                               PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
        _________________

  Nos. 17-1222, 17-1527, and 17-1714
         _________________


        JOSEPH A. BROWN,

                   Appellant

                  v.

     DR. SAGE, (PSYCH DEPT.);
 DR. EIGENBRODE, (PSYCH DEPT.);
   DR. SHOUEY, (PSYCH DEPT.)

                       Appellees in No. 17-1222


        JOSEPH A. BROWN,

                   Appellant

                  v.

          C.O. KEMMERER;
  UNITED STATES; B.R. PEALER;
  T. CRAWFORD; C.O. J. YOUNG;
  C.O. J. TREIBLY; C.O. J. HARDY;
              Lt. R. MILLER; C.O. D. HERR;
           C.O. A. CRAVELING; C.O. J. FINCK;
     C.O. R. WICKHAM; Lt. J. SHERMAN; Lt. DOUH;
Lt. J. SEEBA; Lt. R. JOHNSONL Lt. P. CARRASQUITTO;
  P.A. S. DEES; P.A. L. POTTER; P.A. BRENNAMAN;
        P.A. H. MIOSI; J. CARPENTER; J. RUSSO

                                            Appellees in
                                      No. 17-1527


                JOSEPH A. BROWN,

                               Appellant


                          v.

    SARAH DEES, PHYSICIAN ASSISTANT, USP

                           Appellee in No. 17-1714
                 _________________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
 (D.C. Nos. 1:16-cv-02477, 1:14-cv-01520, and 1:17-cv-
                         00025)
            District Judge: Hon. Sylvia H. Rambo
                  _________________

                 Argued June 14, 2018




                          2
  Before: SMITH, Chief Judge, CHAGARES, FUENTES,
                    Circuit Judges

                 (Filed: September 7, 2018)

Judah Bellin [Argued]
University of Pennsylvania
School of Law
3400 Chestnut Street
Philadelphia, PA 19104

Julia Chapman
Michael S. Doluisio
Ellen L. Mossman
Dechert LLP
Cira Centre
2929 Arch Street, 18th Floor
Philadelphia, PA 19104

     Attorneys for Appellant

Michael J. Butler [Argued]
Office of the United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

     Attorney for Appellees in No. 17-1527

                    _________________

                OPINION OF THE COURT
                   _________________




                               3
FUENTES, Circuit Judge.

       Petitioner Joseph Brown filed three appeals challenging
the District Court’s denials of his motions to proceed in forma
pauperis (“IFP”). He then moved to proceed IFP on appeal,
and we consolidated his cases for our review. Under the Prison
Litigation Reform Act (“Act”), a federal prisoner may proceed
IFP and file a case without prepaying the requisite fees if the
prisoner meets certain requirements, including filing an
affidavit that demonstrates that he cannot afford the fees. 1
However, under 28 U.S.C. § 1915(g), the Act’s so-called
“three strikes rule,” a prisoner cannot proceed IFP if he has “on
3 or more prior occasions, while incarcerated or detained in any
facility, brought an action . . . that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted.” 2

     Brown has previously filed three cases in federal district
courts in California that can potentially be counted as strikes
under § 1915(g). Because we conclude that we must use our
precedent to evaluate whether prior cases are strikes, rather
than that of the Circuit from which the potential strikes
emanated, we conclude that Brown has not previously accrued
three strikes. Accordingly, we will grant his motions to
proceed IFP. We will also reverse the District Court’s denials
of Brown’s motions and remand the cases for further
proceedings.


1
    28 U.S.C. § 1915(a).
2
    Id. at § 1915(g).




                                4
      Brown is a federal prisoner who filed three separate Bivens
actions alleging that his Fifth and Eighth Amendment rights had
been violated by prison employees.

          First, on August 4, 2014, Brown filed his complaint in
Brown v. Kemmerer, 3 in which he alleged that various prison
officials had physically injured him by placing him in
restraints. On the same day, Brown also filed a motion to
proceed IFP. He indicated on his IFP application that he had
not previously accrued three strikes. The District Court
construed Brown’s motion as a “motion to proceed without full
prepayment of fees and costs” and granted it.

      On December 15, 2016, while Kemmerer was
proceeding, Brown filed his complaint in Brown v. Sage, 4 in
which he claimed that he was physically injured because prison
employees, including his psychologists, were deliberately
indifferent to his serious mental health issues. As in
Kemmerer, on the day he filed his complaint, Brown also filed
a motion in Sage to proceed without prepayment of fees or
costs. The very next day, however, Brown filed a correction to
his motion, explaining that after he filed it, he received mail
informing him that he had accrued three strikes. Accordingly,
he also explained that he would invoke § 1915(g)’s “imminent
danger” exception to the three strike rule because of his “very
likely risk of suffering another traumatic incident as a result of
suffering from a chronic condition of post[-]traumatic stress
disorder.” 5 The District Court then directed Brown to either
pay the filing fees or file a motion to proceed IFP, so Brown
filed such motion.
3
  D.C. No. 1:14-cv-01520.
4
  D.C. No. 1:16-cv-02477.
5
  Id. 126.




