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PLRA Strikes Accruing After Notice of Appeal Do Not Count to Determine IFP Eligibility

The Third Circuit Court of Appeals held on August 4, 2017 that in determining a prisoner’s in forma pauperis (IFP) motion, a court must look to the date a pleading is filed – and not the date the prisoner’s IFP motion is granted – when assessing whether a particular dismissal counts as a strike under the Prison Litigation Reform Act (PLRA).

Federal prisoner Kareena Hassan Millhouse was denied IFP status because a Pennsylvania federal district court determined he had three strikes and was ineligible to proceed IFP under 28 U.S.C. § 1915(g).

Millhouse filed a Bivens action on August 22, 2014 against several prison employees. The district court denied his motion to proceed IFP on May 5, 2015, and he submitted a notice of appeal on May 19. He then moved on June 15 to proceed IFP on appeal. The case was stayed as the Third Circuit proceeded with an appeal in another case that Millhouse had filed, Millhouse v. Sage.

On February 11, 2016, it was established in Sage that Millhouse had only one prior strike and not three as the district court had determined. While awaiting that ruling and when the stay was still in effect, Milhouse filed two other pro se civil actions. One of those cases was dismissed without prejudice and the other with prejudice; both were dismissed for failure to state a cause of action.

With the stay lifted, the Third Circuit had to determine if Millhouse was entitled to proceed IFP. The Court of Appeals noted it was undisputed that Millhouse’s second and third PLRA strikes accrued on October 27, 2015 and February 24, 2016. The Court held it must consider the date the notice of appeal was filed rather than the date it granted a motion to proceed IFP when assessing if a prisoner has PLRA strikes.

“Strikes that accrue before the filing of the notice of appeal count – while strikes that accrue after the notice of appeal is filed do not,” the appellate court wrote. It provided a detailed analysis of the law and found the statutory scheme and basic principles of fairness led it to conclude that strikes accruing after the date a notice of appeal is filed do not count under § 1915(g).

For the same reason, the Third Circuit held the district court had improperly denied Millhouse IFP status. His motion to proceed IFP on appeal was granted, and the district court’s order was vacated and remanded for further proceedings.

Following remand, Millhouse filed a motion to voluntarily dismiss the case before he received IFP status from the district court. His motion was granted and the case dismissed. See: Millhouse v. Heath, 866 F.3d 152 (3d Cir. 2017). 

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Related legal case

Millhouse v. Heath