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Parker v. Montgomery County Correctional Facility/Business Office Manager

United States Court of Appeals, Third Circuit

August 29, 2017

JASON PARKER, Appellant
v.
MONTGOMERY COUNTY CORRECTIONAL FACILITY/BUSINESS OFFICE MANAGER, IN THEIR OFFICIAL, INDIVIDUAL & PRIVATE; JULIO ALGARIN WARDEN; NANCY T. MCFARLAND, PRESIDENT; ANTHONY BUCCI, SOCIAL WORKER; MONTGOMERY COUNTY; MONTGOMERY COUNTY CORRECTIONAL FACILITY;PRISON INSPECTORS, IN THEIR INDIVIDUAL, OFFICIAL AND PRIVATE CAPAC. JASON PARKER, Appellant
v.
POLICE OFFICER DAVID O'CONNOR; POLICE OFFICERBRAD MOMME, #7631; PHILA. POLICE CHIEF CHARLES RAMSEY; PHILA. MAYOR MICHAEL NUTTER; PHILA. POLICE DEPARTMENT; CITY OF PHILADELPHIA; JUDGE ANGELO FOGLIETTA;GOVERNOR OF PENN., TOM CORBETT, OR TOM WOLF;BARACK OBAMA, PRESIDENT OF THE UNITED STATES; DISTRICT ATTORNEY SETH WILLIAMS; ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, AND/OR LORETTA LYNCH, IN THEIR OFFICIAL, INDIVIDUAL AND PRIVATE CAPACITIES

          Argued July 11, 2017

         On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court Nos. 2-15-cv-04205, 2-15-cv-03475 District Judge: The Honorable Mitchell S. Goldberg

          Ryan T. Becker, Esq. [ARGUED] Peter C. Buckley, Esq. Fox Rothschild Counsel for Appellant Jason Parker

          Philip W. Newcomer, Esq. [ARGUED] Montgomery County Solicitor's Office Counsel for Appellees Montgomery County Correctional Facility and County of Montgomery

          Before: SMITH, Chief Judge, FUENTES, Circuit Judge, and STARK, Chief District Judge [*]

          OPINION

          SMITH, CHIEF JUDGE.

         This appeal requires us to answer a question about the "three strikes rule" of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(g), which was left unresolved by the Supreme Court in Coleman v. Tollefson, 135 S.Ct. 1759 (2015): may an indigent prisoner appealing a District Court's imposition of his "third strike" proceed in forma pauperis ("IFP") for that appeal without demonstrating that he is in imminent danger of serious physical injury? We conclude, based upon the plain text of the statute, and guided by the Supreme Court's reasoning in Coleman, that we must answer this question in the negative. Accordingly, we will deny Parker's motion to proceed in forma pauperis.

         I.

         Congress enacted the PLRA in an effort to stem a rising tide of prisoner suits flooding the federal court system. See Title VIII, Pub. L. No. 104-134, 110 Stat. 1321 (1996), amending 28 U.S.C. §§ 1915-1915A; see also Woodford v. Ngo, 548 U.S. 81, 84 (2006); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc). Because "Congress concluded that the large number of meritless prisoner claims was caused by the fact that prisoners easily obtained I.F.P. status and hence were not subject to the same economic disincentives to filing meritless cases that face other civil litigants, " Abdul-Akbar, 239 F.3d at 312, the PLRA increases the economic burdens of civil litigation for prisoners.

         Among other things, the PLRA requires a prisoner who files a civil complaint or appeal in federal court to pay the full amount of any applicable filing and docketing fees. 28 U.S.C. § 1915(b)(1). A prisoner who is indigent may be granted IFP status and thereby be excused from pre-payment of fees. IFP status does not, however, eliminate the filing and docketing fee obligations. Rather, it permits the prisoner to pay an initial partial fee followed by subsequent monthly installments until the fees are paid in full. See 28 U.S.C. § 1915(b)(1), (2).

         In addition, the PLRA imposes the "three strikes rule, " which "limits a prisoner's ability to proceed I.F.P. if the prisoner abuses the judicial system by filing frivolous actions." Abdul-Akbar, 239 F.3d at 312. The rule applies to those prisoners who are the most frequent filers of meritless civil suits and appeals in federal courts as follows:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). "The 'three strikes' provision was 'designed to filter out the bad claims and facilitate consideration of the good.'" Coleman, 135 S.Ct. at 1764 (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)).

         II.

