United States District Court, W.D. Pennsylvania
ORDER RE: ECF NO. 14
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE.
Brown, ("Plaintiff), has been granted leave to proceed
in forma pauperis, ECF No. 2, and his pro se prisoner civil
rights Complaint has been filed, ECF No. 8. In the Order,
granting Plaintiffs IFP Motion (the "IFP Order"),
the Court noted that Plaintiff had acquired three strikes but
that he had alleged exposure to second hand smoke and
pursuant to case law from the United States Court of Appeals
for the Third Circuit, such exposure could come within the
narrow exception for three strikes, which requires
allegations of imminent danger of serious physical injury.
Gibbs v. Cross, 160 F.3d 962 (3d Cir. 2001). In the
IFP Order, the Court stated that after service, the
Defendants could challenge the factual allegations of
Plaintiff and whether Plaintiff actually comes within the
imminent danger exception. As noted, it is the Court that
makes this determination, not a jury. If the Court determines
that Plaintiff does not come within the exception, the IFP
Order could then be vacated.
August 9, 2019, Plaintiff filed a "Motion to Amend In
Forma Pauperis Order" in which he made two distinct
claims. First, Plaintiff claimed that the IFP Order erred in
counting Brown v. Green. No. 487-cv-2018 (M.D. Pa.)
as a strike. Secondly, Plaintiff claimed that the prison
authorities erred in deducting money from his account and
requested a delay in having to pay the filing fees piecemeal
as required even if granted IFP. We will address each claim
first alleges that we erred in counting Brown v.
Green, No. 487-cv-2018 (M.D. Pa.) as a strike. We are
United States Court of Appeals for the Third Circuit set out
a bright line rule for what qualifies as a strike. In
Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013), the
Court of Appeals held:
Thus, we adopt the following rule: 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),
1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of
not only must a court do so, it must do so correctly. See, e,
g., Millhouse v. Heath, 866 F.3d 152, 154 (3d Cir.
2017) ("Because the District Court explicitly and
correctly concluded that Millhouse's complaint revealed
an immunity defense on its face and dismissed with prejudice
for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Doe qualifies
as a strike.").
that the dismissal of Plaintiff s civil action in Brown
v. Green, No. 487-cv-2018 by the United States District
Court for the Middle District of Pennsylvania meets these
the District Court granted the Motion to Dismiss for Failure
to state a claim upon which relief could be granted, under
Fed.R.Civ.P. 12(b)(6), that was filed by the defendants in
Brown v. Green wherein they asserted the
defense of res judicata. The District Court did so because it
found that Plaintiffs suit was barred by res judicata. We
attach hereto a copy of the District Court's Memorandum
as Appendix I. The Memorandum makes clear that the Middle
District in Brown v. Green. No. 487-cv-2018, granted
the Defendants' Motion to Dismiss that had been filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure and that the civil action was entirely dismissed
with prejudice for failure to state a claim upon which relief
could be granted.
not only did the Middle District expressly dismiss the
Complaint in Brown v. Green for failure to state a
claim upon which relief could be granted pursuant to
Fed.R.Civ.P. 12(b)(6), with prejudice, it did so correctly.
Baxter v. Corrections Corp. of Am., 3-15-0205, 2015
WL 3397772, at *2 (M.D. Tenn. May 26, 2015) ("Because
the instant case is barred by the doctrine of res judicata,
it fails to state a claim on which relief may be granted ....
For these reasons, not only should the instant case be
dismissed with prejudice, dismissal of the instant case
should count as a 'strike' under §
1915(g)."). A dismissal of a Complaint because it is
barred by res judicata is properly dismissed for failure to
state a claim upon which relief can be granted and, such a
dismissal constitutes a "strike." Walker v.
Page, 59 Fed.Appx. 896, 900 (7th Cir. 2003)
(case squarely barred by res judicata counts as strike under
§ 1915(g)); Higgins v. Carpenter, 258 F.3d 797,
801 (8th Cir. 2001) (prior cases dismissed as barred by res
judicata qualified as strikes); Burke v. St. Louis City
Jails, 603 Fed.Appx. 525 (8th Cir. 2015) (affirming the
portion of the district court's decision determining that
the plaintiff had acquired three qualifying strikes when one
of the cases the district court cited was dismissed on res
judicata grounds); Harmon v. Webster. 263 Fed.Appx.
844, 846 (11th Cir. 2008) (affirming the district court's
determination that its dismissal on res judicata grounds
should count as a strike for purposes of § 1915(g)).
Hence, Brown v. Green surely constitutes a strike
and indeed, Plaintiffs third strike.
we reject, as legally unfounded, Plaintiffs contention that
because he has appealed the District Court's dismissal of
his case in Brown v. Green, that the pendency of the
appeal prevents this Court from counting the Middle
District's dismissal as a strike. This argument has been
made to, and, rejected by the United States Court of Appeals
for the Third Circuit. Parker v. Montgomery County
Correctional Facility. 870 F.3d 144 (3d Cir. 2017)
(holding that the pendency of an appeal from the district
Court's dismissal which counted as a third strike did
indeed prevent the now three struck prisoner from proceeding
in forma pauperis on appeal from the third strike).
Brown v. Green, No. 487-cv-2018 (M.D. Pa.) counts as
a strike and thus, contrary to Plaintiffs assertion in his
pending Motion, Plaintiff has indeed accumulated three
strikes and, so, contrary to Plaintiffs contention, if the
Court determines that Plaintiff does not come within the
imminent danger exception, the Order granting his IFP Motion
could indeed be vacated and he could be required to pay the
entire filing fee or face dismissal. Hence, his Motion to
Amend the In Forma Pauperis Order is DENIED
to the extent that it sought to have this Court conclude that
Brown v. Green does not constitute a
second complaint is that the prison authorities violated this
Court's IFP Order by deducting money from his account
when he had less than $10.00 in his inmate trust account. We
are unpersuaded. Plaintiff attached a copy of his monthly
account statement showing that on August 2, 2019, $5.01was
deducted from his inmate account when there was a negative 35
cents balance in the account. The description of the
deduction was "Legal Fees (in Forma Pauperis)." ECF
No. 14-1. We are not persuaded that this deduction was for
this case or pursuant to any order issued by this Court.
we note that deductions by Inmate Account Officers for
federal filing fees paid to District Courts indicate the
civil case number for the case in which the fee is being
paid. See 14-1 at 1 (entry of July 16, 2019). No
such description was made on the fee Plaintiff is challenging
herein. Secondly, no payment for this case has been received
by the Clerk's Office. Furthermore, we take judicial
notice that Plaintiff has filed a nearly identical motion in
the United States Court of Appeals for the Third Circuit,
alleging that the Inmate Accounting Officer is not complying
with the Third Circuit's order assessing the PLRA
payments and asserting the very same deduction made on August
2, 2019 which he complains about herein is being erroneously
deducted from his account in violation of the Third Circuit
Court's Order. Brown v. Green, No. 19-245 (3d
Cir. Motion filed 8/9/2019). Plaintiffs nearly identical
motion filed in the Third ...