Mills, et al. v. Fischer, et al., No. 11-276 (2d Cir. 2011)
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Plaintiff moved for leave to proceed in forma pauperis and for appointment of counsel in this appeal from an order of the district court that dismissed his 42 U.S.C. 1983 complaint. The motions were denied on the ground that plaintiff had filed three or more frivolous lawsuits in violation of the Prison Litigation Reform Act, 28 U.S.C. 1915(g).
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11-276-pr Mills v. Fischer 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Submitted: June 15, 2011 Decided: July 14, 2011) Docket No. 11-276-pr - - - - - - - - - - - - - - - - - - - - -x RICHARD MILLS and ELMER F. MILLS, JR., Plaintiffs-Appellants, KODEY MILLS, Plaintiff, - v.BRIAN FISCHER, JOHN B. LEMPKE, FEDORA, Correction Officer, Defendants-Appellees, JANE DOE, Correction Officer, Defendant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WINTER and McLAUGHLIN, Circuit Judges. Plaintiff-Appellant Richard Mills, pro se and 38 incarcerated, moves for leave to proceed in forma pauperis 39 and for appointment of counsel in this appeal from an order 1 of the United States District Court for the Western District 2 of New York (Arcara, J.) that dismissed his 42 U.S.C. § 1983 3 complaint. 4 has filed three or more frivolous lawsuits. 5 § 1915(g). 6 7 8 9 10 11 12 13 14 15 16 17 18 19 The motions are denied on the ground that Mills See 28 U.S.C. Richard Mills, pro se, Romulus, NY. Elmer F. Mills, Jr., pro se, Byron, NY. Kate H. Nepveu, New York State Office of the Attorney General, Albany, NY, for DefendantsAppellees. DENNIS JACOBS, Chief Judge: Plaintiff-Appellant Richard Mills, pro se and 20 incarcerated, moves for leave to proceed in forma pauperis 21 ( IFP ) and for appointment of counsel in this appeal from 22 an order of the United States District Court for the Western 23 District of New York (Arcara, J.) that dismissed his 42 24 U.S.C. § 1983 complaint. 25 I 26 Under the Prison Litigation Reform Act ( PLRA ), a 27 prisoner who accumulates three strikes (dismissed actions 28 that were frivolous, malicious, or fail[ed] to state a 29 claim ) is barred from bringing additional civil actions or 2 1 appeals in forma pauperis, unless she is under imminent 2 danger of serious physical injury. 3 § 1915(g). 4 his visitation rights at the prison, does not allege danger 5 of serious physical injury. See 28 U.S.C. Mills s complaint, which concerns limitations to 6 Mills has, at a minimum, five strikes: (1) Mills v. 7 Appellate Div. Fourth Dep t, No. 05-cv-612 (W.D.N.Y. Mar. 7, 8 2006), a complaint dismissed for failing to state a claim 9 and for seeking monetary relief against a defendant who is 10 immune; (2) the subsequent appeal in Appellate Division that 11 was dismissed as lacking an arguable basis in fact and law,1 12 No. 06-1541-pr (2d Cir. Sept. 20, 2006); (3) Mills v. 13 Genesee Cnty., No. 04-cv-989 (W.D.N.Y. Oct. 5, 2005), a 14 complaint dismissed for failing to state a claim and for 15 seeking monetary relief against a defendant who is immune; 16 (4) the subsequent appeal in Genesee County that was 17 dismissed as lacking an arguable basis in fact and law, No. 18 05-6591-pr (2d Cir. Aug. 29, 2006); (5) Mills v. Noonan, No. 19 04-cv-142 (W.D.N.Y. May 10, 2004), a complaint that was 1 [A]n incarcerated plaintiff incurs two strikes when a complaint and a subsequent appeal are independently dismissed for grounds listed in [28 U.S.C.] § 1915(g). Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010). 3 1 dismissed for failing to state a claim and for seeking 2 monetary relief against a defendant who is immune. 3 In some instances, Mills s litigation initiations were 4 dismissed on the ground of judicial immunity. See, e.g., 5 Noonan, No. 04-cv-142 (W.D.N.Y. May 10, 2004) at 3 ( [The 6 judge] is entitled to absolute judicial immunity with 7 respect to all of the claims alleged and the complaint must 8 be dismissed against him. ). 9 explicitly categorize as frivolous a claim dismissed by The IFP statute does not 10 reason of judicial immunity,2 but we will: Any claim 11 dismissed on the ground of absolute judicial immunity is 12 frivolous for purposes of 28 U.S.C. § 1915(g). 13 (more than) three strikes therefore disqualify him from IFP 14 status. See id. 15 16 17 Mills s II Mills s ineligibility for IFP status precludes him from receiving appointed counsel.3 All the relevant IFP 2 The criteria for accumulating strikes under § 1915(g) track two of the three grounds upon which the court shall dismiss [a] case if they exist, § 1915(e)(2)(B)(i)-(ii), but do not include the third ground of seek[ing] monetary relief against a defendant who is immune from such relief, § 1915(e)(2)(B)(iii). 3 A district court is empowered only to request an attorney to represent an IFP plaintiff, § 1915(e)(1), but 4 1 provisions, including those concerning three strikes and 2 appointment of counsel, are in Section 1915 of Title 28 of 3 the U.S. Code. 4 strikes provision effects disqualification from bring[ing] 5 a civil action or appeal[ing] a judgment in a civil action 6 or proceeding under this section. 7 added). 8 under § 1915 is likewise ineligible for the benefits 9 provided therein, such as appointment of counsel. See 28 U.S.C. § 1915(e)(1), (g). The three Id. § 1915(g) (emphasis It follows that a litigant barred from proceeding Accord 10 Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011). 11 hold otherwise would violate the PLRA s principal purpose 12 of deterring frivolous prisoner lawsuits and appeals. 13 Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997). To 14 15 For the foregoing reasons, Mills s motion for leave to 16 proceed in forma pauperis and for appointment of counsel is 17 denied. 18 Mills pays the applicable filing fees. The appeal will be dismissed in 30 days unless case law commonly refers to the arrangement as appointed counsel. 5
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