July 11, 2017
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.
T. Becker, Esq. [ARGUED] Peter C. Buckley, Esq. Fox
Rothschild Counsel for Appellant Jason Parker
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 [*]
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.
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.
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).
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)).
Parker, an indigent prisoner,  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
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. This was Parker's first strike.
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.
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.
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.
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.
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; (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
C. Buckley, Esq., and Ryan T. Becker, Esq., appeared as pro
bono counsel for Parker. 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