                                 5
     On January 3, 2017, the District Court filed a
memorandum opinion in Sage denying Brown’s motion to
proceed IFP because he had previously accrued three strikes.
Specifically, the District Court concluded that Brown’s strikes
emanated from three cases in federal district courts in
California:

         1. Brown v. United States, No. 1:11-CV-01562-
         MJS, 2013 WL 2421777 (E.D. Cal. June 3, 2013)
         (“Brown I”);
         2. Brown v. United States, No. 1:12-CV-00165-
         AWI-GSA (E.D. Cal. Nov. 13, 2014) (“Brown
         II”); and
         3. Brown v. Profitt, No. 5:13-CV-02338-UA-RZ
         (C.D. Cal. Mar. 7, 2014).

       The District Court also concluded that “Brown’s
allegations d[id] not satisfy the threshold criterion of the
imminent danger exception.” 6 Accordingly, the District Court
denied Brown’s application to proceed IFP and dismissed his
complaint without prejudice.      Brown appealed shortly
thereafter.

       On the same day that the District Court filed its opinion
in Sage, January 3, 2017, it also filed a memorandum opinion
in Kemmerer vacating its previous decision to allow Brown to
proceed without full prepayment of fees and costs and denying
Brown’s IFP motion. The District Court explained that it had
recently come to its attention that Brown had accrued the
strikes enumerated above, and it concluded that it would

6
    J.A. 11.




                               6
dismiss Brown’s complaint unless he paid the necessary fees.
Brown later appealed.

      The day after the District Court filed its opinions in Sage
and Kemmerer, January 4, 2017, Brown filed Brown v. Dees, 7
his third Bivens action. In Dees, Brown claimed that prison
physician assistant Sarah Dees denied him treatment for
second-degree burns after he accidentally spilled hot water on
himself. He filed a motion to proceed IFP, in which he
indicated that he had accrued three strikes but claimed that he
satisfied § 1915(g)’s imminent danger exception because Dees
had “deliberately refused [him] medical treatment for serious
medical needs.” 8 On March 24, 2017, the District Court once
again filed an opinion explaining that Brown had previously
accumulated three strikes and that he did not meet the
imminent danger exception. It therefore denied Brown’s IFP
motion and dismissed the case. Brown appealed.

     Brown filed motions to proceed IFP in his appeals in
Sage, Kemmerer and Dees. His motions were consolidated for
our review, and we appointed pro bono counsel to represent
Brown. 9
                           I.




7
  D.C. No. 1:17-cv-00025
8
  J.A. 143.
9
  The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. “We exercise
plenary review with respect to the proper interpretation of the
[Act] and its three strikes rule.” Millhouse v. Heath, 866 F.3d
152, 156 (3d Cir. 2017) (citation omitted).




                               7
        To evaluate a petitioner’s motion to proceed IFP on
appeal, we generally follow a two-step process. First, we look
to § 1915(a) of the Act and “determine[] whether the
[petitioner] is financially eligible to proceed without
prepayment of fees.”10 Second, we analyze whether the appeal
is frivolous. 11 In deciding whether to grant a petitioner’s IFP
motion, we must also consider § 1915(g) of the Act—the three
strikes rule. Specifically, § 1915(g) provides:

       In no event shall a prisoner bring a civil action or
       appeal a judgment in a civil action or proceeding
       [in forma pauperis] 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. 12

       In this case, because the parties do not dispute that
Brown is financially eligible to proceed IFP and because his
appeals are not frivolous, our decision on Brown’s IFP motions
will turn on whether he has previously accrued three strikes.
As the District Court correctly noted, there are three cases that

10
   Urrutia v. Harrisburg Cty. Police Dep’t, 91 F.3d 451, 455
n.4 (3d Cir. 1996).
11
   Id.; Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990);
28 U.S.C. § 1915(e).
12
   28 U.S.C. § 1915(g).




                                8
we could potentially conclude constitute strikes under §
1915(g): Brown I, Brown II, and Profitt. 13

        Because all three of Brown’s prior cases were filed in
the Eastern and Central Districts of California, we must begin
our analysis by deciding whether to use our precedent or the
Ninth Circuit’s to determine whether the dismissals in Brown
I, Brown II, and Profitt qualify as strikes. This determination
is significant because, as will be discussed below, the outcome
of Brown’s IFP motions turns on which Circuit’s law applies.

