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Milhouse v. O'Brien

United States District Court, N.D. West Virginia

July 28, 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. 34]

          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. 34). For the reasons that follow, the Court DENIES the motion.

         BACKGROUND

         On March 31, 2014, the plaintiff, Kareem Milhouse (“Milhouse”), filed a Bivens action, in which he alleged that prison officials had violated his Eighth Amendment rights by failing to provide him adequate medical treatment and proper medication (dkt. no. 1). On April 14, 2014, he filed a motion to proceed pursuant to imminent danger, alleging that, as a result of the defendants' indifference, he was in imminent danger from self-inflicted injury and death by suicide. He claimed that he twice attempted suicide because of depression resulting from death threats from other inmates who believed that Milhouse was a “snitch.” On May 1, 2014, without leave of court, Milhouse filed an amended complaint, naming only two of the original defendants, “Fanning” and Terry O'Brien, ” and adding a third, “W. Odom, Associate Warden, USP Hazelton” (dkt. no. 7). The amended complaint asserted a lone claim for deliberate indifference and sought injunctive relief in the form of a court order requiring prison officials to provide him with proper treatment, as well as monetary damages of $30, 000, 000 for his pain and suffering.

         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 May 7, 2014, Magistrate Judge Seibert entered a report and recommendation (“R&R”), recommending that the Court deny and dismiss Milhouse's complaint and amended complaint without prejudice as “frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915(A(b)(1)” (dkt. no. 15 at 6). The R&R also recommended that the Court deny Milhouse's motion to proceed in forma pauperis pursuant 28 U.S.C. § 1915(g), also known as the “three strikes” rule (dkt. no. 15 at 6). 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. 15 at 4, nn. 8 and 9).

         On March 3, 2015, the Court adopted the R&R in part, but allowed Milhouse to proceed IFP on his claim for injunctive relief requesting future treatment (dkt. no. 24). The Court concluded that Milhouse sufficiently alleged potential continuing or future injury such that he could proceed under the imminent danger exception to the three strike rule. Id. at 3-5 (citing Smith v. Mayes, 358 Fed.Appx. 411, 412 (4th Cir. 2009).

         The Court then proceeded to evaluate that portion of Milhouse's complaint alleging future risk of harm and seeking prospective relief and ordered that it be dismissed with prejudice for failure to state a claim upon which such relief can be granted. Id. at 7. Further, the Court adopted the portion of the R&R recommending that Milhouse not be allowed to proceed IFP on any claims seeking relief for any past misconduct, and dismissed those claims without prejudice. Id. The Court, at that time, was silent on whether the R&R had correctly concluded that the claims seeking relief for any past misconduct were frivolous and had failed to states a claim. Milhouse appealed the Court's decision to the Fourth Circuit Court of Appeals, which, on June 17, 2015, dismissed the appeal for failure to prosecute (dkt. no. 33).

         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. 34).[1] He bases his motion on an unpublished per curiam opinion by the Third Circuit Court of Appeals, decided on February 11, 2016, in which that court 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, he has had at least three cases dismissed as frivolous, meritless, or for failure to state a claim; consequently, he 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 ...

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