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Milhouse v. O'Brien

United States District Court, N.D. West Virginia

July 27, 2017

KAREEM MILHOUSE, Plaintiff,
v.
TERRY O'BRIEN, Warden, et al., Defendants.

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO SET ASIDE JUDGMENT, TO PROCEED IN FORMA PAUPERIS, AND TO AMEND OR CORRECT COMPLAINT [DKT. NO. 80]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         Pending 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.

         BACKGROUND

         On 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.

         In 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).

         On May 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).

         On 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).[1] 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. 2016).[2]

         DISCUSSION

         Milhouse's 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.

         A. Federal Rule of Civil Procedure 60

         Federal 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 ...

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