       Although we have not previously addressed this issue,
we now conclude that courts in our Circuit should use our
precedent to evaluate whether prior cases qualify as strikes
under § 1915(g), regardless of the court from which they
originated. As we have often explained, panels of our Court
are bound by the precedent of prior panels, 14 as are the district
courts in our Circuit. 15 We see no reason to depart from this

13
   It is worth noting that neither party argues that there are cases
aside from the three discussed by the District Court that could
also be considered strikes. We, too, are unaware of any other
cases that should be analyzed.
14
   See, e.g., Hassen v. Gov’t of Virgin Islands, 861 F.3d 108,
114 n.5 (3d Cir. 2017) (“[A] panel of this court is bound to
follow the holdings of published opinions of prior panels of
this court.” (quoting Nationwide Ins. v. Patterson, 953 F.2d 44,
26 (3d Cir. 1991))); U.S. v. Franz, 772 F.3d 134, 144 n.8 (3d
Cir. 2014) (“[S]itting as a panel of this Court, we cannot
overrule prior precedent.”).
15
   See, e.g., Valspar Corp. v. E.I. Du Pont Nemours and Co.,
873 F.3d 185, 203 (3d Cir. 2017) (explaining that the District
Court was bound by Third Circuit precedent).




                                 9
general rule in this situation, nor have the parties provided us
with one. 16 Additionally, we have not found any other Circuit
that has declined to follow its own precedent when considering
potential strikes from another Circuit. 17 In fact, we believe that
choosing to follow our own precedent, no matter where the
potential strike occurred, promotes uniformity and efficiency
within our Circuit. Specifically, it ensures that petitioners in
identical circumstances are treated identically with respect to
their motions to proceed IFP regardless of where they have
filed past cases, and it obviates the need for us to ascertain what
constitutes a strike in every other Circuit.
        We recognize that using our own precedent to
determine whether a prior dismissal qualifies as a strike may at
times cause us to conclude that certain dismissals are not
strikes, even if they were intended as strikes by other courts.
However, although not ideal, this eventuality is not significant


16
   Instead, the parties seemed to agree at oral argument that we
should apply our own law in this case. Prior to oral argument,
we specifically asked the parties to be prepared to discuss
which Circuit’s law should be applied. Ultimately, however,
neither party argued that we should look to the Ninth Circuit’s
law.
17
   Although they have not explicitly addressed the issue, other
Circuits have applied their own law when dealing with strikes
from other courts. See, e.g., Hafed v. Fed. Bureau of Prisons,
635 F.3d 1172, 1177-80 (10th Cir. 2011) (using Tenth Circuit
precedent to determine whether cases from courts in the
Seventh Circuit were strikes); Thompson v. Drug Enforcement
Admin., 492 F.3d 428, 431-40 (D.C. Cir. 2007) (considering
cases from courts in the Eighth and Eleventh Circuits without
discussing the precedents of those Circuits).




                                10
enough to convince us to abandon the long-standing principle
that we are bound to follow the precedent of our Court.

                               II.

       Having established that we will follow our case law to
determine strikes under § 1915(g), we now turn to determining
whether Brown has accrued three strikes. To begin, as
Brown’s counsel has conceded, we conclude that Brown I and
Brown II constitute strikes. 18 In Byrd v. Shannon, we
addressed the standard we should use to evaluate whether a
dismissal of a filed complaint counts as a strike for IFP
purposes. 19 We explained that “a strike under § 1915(g) will
accrue only if the entire action or appeal is (1) dismissed
explicitly because it is ‘frivolous,’ ‘malicious,’ or ‘fails to state
a claim’ or (2) dismissed pursuant to a statutory provision or
rule that is limited solely to dismissals for such reasons.” 20
Since Byrd, we have also explained that a dismissal “does not
rise to the level of a strike” unless it is a dismissal with
prejudice. 21

        Brown I and Brown II both meet all of our requirements
for strikes. In Brown I, Brown filed a complaint and a series
of amended complaints against employees at various prisons,

18
   At oral argument, Brown’s counsel explicitly conceded that
Brown I and Brown II qualify as strikes. In addition, Brown
did not argue in his briefs that Brown I and Brown II are not
strikes. Instead, he focused his argument on whether Profitt is
a strike.
19
   715 F.3d 117, 124 (3d Cir. 2013).
20
   Id. at 126.
21
   Millhouse, 866 F.3d at 161.




                                 11
alleging that they had failed to diagnose and treat mental
injuries caused by his post-traumatic stress disorder. 22
Ultimately, the District Court in the Eastern District of
California explicitly dismissed Brown’s entire action for
“failure to state a claim.” 23 Its dismissal was with prejudice. 24
Similarly, in Brown II, Brown, proceeding IFP, 25 filed a Bivens
action against prison officials, which the District Court in the
Eastern District of California dismissed with prejudice for
“failure to state a Bivens claim upon which relief may be
granted.” 26 Accordingly, we conclude that both Brown I and
Brown II qualify as strikes under § 1915(g).

