Brown v. Sage, No. 17-1222 (3d Cir. 2019)
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Federal prisoner Brown filed his “Kemmerer” complaint, alleging that prison officials had injured him; he successfully moved to proceed in forma pauperis (IFP) under the Prison Litigation Reform Act, which waives fees if the prisoner demonstrates that he cannot afford the fees. Under 28 U.S.C. 1915(g), the “three strikes rule,” a prisoner cannot proceed IFP if he has three times brought an action that was dismissed as frivolous, malicious, or failing to state a claim. Brown later filed his “Sage” complaint, alleging that prison employees were deliberately indifferent to his serious health issues. Brown again sought to proceed IFP, attempting to invoke the rule’s “imminent danger” exception. The court denied Brown’s motion in Sage and vacated its Kemmerer IFP decision based on Brown’s “strikes” in California prison litigation. Brown filed a third action, claiming that a prison physician assistant denied him treatment. The court again held he did not meet the exception and dismissed the case.
In consolidated appeals, the Third Circuit reversed, concluding that Brown's third "strike" did not qualify. Following rehearing en banc, the court denied Brown’s IFP application, clarifying the framework for assessing IFP applications. Courts need not employ a rigid “two-step” analysis of the plaintiff’s economic status and the merits of the complaint. Courts are free to assess the merits of the lawsuit “at any time.” Brown “brought an action” in his third California case when he tendered his complaint and asked to proceed IFP.
This opinion or order relates to an opinion or order originally issued on September 7, 2018.
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