Argued May 30, 2013
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.
Dawn Marie Ball Pro Se Appellant.
Kathryn M. Kenyon [ARGUED] Pietragallo, Gordon, Alfano, Bosick & Raspanti 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 Counsel for Appellees Diggan
Alan S. Gold [ARGUED] Gold & Ferrante Counsel for Appellees Woods, Shiptowski
Matthew E. Carey [ARGUED] Thomas J. Derbesy [ARGUED] Richard H. Frankel Drexel University Earle Mack School of Law Court Appointed Amicus Curiae
Before: JORDAN, VANASKIE and COWEN, Circuit Judges.
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 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.
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 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 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).
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 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.
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
Litigation Prior to the Present Appeals