        Given that Brown has two strikes from Brown I and
Brown II, our decision on his IFP motions hinges on whether
Profitt constitutes a third strike. We conclude that it does not.
In Profitt, Brown filed a request to proceed without prepaying
the filing fees to which he attached a complaint. The Central
District of California noted that the complaint was “lodged”
and was “sought to be filed” by Brown. 27 Ultimately, the
District Court denied Brown’s request to proceed without
prepayment of fees using a form entitled “Order Re Leave to
File Action Without Prepayment of Full Filing Fee,” which
was signed by both the Magistrate Judge and the District Judge.

22
   Brown v. United States, No. 1:11-CV-01562-MJS, 2013 WL
2421777, at *1 (E.D. Cal. June 3, 2013).
23
   Id. at *6.
24
   Id.
25
   Brown v. U.S., No. 1:12-CV-00165-AWI-GSA (E.D. Cal.
Mar. 30, 2012) (order granting motion to proceed IFP).
26
   Brown v. U.S., No. 1:12-CV-00165-AWI-GSA, slip op. at 2
(E.D. Cal. Nov. 13, 2014).
27
   Id. 61.




                                12
On the form, the Magistrate Judge briefly explained Brown’s
claim and then stated that Brown had “failed to state a valid
claim in two attempts. This matter will be closed.” 28
Additionally, the Magistrate Judge checked boxes indicating
that Brown’s application was being denied because of “failure
to state a claim,” that “[l]eave to amend would be futile,” and
that the denial might constitute a strike for the purposes of §
1915(g). 29 Thus, the matter was closed, and Brown’s
complaint was never actually filed with the District Court.

       As § 1915(g) explains, a prisoner cannot procced IFP
“if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal” that was dismissed because it was malicious or
frivolous or because it failed to state a claim. 30 We know then
that in order for a dismissal to qualify as a strike, the action
must have been “brought.” Accordingly, the question we must
answer is whether Profitt was an action that was “brought”
even though Brown’s complaint was never filed.

        In Gibbs v. Ryan, we clarified that “[i]n the context of
filing a civil action, ‘bring’ ordinarily refers to the ‘initiation
of legal proceedings in a suit.’” 31 We therefore equated a
complaint being filed with an action being brought, explaining
that “[Gibbs’] complaint was filed, and his action was




28
   Id.
29
   Id.
30
   28 U.S.C. § 1915(g) (emphasis added).
31
    160 F.3d 160, 162 (3d Cir. 1998) (citing Black’s Law
Dictionary 192 (6th ed. 1990)).




                                13
‘brought’ when his motion to proceed in forma pauperis was
granted.” 32

        We have continuously followed this principle, and we
reiterate it now. 33 In order for an action to be “brought” under
§ 1915(g), a litigant’s complaint must be filed with the District
Court. A complaint, however, cannot be filed until the litigant
has paid the filing fees or until his motion to proceed IFP has
been granted. Thus, because Brown’s complaint in Profitt was
never filed, we conclude that Profitt was not an action that was
“brought” under § 1915(g), so it does not constitute a strike.

        We recognize that our conclusion would change if we
applied the Ninth Circuit’s precedent instead of our own. In
O’Neal v. Price, the Ninth Circuit “conclude[d] that a plaintiff
has ‘brought’ an action for the purposes of § 1915(g) when he
submits a complaint and request to proceed [IFP] to the
court.” 34 Under such rule, Profitt would be an action that was
“brought” because Brown submitted both a complaint and a
request to proceed without prepayment of fees to the District
Court. Given that fact, and the fact that the District Court’s
form stated that the case was being dismissed for “failure to
state a claim,” it seems likely that the District Court intended

32
  Id.
33
   See, e.g., Millhouse, 866 F.3d at 158–59 (“[W]e have
indicated that, when a litigant submits a complaint with an IFP
motion, the complaint is duly filed after the motion to proceed
IFP is granted.”); Urrutia, 91 F.3d at 458 n.13 (“[S]ubmitting
an in forma pauperis complaint to the clerk does not result in
commencement of the litigation.”).
34
     531 F.3d 1146, 1152 (9th Cir. 2008).




                                14
Profitt to be a strike. This does not change our analysis,
however. As discussed above, we are bound to follow our
precedent, which dictates that Profitt does not qualify as a
strike. 35

      Because we conclude that Brown has not previously
accrued three strikes under § 1915(g), we will grant his
motions to proceed IFP on appeal.

                             III.

        Before we turn to the merits of Brown’s appeals, we will
take this opportunity to clarify the procedure that district courts
in our Circuit should use to docket a petitioner’s IFP motion
and complaint. Specifically, when a district court receives a
complaint before a petitioner’s motion to proceed IFP has been
granted, the court should indicate on the docket that the
complaint has been “lodged.” Then, if the district court grants
the petitioner’s IFP motion, it should update the docket with a
new entry that indicates that the complaint is “filed.” If the
district court denies the petitioner’s IFP motion, the complaint
should remain “lodged” until the petitioner pays the filing fees.
We believe that this procedure best comports not only with the
statutory text of § 1915, but also with our precedent


35
   Although counsel for the appellees tried to assert at oral
argument that we had adopted the conclusion from O’Neal,
that is not the case. While we have discussed O’Neal’s
holding, we have never stated that we would follow it
ourselves. To the contrary, our precedent directly contradicts
the Ninth Circuit’s policy in O’Neal. See Millhouse, 866 F.3d
at 158-160 (discussing our rule and O’Neal).




                                15
demonstrating that a complaint cannot be filed until a
petitioner’s motion to proceed IFP is granted.

                             IV.

      Finally, we will consider the merits of Brown’s three
appeals. In each case, Brown argues that the District Court
improperly denied his motions to proceed IFP. He is correct.

        To begin, we note that the Government has conceded
that Brown did not have three strikes at the time the District
Court first considered his motion to proceed IFP in
Kemmerer. 36 Specifically, the Government explains that the
District Court granted Brown’s motion (and therefore should
have officially filed his complaint) in August 2014, but Brown
II was not dismissed until November 13, 2014. The District
Court then concluded that Brown II was a strike when it
vacated its grant of Brown’s IFP motion in January 2017.
Although we have not previously pinpointed the time at which
a district court may no longer consider new dismissals to be
strikes, we have addressed the issue in the appellate context.
In Millhouse v. Heath, we explained that we must “look to the
date the notice of appeal is filed in assessing whether a
dismissal counts as a strike. Strikes accrued after this date
simply do not count under § 1915(g).” 37
        We now extend the Millhouse rule to encompass the
situation before us here. We conclude that strikes that accrue
before the filing of a complaint count under § 1915(g), while
strikes that accrue after do not. We believe that this rule makes
sense given the language of § 1915(g) itself. Section 1915(g)

36
     Appellees’ Br. 22.
37
     Millhouse, 866 F.3d at 161.




                                   16
explicitly states that “[i]n no event shall a prisoner bring a civil
action” if he has previously accrued three strikes. 38 This
language makes clear that the critical point from which we
must determine a petitioner’s number of strikes is when the
action is brought—meaning, as we have clarified, when the
complaint is filed. In other words, because we have equated
“bring” with “file a complaint,” § 1915(g) can be read to state
that “[i]n no event shall a prisoner [file a complaint in] a civil
action” if he has previously accrued three strikes.

       Accounting for the rule that only strikes that accrue
before the filing of a complaint count under § 1915(g), we
agree with the Government that Brown II did not qualify as a
strike when the District Court vacated its grant of Brown’s IFP
motion in Kemmerer in January 2017. As discussed above,
Brown’s complaint was filed well before Brown II was
dismissed. Accordingly, when the District Court reconsidered
Brown’s motion, Brown had only accrued one strike—Brown
I. Thus, we will reverse the District Court’s denial of Brown’s
IFP motion and remand Kemmerer for further proceedings.

       We will also reverse the District Court’s denials of
Brown’s motions in Sage and Dees. As set forth, the District
Court denied Brown’s motions because it concluded that he
had accrued three prior strikes in Brown I, Brown II and Profitt.
However, as we have explained, Brown has not accrued three
strikes because Profitt does not qualify as one. We will
therefore reverse the District Court and remand the cases. 39


38
  28 U.S.C. § 1915(g) (emphasis added).
39
  Because we reverse the District Court’s denials based on the
number of strikes Brown has accrued, we need not discuss any




                                17
                          V.

        For the foregoing reasons, we will grant Brown’s
motions to proceed IFP on appeal. We will also reverse the
District Court’s denials of Brown’s IFP motions and remand
all three of Brown’s cases for further proceedings.




of Brown’s arguments regarding the Act’s imminent danger
exception.




                           18
                       Brown v. Sage
               Nos. 17-1222, 17-1527, 17-1714

CHAGARES, Circuit Judge, concurring in part and dissenting
in part.

       My learned colleagues have applied the law of this
Court, but that jurisprudence was superseded by statute over
twenty years ago. Nevertheless, the majority has extended it,
thereby creating a circuit split, mandating adherence to an
inflexible rule that many courts in this circuit have abandoned,
and increasing litigation (and confusion) over what constitutes
a “strike” for purposes of 28 U.S.C. § 1915(g). I write
separately because I believe that the Court should take this case
en banc to align our jurisprudence with the Prison Litigation
Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66
(1996) (the “PLRA”) and with the decisions of our sister
Courts of Appeals. Adherence to our outdated and rigid two-
step procedure — the prism through which courts in this circuit
must now divine whether prior dismissals that occurred both in
and out of this circuit constitute strikes — should be discarded
in favor of the flexible and discretionary approach required by
the PLRA.

       Whether Brown’s complaint and IFP application sent to
the District Court are categorized as filed, brought, or lodged
is somewhat beside the point to a proper analysis under the
PLRA. That is because the PLRA amended 28 U.S.C. § 1915
in 1996 to provide, inter alia:

    Notwithstanding any filing fee, or any portion thereof,
    that may have been paid, the court shall dismiss the
    case at any time if the court determines




                               1
       that—
       (A) the allegation of poverty is untrue, or
       (B) the action or appeal—
              (i) is frivolous or malicious;
              (ii) fails to state a claim on which relief
              may be granted; or
              (iii) seeks monetary relief against a
              defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2). So, under this section, a district court
is authorized to dismiss a case “at any time,” regardless of the
status of a filing fee.

       Our jurisprudence incorrectly, in my view, requires a
rigid two-step process. The first step is focused upon the
resolution of the IFP application. A complaint sent to the court
“cannot be filed until the litigant has paid the filing fees or until
his motion to proceed IFP has been granted.” Maj. Op. 14.
Only after a complaint is filed may the court perform its
screening duty, employing the criteria set forth in § 1915(e)(2).
See Maj. Op. 8. The majority applies our jurisprudence to hold
that because the Proffitt court in California simultaneously
denied Brown’s IFP motion and dismissed his complaint as
frivolous, the case was never filed and, thus, could not be
considered a “strike” under § 1915(g).

       Our jurisprudence and holding are at odds with the
temporal freedom mandated by § 1915(e)(2). Section
1915(e)(2) permits a court to dismiss a case
“[n]otwithstanding” the filing fee matters that we consider in
our step one analysis. Moreover, we disregard the PLRA’s
grant of authority that a court may dismiss a case “at any time.”




                                 2
Under the Court’s view, “at any time” is limited to a time after
the filing fee matters are resolved.

       An analysis of our prior caselaw and the purposes of the
PLRA assist in explaining my position. Under the pre-1996
version of 28 U.S.C. § 1915, our two-step process when
proceeding in cases with an IFP motion was as follows: “the
“court grant[ed] or denie[d] in forma pauperis status based on
economic criteria alone and then, if warranted, dismisse[d] the
[case] as frivolous pursuant to § 1915(d).” Roman v. Jeffes,
904 F.2d 192, 194 n.1 (3d Cir. 1990). Section 1915(d), at that
time, provided that “[t]he court may . . . dismiss the case if the
allegation of poverty is untrue, or if satisfied that the action is
frivolous or malicious.” 28 U.S.C. § 1915(d) (1990).

       Prior to enactment of the PLRA, the federal courts had
become overwhelmed with prisoner litigation. Indeed, by
1995, prisoner lawsuits constituted twenty-five percent of
federal court filings. Roller v. Gunn, 107 F.3d 227, 230 (4th
Cir. 1997). Congress became deeply concerned that a large
volume of frivolous and vexatious prisoner lawsuits both
slowed the judicial process and were unnecessarily costly for
defendants. Through its hearing process, Congress learned of
many colorful instances of such prisoner litigation. See Nussle
v. Willette, 224 F.3d 95, 105 (2d Cir. 2000) (quoting 141 Cong.
Rec. S14413 (daily ed. Sept. 27, 1995) (statement of Sen.
Abraham) (discussing examples of cases such as ones
involving an “‘insufficient storage locker space,’ a defective
haircut by a prison barber, the failure of prison officials to
invite a prisoner to a pizza party for a departing prison
employee, and yes, being served chunky peanut butter instead
of the creamy variety”), rev’d sub nom. Porter v. Nussle, 534
U.S. 516 (2002). As a result, a main purpose of the PLRA was




                                3
“to limit the filing of frivolous and vexatious prisoner lawsuits”
by “curtail[ing] the ability of prisoners to take advantage of the
privilege of filing I.F.P.” Abdul-Akbar v. McKelvie, 239 F.3d
307, 314 (3d Cir. 2001) (en banc). Further, the PLRA was
intended to “preserv[e] resources of both the courts and the
defendants in prisoner litigation.” Byrd v. Shannon, 715 F.3d
117, 125 (3d Cir. 2013).

       One of the important reforms instituted by the PLRA to
require “early judicial screening of prisoner complaints.”
Jones v. Bock, 549 U.S. 199, 202 (2007). See also 141 Cong.
Rec. S14414 (daily ed. Sept. 27, 1995) (statement of Sen. Dole)
(noting that the PLRA “would allow a Federal judge to
immediately dismiss a complaint”). Specifically, § 1915(d)
was re-designated as § 1915(e), the phrase “at any time” was
added, other bases to dismiss were added, and “may dismiss”
was changed to “shall dismiss.” Further, the PLRA added 28
U.S.C. § 1915A, which requires courts to screen a prisoner
complaint for possible dismissal “before docketing, if feasible
or, in any event, as soon as practicable after docketing.” 28
U.S.C. § 1915A(a). And, of course, the PLRA added the so-
called “three strikes” rule in 28 U.S.C. § 1915(g). In so doing,
the PLRA “supplie[s] a powerful economic incentive not to file
frivolous lawsuits or appeals.” Abdul-Akbar, 239 F.3d at 314.

       Shortly after enactment of the PLRA, we considered an
IFP prisoner complaint that a district court dismissed as
frivolous in Urrutia v. Harrisburg Cty. Police Dep’t, 91 F.3d
451 (3d Cir. 1996). The Court determined that it would apply
the older version of § 1915, as that was the version in effect
when the complaint was considered by the district court,
although in dicta, the Court speculated that “[t]here is no
reason to think that the procedure will be any different under




                                4
the new version of § 1915.” Id. at 455 n.4. The Court repeated
its prior two-step process, but it acknowledged: “More
commonly, however, both the filing of the complaint and the
authorization of service of the complaint on the defendants are
postponed while the magistrate judge and/or district judge
consider the § 1915(a) (indigency) and (d) (frivolousness)
issues together.” Id.

        Notwithstanding this acknowledgment in Urrutia and
the advent of the PLRA, the Court today expressly forecloses
the viability of this “common[]” practice in the Third Circuit.
I note that this Court and the district courts in this circuit have
routinely taken the approach mandated by the PLRA without
much fanfare. See, e.g., Parker v. Montgomery Cty. Corr.
Facility, 870 F.3d 144, 147 (3d Cir. 2017) (counting as a strike
a case with an order both granting IFP status and dismissing
the case and noting the “at any time” language in § 1915(e)(2));
Semulka v. Pennsylvania, 515 F. App’x 74, 74 (3d Cir. 2013)
(per curiam) (granting IFP and dismissing complaint as
frivolous in same order and noting that the district court did the
same); Ackerman v. Mental Health Court, No. 2:13-CV-173,
2013 WL 456384 (W.D. Pa. Feb. 6, 2013) (dismissing the
complaint as frivolous and denying IFP in same order);
Jackson v. Brown, No. 11cv0702, 2011 WL 13176162 (W.D.
Pa. Sept. 19, 2011) (dismissing the complaint and denying IFP
application as moot in same order); Cannon v. Sleet, No. 09-
793, 2009 WL 4899235 (D. Del. Dec. 11, 2009) (same);
Salzman v. Bucks Cty. Family Court, No. 07-cv-1682 (E.D.
Pa. May 3, 2007) (dismissing complaint as frivolous and
denying IFP in same order); Ajjahnon v. State, No. 06-cv-




                                5
3696, 2006 WL 2465422 (D.N.J. Aug. 22, 2006) (same). 1
Indeed, at oral argument, the Assistant U.S. Attorney
representing the Government advised the Court that the
District Court for the Middle District of Pennsylvania does not
follow the strict two-step process.

        Our Court should adopt the more flexible analysis
signaled in Urrutia and mandated by the PLRA. I believe that
courts have the discretion to assess the two steps in either order
or even simultaneously. See 10 James W. Moore, Moore’s
Federal Practice § 55.104[1][a] (3d ed. 2018) (noting that “the
court may dismiss the case, either before ruling on or after
granting in forma pauperis status”). Accordingly, as in Proffitt,
a district court could make “the fee assessment and conduct[]
the screening process in the same opinion and order.” McGore
v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). This
approach best captures the letter and intent for the PLRA.
Courts would have the ability, then, to screen complaints “at

1
  The United States District Court for the Middle District of
Pennsylvania in Powell v. Hoover, 956 F. Supp. 564 (M.D. Pa.
1997), addressed the then-new PLRA head-on. The court
observed that the PLRA amended § 1915 to include the “at any
time language.” Id. at 567. That language, the court noted, “is
a reason to think that the procedure will be different under the
new version of § 1915.” Id. In particular, the court posited
that “‘at any time’ would include a time prior to granting the
application to proceed in forma pauperis.’” Id. The court
further posited that under the PLRA, whether a filing fee has
been paid “does not affect the authority of the court to dismiss
the case.” Id. As a result, the court concluded that a court may
now “review the complaint for merit without ruling on the
motion to proceed in forma pauperis.” Id.




