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