think clearly.”
    (Magistrate’s Judge’s Report at 1 (quoting Ball v. Beard, No.
    09-cv-0845 (M.D. Pa.) (Doc. 42, pp. 6-7)) (internal quotation
    marks omitted).) Ball’s admitted “cognitive problems and
    disorders,” 
    id., make her claims
    of exposure to mold and
    resulting asthma attacks less believable than they might
    otherwise be.33 Lastly, Ball has provided no evidence to
    support her mold-related allegations – or any of her other
    physical injury allegations – in either of her motions
    regarding imminent danger. Because a prisoner claiming that
    she is in imminent danger of serious physical harm must
    “make specific [and] credible allegations to that effect,”
    Childs v. Miller, 
    713 F.3d 1262
    , 1267 (10th Cir. 2013)
    (alteration in original) (internal quotation marks omitted), and
    Ball has failed to do so, the imminent danger exception does
    not apply, and her three PLRA strikes bar her from IFP status
    for purposes of these appeals.
    33
    We are not implying that prisoners with delusions
    are to have their allegations disregarded for that reason alone.
    While an admittedly delusional plaintiff may face credibility
    challenges based on the existence of his or her delusions, the
    record ought otherwise provide some support for a negative
    determination on credibility before the court entirely
    discounts the claim of imminent danger. We also do not
    suggest that a credibility determination may be based on a
    prisoner’s prior litigation history alone. See 
    Gibbs, 160 F.3d at 966
    (“Congress [in enacting § 1915(g)] was clearly
    concerned with continuing to afford in forma pauperis filing
    status to inmates who had a history suggestive of abusing the
    judicial system.”).
    46
    III.   CONCLUSION
    For the foregoing reasons, we will deny Ball’s request
    to proceed IFP on these appeals. Unless she pays the
    docketing fee within 14 days of the judgment rendered
    herewith, these appeals will be dismissed pursuant to Third
    Circuit L.A.R. 107.1(a). Ball’s motion for appointment of
    counsel will be denied without prejudice.
    47
    

Document Info

Docket Number: 12-1067, 12-2604

Citation Numbers: 726 F.3d 448, 2013 WL 4038562, 2013 U.S. App. LEXIS 16529

Judges: Jordan, Vanaskie, Cowen

Filed Date: 8/9/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (45)

Hafed v. Federal Bureau of Prisons , 635 F.3d 1172 ( 2011 )

Turley v. Gaetz , 625 F.3d 1005 ( 2010 )

frank-r-owens-v-verlyn-isaac-jean-even-co-phillip-mike-bickford-william , 487 F.3d 561 ( 2007 )

Russello v. United States , 104 S. Ct. 296 ( 1983 )

Brown v. Beard , 492 F. Supp. 2d 474 ( 2007 )

daniel-j-leveto-margaret-a-leveto-v-robert-a-lapina-richard-w-adams , 258 F.3d 156 ( 2001 )

Cora Hubbard Williams v. Cora Williams Murdoch and ... , 330 F.2d 745 ( 1964 )

Neitzke v. Williams , 109 S. Ct. 1827 ( 1989 )

in-re-stephen-j-mcdonald-rosemarie-j-mcdonald-debtors-stephen-j , 205 F.3d 606 ( 2000 )

Stanford Shane Otis Terrell Robert Stewart v. William ... , 213 F.3d 113 ( 2000 )

Kailash C. Pani, M.D., and Kailash C. Pani, M.D., P.C. v. ... , 152 F.3d 67 ( 1998 )

Steele v. Federal Bureau of Prisons , 355 F.3d 1204 ( 2003 )

Miles v. Apex Marine Corp. , 111 S. Ct. 317 ( 1990 )

No. 96-5788 , 109 F.3d 883 ( 1997 )

Lokmar Y. Abdul-Wadood v. Sylvester Nathan, Lokmar Y. Abdul-... , 91 F.3d 1023 ( 1996 )

Sherry J. Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380 ( 1994 )

Robert Bruno Ciarpaglini v. Doctor Narinder Saini, Doctor ... , 352 F.3d 328 ( 2003 )

Medberry v. Butler , 185 F.3d 1189 ( 1999 )

John Ruddin Brown v. Lisa Johnson , 387 F.3d 1344 ( 2004 )

jason-roman-aka-james-edward-rose-jr-v-glen-jeffes-ron-neimeyer , 904 F.2d 192 ( 1990 )

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