                                6
any time,” § 1915(e)(2), and it would allow fulfillment of the
mandate of § 1915A to screen complaints “before docketing”
or as soon practicable thereafter. This approach would also
allow courts “avoid [the] pointless paper shuffling,” Ford v.
Johnson, 362 F.3d 395, 400 (7th Cir. 2004), of the two-step
method and would empower the courts to move early to screen
complaints that should be dismissed to conserve judicial
resources and “conserve the resources of defendants forced to
respond to baseless lawsuits,” Buchheit v. Green, 705 F.3d
1157, 1161 (10th Cir. 2012). This approach would relieve us
from straining to define the word “bring” in § 1915(g), 2 and
would align us with our sister Courts of Appeals. See, e.g.,
Buchheit, 705 F.3d at 1160, 1161 (noting that, although not

2
   The two Courts of Appeals that have addressed what the
PLRA means by brought an action have held brought is “when
a complaint is tendered to the district clerk,” rather than when
it is filed. Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004).
See also O’Neal v. Price, 531 F.3d 1146, 1152 (9th Cir. 2008)
(“[W]e conclude that a plaintiff has ‘brought’ an action for
purposes of § 1915(g) when he submits a complaint and
request to proceed in forma pauperis to the court.”); Vaden v.
Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (adopting
holding in Ford). Today we create a circuit split that I believe
is unnecessary. Even if we were compelled to answer this
question, I believe that the Courts of Appeals for the Seventh
and Ninth Circuits were correct in their interpretation of
brought. In particular, that word “properly focuses attention
on what the prisoner-plaintiff does” to start his or her lawsuit,
as opposed to the “filing” a court employee might undertake.
Vaden, 449 F.3d at 1050. Further, our jurisprudence simply
does not supply a ready definition of brought for purposes of
the PLRA.




                               7
required, “screening might be a good practice and more
efficient” before considering an IFP application, and observing
that “the language of the present rule . . . provides needed
flexibility”); Torres v. O’Quinn, 612 F.3d 237, 249 (4th Cir.
2010) (“[I]n keeping with the sensible practice of many district
courts around the country, the district court in these cases
promptly determined that the complaints failed to state a claim
upon which relief could be granted and dismissed each case
pursuant to 28 U.S.C. § 1915A without bothering to process
Torres’s request for in forma pauperis status.”), abrogated on
other grounds by Bruce v. Samuels, 136 S. Ct. 627 (2016);
O’Neal v. Price, 531 F.3d 1146, 1151-56 (9th Cir. 2008); Ford,
362 F.3d at 399-400 (“A prisoner’s civil action may be
dismissed . . . before any fees have been paid, and thus before
‘filing’ occurs.”); McGore, 114 F.3d at 608 (noting that the
court’s two-step process does not prohibit courts from
simultaneously considering both steps); Leonard v. Lacy, 88
F.3d 181, 185 (2d Cir. 1996) (observing the various practices
among the district courts with regard to docketing and
dismissing of frivolous prisoner IFP actions, which includes
the simultaneous docketing and dismissal of complaints, and
“[a]s to such dismissed complaints, the [IFP] motion is granted
in some courts, and denied in other courts”). 3

3
  Our decision in Byrd recognized that “the PLRA’s purpose is
best served by taking an approach that does not open the door
to more litigation surrounding § 1915(g)” and, in particular,
“more, and perhaps unnecessary, litigation on whether or not a
particular dismissal constitutes a strike.” 715 F.3d at 126. Our
decision does just that and will require courts in this circuit to
discern whether potential strikes based on dismissals outside
this circuit meet our rigid two-step procedural requirements.
This is so despite our bright-line rule set forth in Byrd that a




                                8
        For the foregoing reasons, I concur in part and dissent
in part and urge the Court to consider this matter en banc.




strike occurs, inter alia, when an “entire action or appeal is . . .
dismissed explicitly because it is ‘frivolous,’ ‘malicious,’ or
fails to state a claim.’” Id. See generally Millhouse v. Heath,
866 F.3d 152, 164 (3d Cir. 2017) (recognizing that “we
adopted in Byrd a bright-line rule in deciding what constitutes
a strike.). The California-based district court’s order in Profitt
clearly met this bright line rule, and the majority even noted
the likelihood “that the District Court intended Profitt to be a
strike.” Maj. Op. 15. Nonetheless, Profitt is not considered a
strike under today’s decision.




                                 9
