Haddrick Byrd v. Robert Shannon

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 11-1744
______

HADDRICK BYRD,

Appellant

v.

ROBERT SHANNON, Superintendent SCI-Frackville;
V. STANISHEFSKI, Corrections Health
Care Administrator SCI-Frackville;
JACK ROBINSON, Supervising Nurse SCI-Frackville;
H. SPENCER, Nurse SCI-Frackville;
DORINA VARNER,
Chief Grievance Officer, Camp Hill, PA
______

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-09-cv-01551)
District Judge: Honorable Sylvia H. Rambo
______

Argued October 3, 2012

Opinion Issued March 11, 2013
 Panel Rehearing Granted April 2, 2013

Before: FUENTES, FISHER and COWEN, Circuit Judges.

(Filed: April 25, 2013)

Haddrick Byrd
Frackville SCI
1111 Altamont Boulevard
Frackville, PA 17931
Pro Se Appellant

Richard H. Frankel
Drexel University
Earle Mack School of Law
3320 Market Street
Philadelphia, PA 19104

Alexandra Scanlon (ARGUED)
Drexel University
Earle Mack School of Law
L324
3320 Market Street
Philadelphia, PA 19104

Rebecca Trela (ARGUED)
Drexel University
Earle Mack School of Law
L324
3320 Market Street
Philadelphia, PA 19104

2
 Amicus Appellant / Court
Appointed Amicus Curiae

Raymond W. Dorian (ARGUED)
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Counsel for Appellees
______

OPINION OF THE COURT
______

FISHER, Circuit Judge.

Haddrick Byrd, a prisoner at SCI-Frackville, filed a
pro se complaint under 42 U.S.C. § 1983 in the Middle
District of Pennsylvania alleging that various Pennsylvania
Department of Corrections (“DOC”) employees violated his
Eighth Amendment rights and were negligent under state law.
Byrd appeals the District Court‟s order granting summary
judgment to DOC employees V. Stanishefski, Jack Robinson,
and H. Spencer on his Eighth Amendment claims. Byrd also
appeals the District Court‟s decision to decline
reconsideration of its order granting a motion to dismiss for
DOC employees Robert Shannon and Dorina Varner. In
addition, Byrd appeals the District Court‟s decision to decline
supplemental jurisdiction over his state law negligence
claims.

3
 Instead of paying a docketing fee on appeal, Byrd filed
a motion to proceed in forma pauperis (“IFP”). We
appointed counsel to act as amicus curiae and address the
issue of whether Byrd was eligible to proceed IFP.
Thereafter, we initially determined that Byrd was ineligible
for IFP status. However, after granting amicus‟s petition for
panel rehearing, we have decided to grant Byrd‟s request to
proceed IFP. As such, we will reach the merits of Byrd‟s
appeal, and we will affirm the District Court‟s order granting
summary judgment, along with its decision to decline
reconsideration of its previous order, and its decision to
decline supplemental jurisdiction over Byrd‟s state law
claims.

I.

At all times relevant to this appeal, Byrd was an
inmate at SCI-Frackville. Byrd‟s pro se complaint of August
13, 2009 named the following defendants: (1) Robert
Shannon, the Superintendent of SCI-Frackville; (2) V.
Stanishefski, the Corrections Health Care Administrator at
SCI-Frackville; (3) Jack Robinson, the Supervising Nurse at
SCI-Frackville; (4) H. Spencer, a Nurse at SCI-Frackville;
and (5) Dorina Varner, the Chief Grievance Officer for the
DOC. Byrd specifically alleges that these DOC employees
showed deliberate indifference to his serious medical needs
by failing to provide him with prescription eye drops for his
glaucoma, thus depriving him of his Eighth Amendment
rights and committing negligence under state law.

The relevant events began in early 2008. On January
4, 2008, Byrd indicated to Spencer that he was experiencing

4
delays in receiving his prescription eye drops, Timolol and
Travatan. On February 7, 2008, Byrd informed Shannon that
he was still experiencing delays in receiving his eye drops.
Byrd‟s medical records indicate that he was given one
month‟s supply of Timolol on both January 4, 2008 and
February 8, 2008, and that he was given one month‟s supply
of Travatan on both January 9, 2008 and February 6, 2008.
After receiving one month‟s supply of Travatan on March 3,
2008, Byrd wrote to Stanishefski about the delays. On March
6, 2008, Robinson responded on behalf of Stanishefski as
follows:

“We can not give you the eye drops if the
pharmacy does not send them to us. Also you
were on the call out on 3/5/08 and did not show
up for your drops. You are now on the call out
for 3/9/08.”

Supp. App. at 33.

Byrd was subsequently given one month‟s supply of
both Timolol and Travatan on the following dates over the
next five months: April 3, May 1, May 29, June 25, and July
24. The prescription for Byrd‟s eye drops expired on July 31,
2008. Byrd did not notify Stanishefski regarding the
expiration of his prescription until September 16, 2008. The
prescription was renewed on September 22, 2008, and Byrd
was given one month‟s supply of Timolol and Travatan the
next day. However, Byrd experienced further delays. On
October 29, 2008, Byrd wrote to Stanishefski about not being
called out to pick up his eye drops earlier that week.
Robinson responded on behalf of Stanishefski as follows:

5
 “Medical does not give you them. We can only
give them to you when the pharmacy ships
them to us. I will check what the problem is so
to try and avoid this in the future.”

Supp. App. at 33.

Byrd, on November 3, 2008, filed a grievance
regarding the delays. The grievance named Shannon,
Robinson, Stanishefski, and Varner, but did not name
Spencer. Robinson responded on behalf of Stanishefski as
follows:

“This a summary of my findings regarding your
grievance #248753. Your concern is you did
not receive your eye drops for glaucoma. A
review of your medical record reveals your eye
drop medication prescription expired on July
31, 200[8]. You participate in the self-
medication program. The self-medication
permits you to be responsible for your health
care needs. You never attempted to access sick
call when you knew the eye drops had expired.
In addition you were also seen by the
optometrist three times since July 2008 and
never requested eye drops from him. You have
an eye condition that will require eye drop
medication for the rest of your life. I strongly
encourage you to be an active participant in
your care. This grievance including monetary
requests is denied.”

6
Supp. App. at 34.

Byrd was subsequently given his eye drops on the
following dates in 2008: November 5 (Timolol), November 8
(Travatan), December 2 (both), and December 31 (both).
Byrd was seen by an optometrist on the following dates in
2008: March 19, April 16, July 9, October 1, October 29,
November 19, and December 8.

Byrd filed a complaint in the District Court on August
13, 2009. He was granted IFP status on September 9, 2009.
The District Court, on February 22, 2010, granted defendants‟
motion to dismiss in part, dismissing Shannon and Varner due
to their lack of involvement in Byrd‟s medical care. On
February 28, 2011, the District Court granted the remaining
defendants‟ motion for summary judgment. The District
Court specifically held that Byrd failed to exhaust his
administrative remedies against Spencer and that Stanishefski
and Robinson were not deliberately indifferent to Byrd‟s
serious medical needs. The District Court declined to
exercise supplemental jurisdiction over Byrd‟s remaining
state law negligence claims.1

On April 5, 2011, Byrd filed a motion to proceed IFP
on appeal. That same day, the Clerk‟s Office notified Byrd
that he had “three strikes” under 28 U.S.C. § 1915(g) and had

1
The District Court adopted the report and
recommendation of the Magistrate Judge in granting both the
motion to dismiss (in part) and the motion for summary
judgment.

7
to file a motion showing that he was in imminent danger of
serious physical injury in order to be eligible for IFP status.
Byrd‟s three potential strikes included two actions that were
clearly dismissed for failure to state a claim: (1) Byrd v.
Parris, No. 99-cv-00769 (E.D. Pa. Oct. 15, 1999) and
(2) Byrd v. City of Philadelphia, No. 06-cv-01957 (E.D. Pa.
Aug. 10, 2006). The other potential strike, Byrd v. Gillis,
C.A. No. 01-3868 (3d Cir. July 30, 2002), was an appeal that
was dismissed by this Court under 28 U.S.C. § 1915(e)(2)(B)
because it was “without merit.” In response to the
notification by the Clerk‟s Office, Byrd did not file a motion
alleging imminent danger; instead, he submitted a response
on April 19, 2011, arguing that the Clerk‟s Office made a
mistake in determining that he had three strikes. Byrd noted
that, although he brought two prior actions that were
dismissed for failure to state a claim, he did not proceed IFP
in those actions.

In the January 12, 2012 order appointing amicus
curiae, this Court instructed amicus to address whether
dismissals of non-IFP actions and appeals can count as strikes
under § 1915(g) or whether only IFP actions and appeals can
count as strikes. The Court also stated that “[a]micus counsel
may wish to address the relevance, if any, of the fact that 28
U.S.C. section 1915(e) and section 1915(g) use similar
phrasing . . . that varies slightly from the language of Fed. R.
Civ. P. 12(b)(6).”

On February 28, 2012, amicus requested to expand the
scope of its appointment. Specifically, amicus sought leave
to address whether this Court‟s dismissal of one of Byrd‟s
previous cases, Byrd v. Gillis, C.A. No. 01-3868 (3d Cir. July

8
30, 2002), constituted a strike. On March 8, 2012, this Court
granted in part and denied in part amicus‟s motion to expand
the scope of its representation. The Court permitted amicus
to argue, with respect to Byrd v. Gillis, that “when an action is
dismissed for a reason that is unclear, that dismissal does not
count as a strike.”

On March 11, 2013, this panel denied Byrd‟s motion
to proceed IFP, and thus, did not reach the merits of Byrd‟s
appeal. Amicus petitioned for panel rehearing on March 25,
2013. After granting the petition for panel rehearing on April
2, 2013, we now reconsider our previous decision and reach
the merits of Byrd‟s appeal.

II.

We have jurisdiction over this matter as an appeal of a
final decision of the District Court. 28 U.S.C. § 1291. The
District Court did not address whether Byrd‟s eligibility for
IFP status was foreclosed by the three strikes provision of 28
U.S.C. § 1915(g). We now address the § 1915(g) issue. We
will also reach the merits of Byrd‟s appeal.

III.

A.

In order to determine Byrd‟s IFP eligibility, we must
decide whether “strikes” under 28 U.S.C. § 1915(g) can be
accrued in actions or appeals where the prisoner has prepaid
the filing fee or whether “strikes” can only be accrued in IFP

9
actions or appeals. Section 1915(g), enacted as a part of the
Prison Litigation Reform Act of 1996 (“PLRA”), states:

“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.”

Three of our sister courts of appeals have held that
strikes may be accrued in actions or appeals regardless of
whether the prisoner has prepaid the filing fee or is
proceeding IFP. See Burghart v. Corr. Corp. of Am., 350
Fed. App‟x 278, 279 (10th Cir. 2009); Hyland v. Clinton, 3
Fed. App‟x 478, 479 (6th Cir. 2001); Duvall v. Miller, 122

10
F.3d 489, 490 (7th Cir. 1997). No court of appeals has held
that strikes may only be accrued in IFP actions or appeals.2

This situation presents an issue of statutory
interpretation. Our task is to give effect to the will of
Congress, and where Congress‟s will has been expressed in
language that has a reasonably plain meaning, that language
must ordinarily be regarded as conclusive. Negonsott v.
Samuels, 507 U.S. 99, 104 (1993); see also Caraco Pharm.
Labs., LTD v. Novo Nordisk, 132 S. Ct. 1670, 1680 (2012)
(“We begin where all such inquiries must begin: with the
language of the statute itself.”). If the language of the statute
2
This Court, in appointing amicus, expressed its
understanding that there was a circuit split on this issue
because the U.S. Court of Appeals for the Tenth Circuit had
implied that only IFP actions or appeals could be counted as
strikes under § 1915(g). See Jennings v. Natrona Cnty. Det.
Ctr. Med. Facility, 15 F.3d 775, 780-81 (10th Cir. 1999)
(listing only dismissals under § 1915(e)(2)(B), a provision
that only applies to IFP actions or appeals, as the types of
dismissals that count as strikes). Amicus, in a commendable
act of candor, brought to our attention the fact that the Tenth
Circuit, in subsequent cases, rejected the argument that
§ 1915(g) strikes could only be accrued in IFP actions or
appeals. See Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172,
1177 (10th Cir. 2011) (holding that dismissals under
§ 1915A, a provision that is not limited to IFP actions or
appeals, can count as strikes); Burghart v. Corr. Corp. of Am.,
350 Fed. App‟x 278, 279 (10th Cir. 2009) (explicitly holding
that non-IFP actions or appeals can count as strikes).

11
has a reasonably plain meaning, then our sole function is to
enforce the statute‟s language. United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989).

In determining whether the language of a particular
statutory provision has a plain meaning, we consider the
language in the context of the entire statute. Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997) (stating that statutory
interpretation focuses on “the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole”); see also Abdul-Akbar v.
McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc)
(interpreting one particular section of the PLRA, 28 U.S.C.
§ 1915(g), in the context of the PLRA as a whole). The plain
meaning of statutory language is not conclusive only when
“the literal application of a statute will produce a result
demonstrably at odds with the intentions of the drafters.” Ron
Pair Enters., 489 U.S. at 242.

Statutory purpose and legislative history may be
referenced only if the statutory language is without a plain
meaning, i.e., if the statutory language is ambiguous. In re
Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d Cir. 2010).
Statutory language is ambiguous only where it is “reasonably
susceptible of different interpretations.” Id. (quoting Nat’l
R.R. Passenger Corp. v. Atchinson Topeka & Santa Fe Ry.
Co., 470 U.S. 451, 473 n.27 (1985)).

Here, the statutory language has a reasonably plain
meaning – “an action or appeal” is not limited to an IFP
action or appeal; rather, it refers to both IFP and non-IFP
actions or appeals. The three strikes provision, § 1915(g),

12
does not make an explicit exception for previous actions or
appeals where the prisoner was not granted IFP status. See
Burghart, 350 Fed. App‟x at 279 (“[Plaintiff] argues that
Congress did not intend § 1915(g) to apply to prisoners who
had not filed their earlier cases IFP. However, § 1915(g)
makes no distinction.”); Hyland, 3 Fed. App‟x at 479
(“[Section] 1915(g) does not distinguish between prior in
forma pauperis actions and prior actions in which the fee was
paid.”); Duvall, 122 F.3d at 490 (“[Section 1915(g)] does not
say, „brought an action or appeal in forma pauperis,‟ or
„brought an action or appeal under this section.‟”).

We acknowledge that this Court, in Santana v. United
States, found the phrase “civil actions” in another part of the
PLRA to “lack a plain meaning.” 98 F.3d 752, 755 (3d Cir.
1996) (interpreting 28 U.S.C. § 1915(b) and holding that the
filing fee requirements of the PLRA with regard to “civil
actions” did not apply to IFP habeas corpus petitions and
appeals). This Court‟s analysis in Santana, however, focused
on the unique nature of habeas corpus actions. Id. at 754. In
contrast to habeas corpus actions, standard non-IFP actions
are not, “in effect, hybrid actions whose nature is not
adequately captured by the phrase „civil action.‟” Id. Thus,
Santana does not compel a conclusion that the phrase “an
action or appeal” in § 1915(g) lacks a plain meaning.

The same can be said for Grayson v. Mayview State
Hospital, wherein this Court stated that § 1915(e)(2), which
uses language that closely tracks the three strikes provision of
§ 1915(g), is limited to IFP actions or appeals. 293 F.3d 103,
109 n.10 (3d Cir. 2002) (“Although the language of
§ 1915(e)(2) does not expressly limit the provision‟s reach to

13
in forma pauperis claims, we believe Congress intended it to
be so limited.”). We do not find Grayson to be controlling.
First, the finding in Grayson – that § 1915(e)(2) applies only
to IFP actions or appeals – is dicta; it was not necessary to the
Court‟s holding, which was that the district court was
required to grant leave to amend before dismissing a pro se
inmate‟s action for failure to state a claim. Id. at 114.
Second, the Grayson Court based its finding in part on the
fact that any alternative interpretation of § 1915(e)(2) would
render similar provisions of the PLRA superfluous. Id. at 109
n.10 (citing Benson v. O’Brian, 179 F.3d 1014, 1017 (6th Cir.
1999) (“[I]f all actions, whether pursued in forma pauperis or
not, are to be screened by the district court pursuant to
§ 1915(e)(2), the specific prisoner complaint screening
provision, § 1915A, would be rendered largely
superfluous.”)). In contrast to § 1915(e)(2), if § 1915(g) were
interpreted to encompass non-IFP actions and appeals, no
other provision of the PLRA, including § 1915A, would be
rendered superfluous.

Finally, we acknowledge amicus‟s argument that the
language difference between § 1915(g) and Rule 12(b)(6) of
the Federal Rules of Civil Procedure is instructive as to the
meaning of “an action or appeal.” Section 1915(g), just like
the IFP specific provision, § 1915(e)(2), refers to an action
that “fails to state a claim upon which relief may be granted,”
while Rule 12(b)(6) refers to an action that “fails to state a
claim upon which relief can be granted.” Amicus argues that
this contrast between “may” and “can” indicates that
Congress used “may” in § 1915(g) as a signal to reference
§ 1915(e) dismissals, which occur only in IFP actions and

14
appeals, as opposed to Rule 12(b)(6) dismissals, which occur
in both IFP and non-IFP actions. Although this argument is
of some persuasive effect, it does not render the phrase “an
action or appeal” to be without a plain meaning. The bottom
line remains that Congress could have easily differentiated
between IFP and non-IFP actions or appeals in the language
of § 1915(g), but it did not. If Congress had intended to make
an exception for non-IFP cases in § 1915(g), then it more
likely would have explicitly done so, rather than merely using
the word “may” instead of “can.”

Thus, strikes may be accrued in actions or appeals
regardless of whether the prisoner has prepaid the filing fee or
is proceeding IFP, and Byrd‟s previous non-IFP actions,
which were dismissed for failure to state a claim, count as
strikes for purposes of § 1915(g).

B.

Amicus argues that, even if Byrd‟s non-IFP actions
count as strikes, Byrd still has only two strikes, rather than
three, because this Court‟s dismissal of Byrd‟s appeal in Byrd
v. Gillis, C.A. No. 01-3868 (3d Cir. July 30, 2002) under
§ 1915(e)(2)(B) does not constitute a strike. We agree.

In Byrd v. Gillis, Byrd brought suit in the Middle
District of Pennsylvania against prison officials in their
individual and official capacities for failing to investigate a
false misconduct report against him. No. 01-cv-0576, slip op.
at 1 (M.D. Pa. Sept. 21, 2001). As a result of the misconduct
report, Byrd was placed in the restrictive housing unit for 60
days. Id. at 5. Byrd alleged that he was “subjected to the

15
denial of due process, equal protection under the law, denial
of religious practices, retaliation, malfeasance, non-feasance,
and misfeasance.” Id. at 1. The Magistrate Judge3 granted
the defendants‟ motion for summary judgment and concluded
that, except for Byrd‟s due process claim regarding his
misconduct hearing, Byrd failed to exhaust his administrative
remedies. Id. at 6-12. In regard to Byrd‟s due process claim,
the Magistrate Judge held that Byrd‟s placement in the
restrictive housing unit did not implicate a protected liberty
interest under Sandin v. Conner, 515 U.S. 472, 483-84
(1995). Id. at 14-16. Additionally, in regard to Byrd‟s
official capacity claims, the Magistrate Judge concluded that
the prison officials were immune from suit. Id. at 13-14.
Byrd‟s state law claims were held to be barred under the
Eleventh Amendment. Id.

On appeal, this Court held that the Magistrate Judge
properly granted summary judgment. Byrd v. Gillis, C.A. No.
01-3868, slip op. at 4 (3d Cir. July 3, 2002). The Court
explicitly agreed that Byrd failed to exhaust his
administrative remedies, that the alleged conduct did not
implicate a protected liberty interest, and that the Eleventh
Amendment barred Byrd‟s state law claims. Id. at 3-4. The
Court ultimately dismissed the appeal under § 1915(e)(2)(B)
because it was “without merit.” Id. at 4.

Our Court has not yet stated a preferred approach for
deciding when and whether “unclear” dismissals can be

3
The parties consented to proceed before a Magistrate
Judge pursuant to 28 U.S.C. § 636(c).

16
counted as strikes for purposes of § 1915(g). In doing so
now, we are guided by the driving purpose of the PLRA –
preserving resources of both the courts and the defendants in
prisoner litigation. See Thompson v. Drug Enforcement
Admin., 492 F.3d 428, 438 (D.C. Cir. 2007). This purpose is
served by both (1) identifying and reducing frivolous actions
and appeals by prisoners and (2) reducing litigation on
whether a particular dismissal constitutes a strike.

We agree with the majority of our sister courts of
appeals that § 1915(g) requires that a prisoner‟s entire action
or appeal be dismissed on enumerated grounds in order for
the dismissal to count as a strike. See, e.g., Tolbert v.
Stevenson, 635 F.3d 646, 651 (4th Cir. 2011); Turley v.
Gaetz, 625 F.3d 1005, 1008-09 (7th Cir. 2010); Thompson,
492 F.3d at 432. Building on this point, amicus asserts that
we should adopt a rule preventing a reviewing court from
finding a strike in a prior dismissal if the dismissal does not
explicitly state that the action or appeal was dismissed
entirely for grounds covered by § 1915(g).

Amicus cites a number of cases that provide persuasive
support for the adoption of such of rule. See Haury v.
Lemmon, 656 F.3d 521, 523 (7th Cir. 2011) (holding that a
dismissal for lack of jurisdiction cannot warrant a strike
unless the assertion of jurisdiction is also found to be
frivolous); Tolbert, 635 F.3d at 653 (holding that an entire
action or appeal must be dismissed under § 1915(g)‟s
enumerated grounds for a strike to accrue, and noting that
such an approach avoids a “laborious analysis of procedural
history”); Thompson, 492 F.3d at 438 (adopting a bright-line
rule with respect to actions dismissed for failure to exhaust

17
administrative remedies that prevents a strike from being
accrued for failure to state a claim unless the action was
expressly dismissed for “failure to state a claim” or dismissed
pursuant to Rule 12(b)(6)); Snider v. Melindez, 199 F.3d 108,
115, 115 n.5 (2d Cir. 1999) (stating, in dicta, that a judgment
“should clearly state the reasons for the dismissal, including
whether the dismissal is because the claim is „frivolous,‟
„malicious,‟ or „fails to state a claim‟”).

Also relevant, however, is Hafed v. Federal Bureau of
Prisons, 635 F.3d 1172, 1178 (10th Cir. 2011). There, a
district court dismissed a prisoner‟s complaint under 28
U.S.C. § 1915A(b) without clearly indicating whether it was
relying on § 1915A(b)(1) for frivolousness or § 1915A(b)(2)
for suing an immune defendant – a ground that does not
support the accrual of a strike under § 1915(g). The U.S.
Court of Appeals for the Tenth Circuit approached the issue
of whether to count the dismissal as a strike by stating:

“Our determination that a particular dismissal
constitutes a strike is not formalistic or
mechanical; rather, we must consider the nature
of the dismissal and, if the district court did not
make it clear, whether the dismissal fits within
the language of § 1915(g).”

Id. The Tenth Circuit, in that particular instance, determined
that even though the district court mentioned the defendant‟s
immunity and did not explicitly state that the entire action
was frivolous, “the immunity ground for dismissal was
subsumed in frivolousness.” Id. The Hafed Court thus
counted the dismissal as a strike for purposes of § 1915(g).

18
 The approach taken in Hafed serves the PLRA‟s
driving purpose in that it reduces the likelihood of future
frivolous actions by prisoners. If courts are permitted to
consider the nature of the dismissal and determine whether
the dismissal fits within the language of § 1915(g), then there
is less likelihood that a dismissal intended as a strike will slip
through the cracks created by a categorical rule that bars
courts from undertaking such an examination. However, as
noted by amicus, the Hafed approach also runs counter to the
PLRA‟s goals in that it will inevitably lead to more, and
perhaps unnecessary, litigation on whether or not a particular
dismissal constitutes a strike.

Although we recognize the benefit of the Hafed
approach, we are ultimately persuaded that the PLRA‟s
purpose is best served by taking an approach that does not
open the door to more litigation surrounding § 1915(g).
Thus, we adopt the following rule: 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, including (but not necessarily limited to) 28 U.S.C.
§§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule
12(b)(6) of the Federal Rules of Civil Procedure.

Applying this rule, we must now decide whether the
dismissal of Byrd‟s appeal in Byrd v. Gillis under
§ 1915(e)(2)(B) because it was “without merit” constitutes a
strike. The dismissal is not encompassed by the first category
of our adopted rule. The terms “frivolous,” “malicious,” or
“fails to state a claim” were not used to dismiss the appeal in

19
its entirety. Although we have often associated the term
“without merit” with the term “frivolous,” we cannot say that
these terms have the exact same meaning. Regardless, the
first category of our new rule requires that the terms
“frivolous,” “malicious,” or “fails to state a claim” be
explicitly stated for the dismissal to constitute a strike.

Neither is the dismissal encompassed by the second
category of our adopted rule. Section 1915(e)(2)(B) is not
limited to dismissals that are “frivolous,” “malicious,” or
“fail[] to state a claim.” Section 1915(e)(2)(B) states as
follows:

“[T]he court shall dismiss the case at any time if
the court determines that 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.”

If the Court had indicated more precisely that the
dismissal was based on § 1915(e)(2)(B)(i), then the result of
our analysis would be different. However, by merely
dismissing the appeal generally under § 1915(e)(2)(B), we
cannot determine with certainty that Byrd‟s appeal was
dismissed for reasons warranting a strike under § 1915(g).

In sum, the dismissal of Byrd‟s appeal in Byrd v. Gillis
does not constitute a strike. Byrd has only two strikes under
§ 1915(g) and is eligible to proceed IFP in this appeal. We
will now address the merits of his appeal.

20
 C.4

i.

Byrd asserts that the District Court erred in granting
summary judgment to Spencer based on Byrd‟s failure to
exhaust his administrative remedies by not naming Spencer in
his November 3, 2008 grievance. Under the PLRA, “[n]o
action shall be brought with respect to prison conditions
under section 1983 . . . by a prisoner confined in jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted. 42 U.S.C.
§ 1997e(a). The PLRA itself does not have a “name all
defendants” requirement. Jones v. Bock, 549 U.S. 199, 217
(2007). However, prisoners are required to complete the
administrative review process in accordance with rules that
are defined by the prison grievance process. Id. at 218. The
relevant provision of the prison grievance system at the time
that Byrd filed his grievance in 2008 was DC-ADM 804, Part
VI.A.7, which stated, in pertinent part: “The inmate will

4
We exercise plenary review over a district court‟s
decision to grant summary judgment. Williams v. Beard, 482
F.3d 637, 639 (3d Cir. 2007).

21
identify any person(s) who may have information that could
be helpful in resolving the grievance.”5

Byrd did not identify Spencer in his November 3, 2008
grievance. Additionally, there is no indication that prison
administrators were aware that Spencer was allegedly
involved with the events surrounding the grievance before
Byrd filed suit. The District Court thus properly granted
summary judgment to Spencer.

ii.

Byrd also asserts that the District Court erred in
granting summary judgment to Stanishefski and Robinson on
the basis that the delays in providing eye drops were not the
result of deliberate indifference to a serious medical
condition. The Eighth Amendment prohibits “cruel and
unusual punishments.” The amendment proscribes
punishments that “involve the unnecessary and wanton
infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102
(1976). Deliberate indifference to a prisoner‟s serious
medical needs constitutes an unnecessary and wanton
infliction of pain. Id. at 104.

5
The policies of the Pennsylvania Inmate Grievance
System were amended in 2010. The provision requiring
inmates to identify individuals can now be found at DC-ADM
804, § 1.A.11, which states, in pertinent part: “The inmate
shall identify individuals directly involved in the event(s).”

22
 Although Byrd‟s glaucoma may constitute a serious
medical condition, he has not shown that the delays in
supplying his eye drops were due to deliberate indifference.
Byrd‟s longest period without eye drops occurred after his
prescription expired on July 31, 2008. He did not notify
Stanishefski about the matter until September 16, 2008. After
Byrd notified Stanishefski, the prescription was renewed on
September 22, 2008, and Byrd was given eye drops on
September 23, 2008. Under Byrd‟s self-medication program,
he is responsible for the renewal of his prescriptions, and
thus, he was responsible for this delay. Other delays were
caused by the pharmacy that provided the eye drops.
Therefore, the District Court properly granted summary
judgment to Stanishefski and Robinson.

iii.

Byrd asserts that the District Court failed, in its
summary judgment opinion, to address his claims against
Shannon and Varner – claims that were previously dismissed
under Rule 12(b)(6).6 We construe Byrd‟s assertion as one
faulting the District Court for not reconsidering its earlier
decision to dismiss Shannon and Varner. The Magistrate
Judge‟s report and recommendation, which was adopted by
the District Court, noted that the local rules for the Middle

6
Byrd does not appeal the District Court‟s order
granting the motion to dismiss. Instead, his pro se brief
indicates only that he is appealing “the order granting the
defendants [sic] motion for summary judgment.” Informal
Brief, at 1.

23
District of Pennsylvania require a motion for reconsideration
to be filed within 14 days after the entry concerned. See Byrd
v. Shannon, No. 09-cv-1551, 2010 WL 5889519 at *7 (M.D.
Pa. Nov. 24, 2010) (citing M.D. Pa. LR 7.10).

Byrd did not request that the District Court reconsider
its decision to dismiss Shannon and Varner until he filed his
brief in opposition to the defendants‟ motion for summary
judgment, more than seven months after the District Court
issued its order dismissing Shannon and Varner. The District
Court did not err in declining to reconsider its previous
order.7

iv.

Because we will affirm the District Court‟s order
granting summary judgment, along with its decision to
decline reconsideration of its previous order, we will also
affirm the District Court‟s decision to decline supplemental
jurisdiction over Byrd‟s state law negligence claims. See 28
U.S.C. § 1367(c)(3) (“The district courts may decline to
exercise supplemental jurisdiction . . . [if] the district court
has dismissed all claims over which it has original
jurisdiction.”); United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966) (holding that when federal claims are dismissed
before trial, federal courts should not separately entertain
pendent state claims).

7
Generally, we give deference to a district court‟s
interpretation of its own local rules. See Gov’t of the V.I. v.
Mills, 634 F.3d 746, 750 (3d Cir. 2011).

24
 IV.

Byrd was eligible to proceed IFP in this appeal. We
will affirm the District Court‟s order granting summary
judgment, its decision to decline reconsideration of its
previous order, and its decision to decline supplemental
jurisdiction over Byrd‟s state law claims.8

8
We express gratitude to the director and students of
the Appellate Litigation Clinic at the Earle Mack School of
Law at Drexel University for an excellent presentation of the
issues pertaining to 28 U.S.C. § 1915(g) as court-appointed
amicus curiae.

25