11-276-pr
Mills v. Fischer
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2010
6
7
8 (Submitted: June 15, 2011 Decided: July 14, 2011)
9
10 Docket No. 11-276-pr
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13
14 RICHARD MILLS and ELMER F. MILLS, JR.,
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16 Plaintiffs-Appellants,
17
18 KODEY MILLS,
19
20 Plaintiff,
21
22 - v.-
23
24 BRIAN FISCHER, JOHN B. LEMPKE, FEDORA, Correction Officer,
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26 Defendants-Appellees,
27
28 JANE DOE, Correction Officer,
29
30 Defendant.
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33
34 Before: JACOBS, Chief Judge, WINTER and
35 McLAUGHLIN, Circuit Judges.
36
37 Plaintiff-Appellant Richard Mills, pro se and
38 incarcerated, moves for leave to proceed in forma pauperis
39 and for appointment of counsel in this appeal from an order
1 of the United States District Court for the Western District
2 of New York (Arcara, J.) that dismissed his 42 U.S.C. § 1983
3 complaint. The motions are denied on the ground that Mills
4 has filed three or more frivolous lawsuits. See 28 U.S.C.
5 § 1915(g).
6 Richard Mills, pro se, Romulus,
7 NY.
8
9 Elmer F. Mills, Jr., pro se,
10 Byron, NY.
11
12 Kate H. Nepveu, New York State
13 Office of the Attorney General,
14 Albany, NY, for Defendants-
15 Appellees.
16
17 DENNIS JACOBS, Chief Judge:
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19 Plaintiff-Appellant Richard Mills, pro se and
20 incarcerated, moves for leave to proceed in forma pauperis
21 (“IFP”) and for appointment of counsel in this appeal from
22 an order of the United States District Court for the Western
23 District of New York (Arcara, J.) that dismissed his 42
24 U.S.C. § 1983 complaint.
25 I
26 Under the Prison Litigation Reform Act (“PLRA”), a
27 prisoner who accumulates three “strikes” (dismissed actions
28 that were “frivolous, malicious, or fail[ed] to state a
29 claim”) is barred from bringing additional civil actions or
2
1 appeals in forma pauperis, unless she is “under imminent
2 danger of serious physical injury.” See 28 U.S.C.
3 § 1915(g). Mills’s complaint, which concerns limitations to
4 his visitation rights at the prison, does not allege danger
5 of serious physical injury.
6 Mills has, at a minimum, five strikes: (1) Mills v.
7 Appellate Div. Fourth Dep’t, No. 05-cv-612 (W.D.N.Y. Mar. 7,
8 2006), a complaint dismissed for failing to state a claim
9 and for seeking monetary relief against a defendant who is
10 immune; (2) the subsequent appeal in Appellate Division that
11 was dismissed as lacking an arguable basis in fact and law,1
12 No. 06-1541-pr (2d Cir. Sept. 20, 2006); (3) Mills v.
13 Genesee Cnty., No. 04-cv-989 (W.D.N.Y. Oct. 5, 2005), a
14 complaint dismissed for failing to state a claim and for
15 seeking monetary relief against a defendant who is immune;
16 (4) the subsequent appeal in Genesee County that was
17 dismissed as lacking an arguable basis in fact and law, No.
18 05-6591-pr (2d Cir. Aug. 29, 2006); (5) Mills v. Noonan, No.
19 04-cv-142 (W.D.N.Y. May 10, 2004), a complaint that was
1
“[A]n incarcerated plaintiff incurs two strikes when
a complaint and a subsequent appeal are independently
dismissed for grounds listed in [28 U.S.C.] § 1915(g).”
Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010).
3
1 dismissed for failing to state a claim and for seeking
2 monetary relief against a defendant who is immune.
3 In some instances, Mills’s litigation initiations were
4 dismissed on the ground of judicial immunity. See, e.g.,
5 Noonan, No. 04-cv-142 (W.D.N.Y. May 10, 2004) at 3 (“[The
6 judge] is entitled to absolute judicial immunity with
7 respect to all of the claims alleged and the complaint must
8 be dismissed against him.”). The IFP statute does not
9 explicitly categorize as frivolous a claim dismissed by
10 reason of judicial immunity,2 but we will: Any claim
11 dismissed on the ground of absolute judicial immunity is
12 “frivolous” for purposes of 28 U.S.C. § 1915(g). Mills’s
13 (more than) three strikes therefore disqualify him from IFP
14 status. See id.
15 II
16 Mills’s ineligibility for IFP status precludes him from
17 receiving appointed counsel.3 All the relevant IFP
2
The criteria for accumulating strikes under § 1915(g)
track two of the three grounds upon which “the court shall
dismiss [a] case” if they exist, § 1915(e)(2)(B)(i)-(ii),
but do not include the third ground of “seek[ing] monetary
relief against a defendant who is immune from such relief,”
§ 1915(e)(2)(B)(iii).
3
A district court is empowered only to “request” an
attorney to represent an IFP plaintiff, § 1915(e)(1), but
4
1 provisions, including those concerning “three strikes” and
2 appointment of counsel, are in Section 1915 of Title 28 of
3 the U.S. Code. See 28 U.S.C. § 1915(e)(1), (g). The “three
4 strikes” provision effects disqualification from “bring[ing]
5 a civil action or appeal[ing] a judgment in a civil action
6 or proceeding under this section.” Id. § 1915(g) (emphasis
7 added). It follows that a litigant barred from proceeding
8 under § 1915 is likewise ineligible for the benefits
9 provided therein, such as appointment of counsel. Accord
10 Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011). To
11 hold otherwise would violate the PLRA’s “principal purpose”
12 of “deterring frivolous prisoner lawsuits and appeals.”
13 Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997).
14
15 For the foregoing reasons, Mills’s motion for leave to
16 proceed in forma pauperis and for appointment of counsel is
17 denied. The appeal will be dismissed in 30 days unless
18 Mills pays the applicable filing fees.
case law commonly refers to the arrangement as “appointed”
counsel.
5