Dawn Ball v. Famiglio

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