Millhouse v. Heath, No. 15-2278 (3d Cir. 2017)Annotate this Case
The district court denied a motion to proceed in forma pauperis (IFP) filed by Millhouse, a Lewisburg prisoner. The court identified five strikes under the Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915(g), and found that Millhouse failed to establish that he was under imminent danger of serious physical injury. The statute limits IFP status: 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. The Third Circuit vacated. For purposes of this appeal, Millhouse has only one strike. The court must look to the date the notice of appeal is filed, not the date on which the court rules, in assessing whether a particular dismissal counts as a strike and a dismissal without prejudice for failure to state a claim does not rise to the level of a strike.