         Jason Parker, an indigent prisoner, [2] has been a prolific pro se litigant in the United States District Court for the Eastern District of Pennsylvania, where he initiated as many as forty civil matters over a relatively short period of time. For current purposes, we need focus on only three of those proceedings.

         In late 2014, Parker filed a complaint in Parker v. Nutter, No. 2:14-cv-07113 (E.D. Pa.) ("Nutter"), in which he claimed that various officials subjected him to false arrest, malicious prosecution, and the use of excessive force in the course of his arrest in December 2011. He accompanied the complaint with a motion to proceed IFP. By order entered March 19, 2015, the District Court granted the IFP motion and considered the case pursuant to the PLRA's IFP screening provision, 28 U.S.C. § 1915(e), which directs a court to dismiss a case "at any time" if it determines that the "action or appeal is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." Id. § 1915(e)(2)(B)(i)-(iii). The District Court concluded that Parker's claims were barred by Pennsylvania's two-year statute of limitations and therefore dismissed the complaint with prejudice pursuant to § 1915(e)(2)(B)(ii). Parker did not appeal the dismissal.[3] This was Parker's first strike.

         Parker's next strikes stem from two civil rights complaints that he filed in the summer of 2015, and which underlie the appeals before us. In the first complaint, Parker v. O'Connor, No. 2:15-cv-03475 (E.D. Pa.) ("O'Connor"), Parker claimed-as he had in Nutter-that officials subjected him to assault, false arrest, and malicious prosecution in the course of his December 2011 arrest. In the second complaint, Parker v. Montgomery County Correctional Facility, No. 2:15-cv-04205 (E.D. Pa.) ("MCC"), Parker claimed that prison officials interfered with his access to the courts by depriving him of prisoner account statements necessary to perfect IFP motions in his pending litigation. In both O'Connor and MCC, Parker moved to proceed IFP. He was initially denied that status without prejudice due to a failure to provide the required prisoner account statement, but in both cases, he later filed the necessary documents. The District Court then granted the IFP motions and screened both complaints pursuant to 28 U.S.C. § 1915(e)(2)(B).

         On September 17, 2015, the District Court entered a memorandum opinion and order in each proceeding, dismissing them both. The District Court concluded that O'Connor was malicious "because it repeats previously litigated claims"-namely, the claims Parker had presented in Nutter. JA 12a. In addition, to the extent O'Connor included several additional defendants not previously named in Nutter, the District Court concluded that the claims against those defendants were frivolous because the new defendants did not have any involvement with the events giving rise to his claims. The District Court therefore dismissed O'Connor as frivolous, malicious, and for failure to state a claim pursuant to § 1915(e)(2)(B)(i) and (ii). This was Parker's second strike.[4]

         In MCC, the District Court concluded that, because Parker eventually received the prisoner account statements he required, he could not establish any injury: "[h]e has not described any non-frivolous cases that he was prohibited from pursuing because he could not obtain his prison account statement." JA 19a-20a. Accordingly, the District Court dismissed MCC for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) and, because it determined that amendment would be futile, did not grant leave to amend. This was Parker's third strike.

         Parker timely filed these pro se appeals from the O'Connor and MCC judgments. Parker filed motions to proceed IFP in both matters, as well as motions for the appointment of counsel. Because the two dismissals are Parker's second and third strikes under § 1915(g), the Clerk of this Court directed him to file a motion demonstrating imminent danger of serious physical injury. Parker complied.

         Parker's IFP motions, counsel motions, and imminent danger motions were submitted to a panel of this Court. In response, the Court entered an order on March 24, 2016, which: (1) consolidated the appeals for briefing; (2) provisionally granted Parker's IFP motions, solely for the purpose of considering his counsel motions, and deferred assessment of the appeal fees[5]; (3) granted the counsel motions; (4) directed counsel to address, "in addition to any other issues counsel may wish to raise, " the question left unanswered by Coleman, 135 S.Ct. at 1765, i.e., "whether the IFP statute affords a prisoner IFP status with respect to an appeal from a third qualifying dismissal under § 1915"; and, finally, (5) referred the IFP and imminent danger motions to the merits panel.

         Peter C. Buckley, Esq., and Ryan T. Becker, Esq., appeared as pro bono counsel for Parker.[6] Initially, because these appeals were from screening decisions made by the District Court prior to any defendant entering an appearance, no appellee participated in either matter. At the direction of the Court, the Clerk issued an order inviting Montgomery County to ...


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