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Brown v. Sage

United States Court of Appeals, Third Circuit

October 30, 2019

JOSEPH A. BROWN, Appellant
v.
DR. SAGE, (Psych Dept.); DR. EIGENBRODE, (Psych Dept.); DR. SHOUEY, (Psych Dept.) Appellees in No. 17-1222 JOSEPH A. BROWN, Appellant
v.
C.O. KEMMERER; UNITED STATES; B.R. PEALER; T. CRAWFORD; C.O. J. YOUNG; C.O. J. TREIBLY; C.O. J. HARDY; Lt. R. MILLER; C.O. D. HERR; C.O. A. CRAVELING; C.O. J. FINCK; C.O. R. WICKHAM; Lt. J. SHERMAN; Lt. DOUH; Lt. J. SEEBA; Lt. R. JOHNSON; Lt. P. CARRASQUITTO; P.A. S. DEES; P.A. L. POTTER; P.A. BRENNAMAN; P.A. H. MIOSI; J. CARPENTER; J. RUSSO Appellees in No. 17-1527 JOSEPH A. BROWN, Appellant
v.
SARAH DEES, PHYSICIAN ASSISTANT, USP Appellee

          Argued June 14, 2018

          On Appeal from the United States District Court for the Middle District of Pennsylvania (Nos. 1:16-cv-02477, 1:14-cv-01520, and 1:17-cv-00025) District Judge: Honorable Sylvia H. Rambo

          Julia Chapman Michael S. Doluisio Ellen L. Ratigan Stefanie A. Tubbs Dechert Counsel for Appellant

          Michael J. Butler Office of United States Attorney Caroline D. Lopez United States Department of Justice Civil Division, Appellate Counsel for Appellees in No. 17-1527

          Before Merits Panel Resubmitted En Banc July 23, 2019 Before: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, RESTREPO, BIBAS, PORTER, M AT E Y, PHIPPS, and FUENTES, Circuit Judges.

          OPINION

          CHAGARES, CIRCUIT JUDGE.

         Plaintiffs filing lawsuits in federal court generally need to pay a filing fee. But that does not mean the courthouse doors are closed to those who cannot afford it. Indigent plaintiffs can avoid the filing fee if they file a successful application for leave to proceed "in forma pauperis," or IFP. Plaintiffs who are prisoners, however, may be barred from proceeding IFP by operation of the so-called "three-strikes rule." That rule, enacted as part of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (the "PLRA"), provides that a prisoner cannot proceed IFP if, "on 3 or more prior occasions, while incarcerated or detained in any facility," the prisoner has "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).

         Appellant Joseph Brown moved for leave to proceed IFP in three cases in the United States District Court for the Middle District of Pennsylvania. The District Court denied his motions, finding that Brown had accrued three strikes in three earlier cases in federal courts in California. Brown appealed, but appeals have fees too, so he also moves for leave to proceed IFP in each of his three appeals.

         We granted the petition for rehearing en banc in this case to clarify the framework that courts may use in assessing IFP applications under the PLRA. Previously, we suggested that courts must employ a "two-step" analysis: first, assess the plaintiff's economic status, and second, consider the merits of the complaint. But we clarify today that the PLRA does not require such a rigid, stepwise process; rather, courts are free to assess the merits of the lawsuit "at any time." § 1915(e)(2). With this flexible approach in mind, we will deny Brown's motions for leave to proceed IFP.

         I.

         Joseph Brown has been a federal prisoner at all times pertinent to this consolidated appeal. In 2014, he filed a complaint in the United States District Court for the Middle District of Pennsylvania, alleging that various prison officials at the United States Penitentiary in Lewisburg, Pennsylvania - where Brown was then incarcerated - had injured him, in violation of his Fifth and Eighth Amendment rights. See Brown v. Kemmerer, No. 1:14-cv-01520. Brown moved in Kemmerer for leave to proceed IFP, and the District Court granted his motion.

         Then, in 2016, Brown started another federal action in the Middle District of Pennsylvania, alleging that prison psychologists, among others, were deliberately indifferent to his serious mental-health needs. See Brown v. Sage, No. 1:16-cv-02477. As in Kemmerer, Brown again moved for leave to proceed IFP. But this time, the District Court denied the motion, concluding that Brown was barred by the three-strikes rule. The District Court found that Brown had filed three other actions in federal courts in California that all had been dismissed for failure to state a claim upon which relief may be granted:

1. Brown v. United States ("Brown I"), No. 1:11-cv-01562, which the United States District Court for the Eastern District of California dismissed in June 2013 for failure to state a claim.
2. Brown v. United States ("Brown II"), No. 1:12-cv-00165, which the United States District Court for the Eastern District of California dismissed in November 2014, also for failure to state a claim.
3. Brown v. Profitt ("Profitt"), No. 5:13-cv-02338, which the United States District Court for the Central District of California dismissed in March 2014, again for failure to state a claim.

         In all three cases, the federal district courts in California explicitly stated that the dismissals qualified as strikes under § 1915(g). So, finding also that Brown did not qualify for the imminent-danger exception to the three-strikes rule, the District Court in Sage denied Brown's IFP motion and dismissed his complaint without prejudice.

         Brown's IFP motion in Sage prompted the District Court to revisit its earlier decision to grant Brown's IFP motion in Kemmerer. On the very same day it denied Brown's motion in Sage, the District Court vacated its earlier order in Kemmerer and denied Brown's IFP motion there as well. As it did in Sage, the District Court pointed to the three strikes that Brown had accrued in federal courts in California.

         The day after the District Court denied his IFP motions in Sage and Kemmerer, Brown filed one more lawsuit in the Middle District of Pennsylvania. See Brown v. Dees, No. 1:17-cv-00025. In this third suit, he alleged that a prison physician assistant was deliberately indifferent to severe burns he received from accidentally spilling hot water on his groin. Brown again moved to proceed IFP, arguing that, although he had three strikes against him, he qualified for the imminent-danger exception. The District Court denied the motion, concluding that Brown had not shown imminent danger.

         Brown appealed the denial of his IFP motions in Sage, Kemmerer, and Dees, and he also moved to proceed IFP in those appeals. We consolidated Brown's three cases and appointed counsel to represent him.[1] A divided panel of this Court granted Brown's IFP motions. See Brown v. Sage, 903 F.3d 300 (3d Cir. 2018). We subsequently granted the defendants' petition for rehearing en banc and vacated the panel's opinion and judgment.

         II.[2]

         Brown has moved to proceed IFP in his three appeals. So, before we can consider whether the District Court erred in denying Brown's original IFP motions, we must decide whether Brown can proceed IFP before us. In so deciding, we will confront the same issues that the District Court did. But technically we are not yet reviewing the District Court's orders; we are assessing Brown's IFP ...


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