United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING MOTION TO SET
ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS, AND TO AMEND OR
CORRECT COMPLAINT [DKT. NO. 80]
M. KEELEY UNITED STATES DISTRICT JUDGE
before the Court is the plaintiff's motion to set aside
the Court's judgment, to proceed IFP, and to amend or
correct his complaint (dkt. no. 80). For the reasons that
follow, the Court DENIES the motion.
January 27, 2014, the plaintiff, Kareem Milhouse
(“Milhouse”), filed a Bivens action, in
which he alleged that prison officials had violated his
Eighth Amendment rights by labeling him a
“snitch” to other inmates (dkt. no. 1). Milhouse
alleged that he was facing unsafe conditions, including
numerous death threats, as a consequence of being labeled a
snitch. He claimed that, on January 18, 2014, he requested a
transfer that went ignored, but that prison officials could
have eliminated “any threat to bodily harm through
immediate transfer.” Based on these allegations,
Milhouse sought $360, 000, 000 in damages.
accordance with LR PL P 2, the Court referred this case to
the Honorable James E. Seibert, United States Magistrate
Judge, who performed the initial screening pursuant to 28
U.S.C. § 1915A. On April 2, 2014, Magistrate Judge
Seibert entered a report and recommendation
(“R&R”), recommending that the Court dismiss
Milhouse's complaint as barred by the “three
strikes” rule (dkt. no. 43). The “three
strikes” rule of the Prison Litigation Reform Act
(“PLRA”) provides that prisoners may file civil
actions in forma pauperis
(“IFP”) subject to the following limitation:
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 of serious physical injury.
28 U.S.C. § 1915(g) (emphasis added). In support of his
recommendation, Magistrate Judge Seibert cited multiple cases
brought by Milhouse that were subsequently dismissed as
frivolous, malicious, or for failure to state a claim (dkt.
no. 43 at 3, nn. 4 and 5).
9, 2014, the Court adopted the R&R and dismissed
Milhouse's complaint with prejudice (dkt. no. 62).
Milhouse appealed the Court's decision to the Fourth
Circuit Court of Appeals. In a per curiam decision
issued December 2, 2014, the Fourth Circuit denied the
appeal, finding no reversible error and “affirm[ing]
for the reasons stated by the district court.”
Milhouse v. O'Brien, 586 Fed.Appx. 126 (mem)
(4th Cir. 2014).
February 16, 2017, Milhouse filed the instant motion seeking
to set aside the Court's judgment, to proceed IFP, and to
amend or correct his complaint (dkt. no. 80). He bases his
motion on an unpublished per curiam opinion by the
Third Circuit Court of Appeals, decided on February 11, 2016,
that concluded he was not subject to the three strikes rule.
Millhouse v. Sage, 639 Fed.Appx. 792, 793 (3rd Cir.
motion fails for two reasons. First, he failed to move within
a reasonable time under Rule 60. In addition, Milhouse has
had at least three cases dismissed as frivolous, meritless,
or for failure to state a claim and, consequently, is subject
to the three strikes rule.
Federal Rule of Civil Procedure 60
Rule of Civil Procedure 60 provides in pertinent part: . . .
(b) Grounds for Relief from a Final Judgment, Order,
or Proceeding. On motion and just terms, the court
may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct ...