Keith Thomas v. Eric Holder, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2014 Decided May 6, 2014

No. 12-5228

KEITH THOMAS,

APPELLANT

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL REAL PARTY

IN INTEREST AND ANTHONY HEDGPETH, WARDEN SALINAS

VALLEY STATE PRISON,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00459)

On Motion for Reconsideration

Sat Nam S. Khalsa, appointed by the court, argued the

cause as amicus curiae in support of appellant. With him on

the briefs was Anthony F. Shelley, appointed by the court.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Ronald C. Machen

Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

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Before: TATEL, SRINIVASAN, and WILKINS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge TATEL.

TATEL, Circuit Judge: After Appellant, a state prisoner,

failed to respond to our order to show cause why he should

not be compelled to pay a required filing fee, we dismissed

his appeal for failure to prosecute. Now supported by amicus

counsel, Appellant has moved for reconsideration of our

dismissal, contending that requiring him to pay a filing fee

would unconstitutionally deprive him of his right to access the

courts. Without reaching this constitutional question, we deny

the motion because the claims Appellant raises in his appeal

are devoid of merit and reinstating the appeal would therefore

be a pointless gesture.

I.

Appellant Keith Thomas is an inmate of Salinas Valley

State Prison in California. Acting pro se, he filed a petition

for writ of mandamus in the district court, seeking to compel

Attorney General Eric Holder to reclassify marijuana as a

Controlled Substances Act (CSA) Schedule V controlled

substance. Schedule V encompasses those drugs with a “low

potential for abuse,” a “currently accepted medical use in

treatment,” and little potential for “physical dependence or

psychological dependence.” 21 U.S.C. § 812(b)(5). By

contrast, Schedule I—marijuana’s current classification—is

reserved for drugs with a “high potential for abuse,” “a lack of

accepted safety for use . . . under medical supervision,” and

“no currently accepted medical use in treatment in the United

States.” Id. § 812(b)(1). Alleging that he suffered from

arthritis and osteoarthritis, Thomas claimed that marijuana’s

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Schedule I classification prevented him from obtaining the

drug in order to treat his pain. The district court denied

Thomas’s petition for mandamus, holding that the Attorney

General “has the discretion to reclassify a controlled

substance, and where the action petitioner seeks to compel is

discretionary, he has no clear right to relief and mandamus

therefore is not an appropriate remedy.” Thomas v. Holder,

No. 12-0459, slip op. at 2 (D.D.C. Mar. 26, 2012).

Thomas appealed. As he had before the district court, he

moved to proceed in forma pauperis, or IFP, which would

enable him to pay any filing fees in installments over time or

possibly not at all. See 28 U.S.C. § 1915(b). Under what is

known as the three-strikes provision of the Prison Litigation

Reform Act (PLRA), however, a prisoner may not proceed 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.” Id. § 1915(g). Thomas has three strikes under the

PLRA. See Thomas v. Bush, No. 06-5015, 2006 U.S. App.

LEXIS 22767, at 1–2 (D.C. Cir. Sept. 6, 2006). We therefore

issued an order requiring Thomas to show cause within thirty

days “why he should not be required to pay the full appellate

filing fee before the court will consider his appeal.” When

Thomas failed to respond, we dismissed the case for lack of

prosecution. See D.C. Circuit Rule 38 (providing that the

court may impose “[s]anctions” such as “dismissal for failure

to prosecute”).

Subsequently, Thomas filed two motions that we have

construed as requests for reconsideration of our dismissal of

his appeal. See Thomas v. Holder, No. 12-5228 (D.C. Cir.

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Apr. 15, 2013). In these filings, he claimed that he had been

“in the hospital for [a] mental health crisis” and had been put

on “psychotropic medication.” He also appeared to contend

that his inability to pay the required filing fee had prevented

him from pursuing his appeal, asserting that he had “no way

to send a forma pauperis to the court to pay for the filing fee.”

In response to these filings, we appointed amicus counsel

“to present arguments in favor of appellant’s position” and

ordered both amicus and the government to brief “whether the

‘three-strikes provision’ of the [PLRA] unconstitutionally

denies indigent prisoners access to the courts,” as well as any

other issues they saw fit to address. Id. They have ably

performed that task.

II.

Amicus and the government dispute several issues,

among them whether Thomas would have standing to press

the claims he raised in his appeal were we to reinstate it, and

whether depriving him of the ability to proceed in forma

pauperis would violate the Due Process or Equal Protection

Clauses of the Constitution. But we have no need to consider

these questions because we agree with the government that

there is an independent reason to deny Thomas’s motion for

reconsideration: his underlying claims are wholly without

merit.

We begin with the principles—or more accurately, the

lack of principles—that govern this court’s disposition of

motions for reconsideration. No Federal or Circuit Rule

expressly gives movants like Thomas any particular

entitlement to have their appeals reinstated. Although D.C.

Circuit Rule 27(e)(2) provides that a party “adversely affected

by an order of the clerk disposing of a [procedural] motion

may move for reconsideration thereof within 10 days,” it says

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nothing about the circumstances in which such a motion will

be granted. According to the government, the situation we

face here is analogous to that confronting a district court

considering a motion for relief from judgment pursuant to

Federal Rule of Civil Procedure 60(b). In that context, it is

well-established that movants must show that their underlying

claims have at least some merit. They need not meet a

particularly “high bar” to satisfy this threshold requirement,

but they must provide at least “a hint of a suggestion” that

they might prevail. Marino v. DEA, 685 F.3d 1076, 1080

(D.C. Cir. 2012) (internal quotation marks omitted). This is so

even if the claims were not originally resolved on the merits

but were instead dismissed for failure to prosecute, as they

were here. In Lepkowsi v. Department of the Treasury, 804

F.2d 1310 (D.C. Cir. 1986), for example, the district court had

dismissed the case after the plaintiff failed to respond to the

defendant’s motion to dismiss, and then later denied the

plaintiff’s Rule 60(b) motion, which had argued that this

failure should be deemed excusable neglect. Id. at 1313. We

affirmed, holding in part that “motions for relief under Rule

60(b) are not to be granted unless the movant can demonstrate

a meritorious claim or defense; we cannot escape the fact that

the complaint and the proposed opposition were insufficient

as a matter of law.” Id. at 1314; see also id. at 1321

(Robinson, J., concurring) (parting ways with the majority as

to whether there had been excusable neglect, but agreeing that

denial should be affirmed because the claim “ha[d] little or no

chance of ultimately surviving”). Likewise, in Murray v.

District of Columbia, 52 F.3d 353 (D.C. Cir. 1995), the

district court had dismissed the case after the plaintiffs failed

to oppose a motion to dismiss, then denied their motion for

reconsideration. Id. at 355. Affirming, we concluded that we

had no need to consider the plaintiffs’ argument that their

attorneys never received notice of the motion to dismiss, as

plaintiffs had failed to satisfy the “threshold requirement” of

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showing that there was some “reason to believe that vacating

the judgment will not be an empty exercise or futile gesture.”

Id.; see also, e.g., Norman v. United States, 467 F.3d 773, 775

(D.C. Cir. 2006) (affirming denial of reconsideration of

dismissal for failure to prosecute because there was no

“underlying meritorious claim”) (internal quotation marks

omitted).

We believe the same prerequisite should operate in this

case. The requirement that parties seeking Rule 60(b) relief

show some prospect of succeeding on the merits flows from

the basic principle that courts should revive previously-

dismissed claims only if they have some reason to believe that

doing so will not ultimately waste judicial resources. See

Murray, 52 F.3d at 355. This principle holds true here:

reviving Thomas’s appeal will constitute an “empty exercise

or futile gesture,” id., unless Thomas has some possibility of

prevailing.

Indeed, we see two especially good reasons to condition

the grant of Thomas’s motion for reconsideration on his

demonstrating a chance of succeeding on the merits. First,

Thomas claims that his appeal should be reinstated because

the PLRA’s three-strikes provision is unconstitutional as

applied to him. For this court to reach out and decide this

difficult and important question simply to reinstate a pointless

appeal would violate the norm of constitutional avoidance to

which we generally adhere. See Kalka v. Hawk, 215 F.3d 90,

97 (D.C. Cir. 2000) (“Federal courts should not decide

constitutional questions unless it is necessary to do so.”).

Second, the PLRA provides that a court “shall dismiss” an

IFP litigant’s case if the “appeal . . . is frivolous or malicious

. . . [or] fails to state a claim on which relief may be granted.”

28 U.S.C. § 1915(e)(2). Thus, even were we to grant Thomas

IFP status and reinstate his appeal, we would then have to

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promptly dismiss the case if his claims lack merit. What could

be a more “futile gesture” than reinstating an appeal only to

then immediately dismiss it?

Amicus concedes that we must deny the motion for

reconsideration if Thomas’s underlying claims lack merit, but

insists that his claims actually have merit. We disagree.

Recall that Thomas seeks to compel the Attorney General

to reclassify marijuana from Schedule I to Schedule V,

arguing primarily that the CSA requires such action because

of the drug’s accepted medical uses. Significantly, however,

he seeks such relief by writ of mandamus, “a drastic remedy”

reserved for “extraordinary situations.” In re Papandreou,

139 F.3d 247, 250 (D.C. Cir. 1998) (internal quotation marks

omitted). Mandamus may be granted only if “(1) the plaintiff

has a clear right to relief; (2) the defendant has a clear duty to

act; and (3) there is no other adequate remedy available to the

plaintiff.” Council of & for the Blind of Delaware County

Valley, Inc. v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983)

(en banc). Mandamus petitioners can satisfy neither of the

first two requirements if the act they seek to compel is

discretionary, as government officials have no clear duty to

perform such acts and petitioners have no clear right to

compel them to do so. See Heckler v. Ringer, 466 U.S. 602,

616–17 (1984). Here, as the district court explained, the

Attorney General has at least some discretion in determining

whether and how to classify marijuana. Although, as amicus

emphasizes, the statute does provide that the Attorney

General “shall” ensure that the provisions of the CSA are

applied to the substances as categorized, it also provides that

the Attorney General “may” decide whether to transfer a

particular substance from one classification to another—

precisely the relief Thomas seeks. See 21 U.S.C. § 811.

Indeed, confirming that the Attorney General could not

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possibly have a clear duty to act as Thomas demands, this

court held a little more than a year ago that the agency to

which the Attorney General has delegated his CSA

reclassification authority engaged in no abuse of discretion

when it refused to reclassify marijuana as appropriate for

medical use. See American for Safe Access v. DEA, 706 F.3d

438, 449–52 (D.C. Cir. 2013). To the extent Thomas also

contends that mandamus is warranted because the Attorney

General has, in violation of the Eighth Amendment, acted

with “deliberate indifference” to Thomas’s suffering, see

Estelle v. Gamble, 429 U.S. 97, 104 (1976), this claim also

necessarily fails. If the Attorney General could properly

conclude that marijuana is not appropriate for medical use, he

certainly has no clear duty to see that it is provided to Thomas

specifically.

Because Thomas has failed to provide even a “hint of a

suggestion” that he might succeed, Marino, 685 F.3d at 1080,

we see no reason to reinstate his appeal. Accordingly, his

motion for reconsideration is denied.

So ordered.

TATEL, Circuit Judge, concurring: Having written the

court’s opinion, I obviously agree that we have no need to

assess the constitutionality of the Prison Litigation Reform

Act’s “three-strikes” provision. But because at our direction

court-appointed amicus and the government have fully briefed

that issue, and because this court, though regularly applying

the three-strikes provision, has yet to fully examine its

constitutionality, I write separately to explain my own doubts

on that question.

A bit of background is in order. When Congress enacted

the Prison Litigation Reform Act (PLRA) in 1996, it vastly

changed the scope of in forma pauperis (IFP) status for both

state and federal prisoners seeking to bring claims in federal

court. Pursuant to section 1915(b), prisoners granted leave to

proceed IFP are, unlike non-prisoner IFP litigants, still

generally required to pay filing fees. The statute, however,

allows them to pay the fees in installments over time—

potentially over a very long period of time. See 28 U.S.C.

§ 1915(b)(1)–(2). And for prisoners unable to pay even these

partial installments, the statute includes a “safety valve”

provision: “In no event shall a prisoner be prohibited from

bringing a civil action or appealing a civil or criminal

judgment for the reason that the prisoner has no assets and no

means by which to pay the initial partial fee.” Id.

§ 1915(b)(4).

The PLRA’s three-strikes provision, section 1915(g),

imposes more onerous burdens on those prisoners who have

“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.” Id. § 1915(g). Unless such prisoners file a

habeas petition attacking the fact or duration of their

confinement—which is not a “civil action” to which the

PLRA applies, see Blair-Bey v. Quick, 151 F.3d 1036, 1039–

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42 (D.C. Cir. 1998)—or allege that they are in “imminent

danger of serious physical injury,” they are denied IFP status

altogether. 28 U.S.C. § 1915(g). The statute contains no safety

valve for such prisoners.

The three-strikes provision implicates two interrelated

lines of constitutional decisions. In the first, the Supreme

Court has held that filing and similar fees must be waived for

indigent litigants who raise certain types of claims. In the

foundational case of Griffin v. Illinois, 351 U.S. 12 (1956), a

four-Justice plurality held that a state violated both due

process and equal protection by requiring indigent convicted

defendants to pay a fee for the transcripts needed to appeal

their convictions. See id. at 15, 18–19 (plurality opinion).

Because criminal defendants have no constitutional right to

appeal their convictions in the first place, the decision appears

to have been grounded primarily in equal protection

principles: if a state affords some defendants a right to appeal

it must afford all defendants that same right. See M.L.B. v.

S.L.J., 519 U.S. 102, 111, 120 (1996) (“‘[M]ost decisions in

this area,’ we have recognized, ‘rest on an equal protection

framework,’ . . . for . . . due process does not independently

require that the State provide a right to appeal.” (internal

citations and alterations omitted) (quoting Bearden v.

Georgia, 461 U.S. 660, 665 (1983)); see also Griffin, 351

U.S. at 21–23 (Frankfurter, J., concurring in the judgment)

(relying principally on the Equal Protection Clause). The

Court has since extended these same principles to habeas

petitions, see Smith v. Bennett, 365 U.S. 708, 709 (1961) (“to

interpose any financial consideration between an indigent

prisoner of the State and his exercise of a state right to sue for

his liberty is to deny that prisoner the equal protection of the

laws”), as well as to litigation involving certain fundamental

interests, such as obtaining a divorce, see Boddie v.

Connecticut, 401 U.S. 371, 374 (1971), or appealing the

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termination of parental rights, see M.L.B., 519 U.S. at 123.

But the Court has declined to hold that the Constitution

requires the waiver of fees when indigent litigants seek to

vindicate less fundamental interests, such as securing a

discharge in bankruptcy, see United States v. Kras, 409 U.S.

434, 445–46 (1973), or appealing a denial of welfare benefits,

see Ortwein v. Schwab, 410 U.S. 656, 659–60 (1973) (per

curiam).

In the second line of cases, the Court has addressed the

rights of prisoners to access the courts. Griffin and Smith—

which, again, struck down fees imposed on defendants

challenging their convictions on direct appeal and habeas,

respectively—are among the decisions that first established

this right of access. See Lewis v. Casey, 518 U.S. 343, 354

(1996). But fees are hardly the only barriers that stand

between prisoners and the courts, and the Supreme Court has

held that the right of access also includes the right to

“adequate law libraries or adequate assistance from persons

trained in the law.” Bounds v. Smith, 430 U.S. 817, 828

(1977). The Court has also made clear that prisoners’ right of

access extends beyond litigation attacking their convictions

and sentences. In Wolff v. McDonnell, 418 U.S. 539 (1974),

the Court, perceiving in this regard “no reasonable distinction

between” habeas and civil rights actions, id. at 580, held that

the right encompasses prisoner litigation seeking to vindicate

“basic constitutional rights,” id. at 579. Thus, although the

Constitution “does not guarantee inmates the wherewithal to

transform themselves into litigating engines capable of filing

everything from shareholder derivative actions to slip-and-fall

claims,” it does require that inmates be provided “[t]he tools”

they “need in order to attack their sentences, directly or

collaterally, and in order to challenge the conditions of their

confinement.” Lewis, 518 U.S. at 355. Moreover, to trigger

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the right of access, these claims must qualify as nonfrivolous.

See id. at 352 n.2, 353 n.3.

This court applied these constitutional principles in In re

Green, 669 F.2d 779 (D.C. Cir. 1981), a case involving an

indigent prisoner categorically denied IFP status. The plaintiff

in Green had filed an incredible number of frivolous lawsuits,

apparently trying to “deliberately flood[] the courts with his

complaints and petitions . . . in a vain attempt to gain his

release from prison.” Id. at 782. The district court responded

by issuing an order providing that the prisoner could file an

action in this district only if he first paid all filing fees upfront

and made a deposit of $100 as security for costs. Id. at 784.

We vacated this order for two separate and independent

reasons. First, in prospectively denying IFP status in all future

cases, the order violated section 1915(a) of the IFP statute,

which, we held, required that a district court exercise its

discretion to determine whether to grant leave to proceed IFP

in each case. Id. at 786. Second, and of more relevance here,

we held that the order violated Green’s right of “meaningful

access to the courts” because it “erect[ed] a potentially

prohibitive financial barrier that encompasses all civil suits

including habeas corpus petitions as well as those involving a

fundamental constitutional right.” Id. We explained: “because

Green cannot comply with the court’s order if he is without

the necessary funds, the order effectively denies Green any

and all access to the district court.” Id. And because “[e]ven a

new, nonfrivolous claim submitted in good faith would not be

heard if Green could not meet the filing fee and cash deposit,”

the district court’s order was unconstitutional. Id.

Of course, nowhere in Green did we hold that any

requirement that a prisoner pay filing fees will necessarily be

unconstitutional. Indeed, in Tucker v. Branker, 142 F.3d 1294

(D.C. Cir. 1998), we distinguished Green and upheld the

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constitutionality of those PLRA provisions that require non-

three-strikes prisoners to generally pay some filing fees.

Characterizing Green as a case with “extreme” facts, we

explained that the fees the PLRA imposes on IFP prisoners

are “much less burdensome.” Id. at 1299. In particular, we

emphasized that because the statute allows payment by

installments, the required fees “never exact[] more than 20%

of an indigent prisoner’s assets or income.” Id. at 1298. And

given the safety valve provision, “even a destitute prisoner

may file his suit if he wants to, without having to pay any

initial fee.” Id. at 1297–98.

I struggle to see how we could similarly distinguish

Green in a case in which an indigent prisoner challenges the

PLRA’s three-strikes provision. The conditions the three-

strikes provision imposes mirror the “extreme” facts of the

order struck down in Green. Like the order in Green, not only

does the three-strikes provision require prisoners to pay all

filing fees upfront, but it applies even to claims involving

fundamental constitutional rights. If prisoners have no ability

to pay these fees, then, as in Green, they face a “total barrier”

to bringing their claims—again, three-strikers enjoy no

statutory safety valve. Green, 669 F.2d at 785. The financial

conditions at issue in Green differ from those imposed by the

three-strikes provision in only one respect: the Green

petitioner was also required to pay a $100 deposit. This

difference, however, is constitutionally insignificant. Green

was deprived of his right to meaningful access to the courts

not because of the additional $100 deposit, but simply

because “if he [was] without the necessary funds,” whatever

that sum might be, he would be completely unable to file a

claim. Id. at 786. The same is true of prisoners subject to the

PLRA’s three-strikes provision.

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The government attempts to distinguish Green in several

ways. First, it points out that “Green predates the passage of

the PLRA by approximately fifteen years.” Appellees’ Br. 43.

But clearly, the fact that a statute postdates a constitutional

decision cannot somehow render that statute constitutional.

Otherwise, freedom of choice might have been constitutional

just because it emerged following Brown v. Board of

Education, 347 U.S. 483 (1954). But see Green v. County

School Board of New Kent County, 391 U.S. 430 (1968).

The government further contends that the three-strikes

provision, unlike the In re Green order, “only blocks access to

the court . . . without prepayment of fees for claims not

brought by prisoners in imminent danger of serious bodily

injury.” Appellees’ Br. 43. To be sure, the three-strikes

provision’s imminent danger exception may permit prisoners

to bring some of the claims they have a constitutional right to

bring. But what about prisoners advancing constitutional

claims that involve no imminent danger of serious bodily

injury, such as free speech, religious liberty, or right to refuse

medical treatment claims? The right to meaningful access to

the courts extends as well to these sorts of claims that seek to

vindicate “fundamental constitutional rights.” Lewis, 518 U.S.

at 351 (internal quotation marks omitted); Wolff, 418 U.S. at

579. The fatal flaw in the Green order was that it would have

prevented the prisoner from filing claims that he had a

constitutional right to access the courts in order to file. See

Green, 669 F.2d at 786. The three-strikes provision suffers

from the very same deficiency.

The government also repeatedly asserts that IFP status is

a “privilege” and not a “right.” E.g., Appellees’ Br. 25. As

support for this proposition, it relies primarily on In re

Sindram, 498 U.S. 177 (1991). In that case, the Supreme

Court, reasoning that it has “a duty to deny in forma pauperis

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status to those individuals who have abused the system,”

ordered that an especially abusive litigant be denied IFP status

in “all future petitions for extraordinary relief.” Id. at 180. As

we have since held, Sindram and cases like it overruled

Green’s statutory holding that section 1915(a) prohibits a

court from imposing “prospective denials of IFP status.” Hurt

v. SSA, 544 F.3d 308, 310 (D.C. Cir. 2008). But the Supreme

Court’s order in Sindram, like other orders the Court imposed

in similar cases, see In re Anderson, 511 U.S. 364, 365

(1994), was limited, applying only to requests for

extraordinary relief from the Court itself, thus closing just one

of the litigant’s potential avenues of access to that or any

court. Sindram therefore has little bearing on Green’s separate

constitutional holding, which remains binding in this Circuit.

See Aamer v. Obama, 742 F.3d 1023, 1033 (D.C. Cir. 2014)

(“[A]lternative grounds for a decision are nonetheless

precedential.”). The same goes for our own decisions denying

litigants leave to proceed IFP in circumstances that did not

require us to consider whether denial would prevent a

prisoner from raising a nonfrivolous constitutional claim. See

Mitchell v. Federal Bureau of Prisons, 587 F.3d 415, 417

(D.C. Cir. 2009) (denying application to proceed IFP of

prisoner who complained of improper notation in

administrative files and made vague claims regarding need for

medical treatment); Hurt, 544 F.3d at 310 (prospectively

denying “non-incarcerated litigant[]” privilege of proceeding

IFP); Butler v. U.S. Department of Justice, 492 F.3d 440,

445–47 (D.C. Cir. 2007) (denying prisoner leave to proceed

IFP in advancing a Freedom of Information Act claim). Thus,

although IFP status may well be a “privilege” for most

litigants raising most types of claims, the Supreme Court has

unequivocally held that waiver of filing fees is in some cases

constitutionally required, see, e.g., Smith, 365 U.S. at 712;

Griffin, 351 U.S. at 18–19, and our decision in Green makes

clear that prisoners have a right to a reduction in fees if

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necessary to enable them to vindicate fundamental

constitutional rights, see Green, 669 F.2d at 786.

Consistent with the foregoing, several Courts of Appeals

have left open the possibility that a prisoner might bring a

successful as-applied challenge to the PLRA’s three-strikes

provision. For example, although the Eleventh Circuit

rejected a claim that the three-strikes provision impeded the

right to access the courts, it did so only after observing that

the plaintiff’s “well-pled allegations . . . plainly advance no

cognizable fundamental interest.” Rivera v. Allin, 144 F.3d

719, 724 (11th Cir. 1998). Likewise, the Ninth Circuit held

that “where a fundamental right is not at stake, § 1915(g)

does not infringe upon an inmate’s meaningful access to the

courts.” Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir.

1999) (emphasis added); accord White v. State of Colorado,

157 F.3d 1226, 1233–34 (10th Cir. 1998); Carson v. Johnson,

112 F.3d 818, 821 (5th Cir. 1997).

To be sure, other Circuits have held as a categorical

matter that the three-strikes provision does not infringe

prisoners’ right of access to the courts. These decisions rest

on two primary rationales, both of which are foreclosed in this

Circuit by Green and are in any event unconvincing.

First, some courts have reasoned that a three-strikes

litigant may simply find a way to pay the required fees. As the

Seventh Circuit put it, prisoners may pay “using assets on

hand,” “[s]ave up in advance,” “[b]orrow the filing fee from

friends or relatives,” or “[b]orrow the filing fee from a

lawyer.” Lewis v. Sullivan, 279 F.3d 526, 530 (7th Cir. 2002);

accord Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir.

2001). These ways of cobbling together filing fees were,

however, presumably equally available to the petitioner in

Green, and we nonetheless held that the financial burden

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imposed by the district court’s order—again, essentially the

same as that imposed by the three-strikes provision—

effectively deprived him of access to the courts. See Green,

669 F.2d at 786. In so doing, we adhered to the logic the

Supreme Court has applied in holding that even minimal fees

must sometimes be waived, logic that I believe better reflects

the reality prisoners face. As the Court explained in Smith,

“While $4 is, as the State says, an ‘extremely nominal’ sum, if

one does not have it and is unable to get it the fee might as

well be $400.” 365 U.S. at 712.

Second, other courts have held that the three-strikes

provision does not deny indigent prisoners access to the

courts because such prisoners may simply “[s]ue in state

rather than federal court.” Lewis, 279 F.3d at 530; accord

Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 (4th Cir. 2001)

(en banc); Wilson v. Yaklich, 148 F.3d 596, 605 (6th Cir.

1998). But prisoners may be unable to bring some claims in

state court. See Richard S. Arnold, The Power of State Courts

to Enjoin Federal Officers, 73 Yale L.J. 1385 (1964)

(discussing limits on state courts’ ability to entertain claims

against federal officials). And in any event, the plaintiff in

Green was also capable of filing claims in state court, as he in

fact had. See Green, 669 F.2d at 781. Although we never said

so expressly, our conclusion that the Green petitioner had

been deprived of his right to meaningful access likely

reflected, in part, our application of the equal protection

principles that underlie that right: Green was entitled to

litigate his claims in this court because other litigants may do

so. Such reasoning would echo the Supreme Court’s rejection

of the argument that a state could impose filing fees on

indigent habeas petitioners because they could simply seek

the writ in a federal court. “But even though this be true,” the

Court declared, “it would ill-behoove this great State [(Iowa)],

whose devotion to the equality of rights is indelibly stamped

10

upon its history, to say to its indigent prisoners seeking to

redress what they believe to be the State’s wrongs: ‘Go to the

federal court.’” Smith, 365 U.S. at 713.

For these reasons, I have grave doubts that the PLRA’s

three-strikes provision may be constitutionally applied to

indigent prisoners who seek access to the courts in order to

bring claims involving fundamental constitutional rights. In

the appropriate case, this court should address this unsettled

issue. In so suggesting, I fully understand that Congress was

responding to a very real problem when it enacted the PLRA.

It is undoubtedly true that much prisoner litigation is not only

frivolous and abusive, but also imposes substantial costs on

the federal courts. That said, it is also undoubtedly true that

some prisoners have legitimate constitutional claims. See,

e.g., Brown v. Plata, 131 S. Ct. 1910 (2011) (upholding order

requiring California to reduce prison overcrowding that had

produced pervasive constitutional violations). So while

faithfully honoring Congress’s goal of reducing abusive

litigation, the federal courts remain constitutionally obligated

to hear such claims, for “[o]nly by zealously guarding the

rights of the most humble, the most unorthodox and the most

despised among us can freedom flourish and endure in our

land.” Bridges v. Wixon, 326 U.S. 135, 166 (1945).