Abdul-Akbar v. McKelvie

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

1-29-2001

Abdul-Akbar v. McKelvie

Precedential or Non-Precedential:

Docket 98-7307

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Filed January 29, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-7307

DEBRO S. ABDUL-AKBAR,

Appellant

v.

RODERICK R. McKELVIE, Honorable; JAMES COLLINS;

JAMES D. TYNDALL; EARL MESSICK; TURRIT, Capt.;

MELVIN HENESSEY; MICHAEL DELOY;

JOE JOHNSON, Lt.; STEPHEN H. SMYK

On Appeal from the United States District Court

for the District for Delaware

(D.C. Civ. No. 98-CV-00137)

District Judge: Honorable Roderick R. McKelvie

Submitted Under Third Circuit LAR 34.1(a)

February 18, 2000

Before: BECKER, Chief Judge, ALITO and ALDISERT,

Circuit Judges.

Argued November 1, 2000

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,

SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL,

BARRY, AMBRO, FUENTES and ALDISER T,

Circuit Judges.

(Filed: January 29, 2001)

Jerold S. Solovy, Esq.

Barry Levenstam, Esq. (argued)

Paul M. Smith, Esq.

Jessie K. Liu, Esq.

JENNER & BLOCK

One IBM Plaza

Chicago, IL 60611

ATTORNEYS FOR APPELLANT

Carl Schnee

United States Attorney

Keith M. Rosen (argued)

Assistant United States Attorney

Chase Manhattan Centre

Suite 1100

1201 Market Street

P.O. Box 2046

Wilmington, DE 19899

ATTORNEYS FOR APPELLEE,

Hon. Roderick R. McKelvie

Loren C. Meyers

Chief of Appeals Division

Robert F. Phillips (argued)

Deputy Attorney General

Stuart B. Drowos

Deputy Attorney General

Delaware Department of Justice

820 North French Street

Wilmington, DE 19801

ATTORNEYS FOR APPELLEES,

James Collins; James Tyndall;

Earl Messick; Turrit, Capt.; Melvin

Henessey; Michael Deloy; Joe

Johnson, Lt.; Stephen Smyk

2

D. Michael Fisher

Attorney General

John G. Knorr, III

Chief Deputy Attorney General

Chief, Appellate Litigation Section

Calvin R. Coons

Senior Deputy Attorney General

Office of the Attorney General of

Pennsylvania

15th Floor, Strawberry Square

Harrisburg, PA 17120

ATTORNEYS FOR

COMMONWEALTH OF

PENNSYLVANIA, Amicus Curiae

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The primary issue for decision is whether we should

overrule the holding of Gibbs v. Roman, 116 F.3d 83 (3d

Cir. 1997), interpreting 28 U.S.C. S 1915(g). Under this

statute, popularly known as the "three strikes" rule, a

prisoner may not file a new action or appeal in forma

pauperis ("I.F.P.") if, on thr ee or more prior occasions while

incarcerated or detained, the prisoner has br ought a federal

action or appeal that was dismissed on the gr ounds that it

was frivolous, malicious or fails to state a claim, unless the

prisoner "is under imminent danger of serious physical

injury." We held in Gibbs that"imminent danger" is

measured at the time of the alleged incident, not at the

time the complaint is filed. 116 F.3d at 86. Three of our

sister courts of appeals have since rejected our teachings in

Gibbs, holding instead that the court should assess

"imminent danger" as of the time the prisoner's complaint

is filed and that a prisoner's allegation that he faced danger

in the past is insufficient to allow him to pr oceed I.F.P.

Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999);

Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998);

Banos v. O'Guin, 144 F.3d 883, 884-885 (5th Cir. 1998). We

now abandon the interpretation set forth in Gibbs and

3

adopt that of our sister courts of appeals. W e hold also that

S 1915(g), as so interpreted, is constitutional.

I.

Appellant Debro Siddiq Abdul-Akbar was most r ecently

incarcerated by the Delaware Department of Corrections

from June 10, 1994 through May 15, 1999 on state charges

including robbery, conspiracy, assault and shoplifting.

During the time material to Appellant's underlying

proposed Complaint based on 42 U.S.C. S 1983, he was

incarcerated at the Sussex Correctional Institute in

Georgetown, Delaware. On May 17, 1999, Appellant

reported to a community confinement center , and on May

27, 1999, he was released from the custody of the

Department of Corrections.

Appellant has filed at least 180 civil rights or habeas

corpus claims. Abdul-Akbar v. Dept. of Corr ections, 910 F.

Supp. 986, 998 (D. Del. 1995). In Abdul-Akbar v. Watson,

901 F.2d 329 (3d Cir. 1990), this court reviewed a district

court order barring Appellant from filing any further S 1983

claims I.F.P. and held that a district court may enter an

injunction precluding a prisoner fromfiling any S1983

claims without leave of court and without making certain

good faith certifications. 901 F.2d at 333. We stated that

Abdul-Akbar's "history of repetitious and frivolous filings

indicates a clear intent to abuse the courts and the I.F.P.

process." Id. at 334. An injunction subsequently was

entered by the district court. Abdul-Akbar v. Dept. of

Corrections, 910 F. Supp. at 1009.

On February 10, 1998, Appellant filed a motion for leave

to file a S 1983 Complaint, a proposed Complaint and a

motion to proceed I.F.P. The pr oposed Complaint alleged

that on or about January 9, 1998, prison officials

arbitrarily sprayed Appellant with pepper gas and r efused

to provide him with medical treatment even though they

knew that he suffers from asthma. Appellant also claimed

that certain prison officials violated his civil rights by

belonging to a racist organization, that one defendant failed

to investigate properly the pepper spray incident, and that

the district court judge violated his Sixth Amendment right

4

of access to the courts by preventing his complaints from

being heard.

The district court denied the motion to proceed I.F.P.,

reasoning that (1) Appellant had brought actions that the

court had dismissed as frivolous on more than three prior

occasions, and (2) he did not claim to be in imminent

danger of serious physical injury.

The district court had jurisdiction over this case under

28 U.S.C. S 1331. We have jurisdiction because an order

denying leave to proceed I.F.P. is a final, collateral order

appealable under 28 U.S.C. S 1291. The appeal was timely

filed. This court reviews de novo issues of statutory

interpretation, Pennsylvania Mines Corp. v. Holland, 197

F.3d 114, 119 n.2 (3d Cir. 1999), and the constitutionality

of a statute, DeSousa v. Reno, 190 F .3d 175, 180 (3d Cir.

1999).

II.

The discretionary power to permit indigent plaintiffs to

proceed without first paying a filing fee was initially codified

in the federal statutes in 1892. See Act of July 20, 1892,

ch. 209 1-5, 27 Stat. 252. Congress enacted the I.F.P.

statute, currently codified at 28 U.S.C.S 1915, "to ensure

that administrative court costs and filing fees, both of

which must be paid by everyone else who files a lawsuit,

would not prevent indigent persons from pursuing

meaningful litigation." Deutsch v. United States, 67 F.3d

1080, 1084 (3d Cir. 1995) (citing Denton v. Hernandez, 504

U.S. 25, 31 (1992)). Congress was also awar e of the

potential for abuse, and it included a subsection allowing

for dismissal of frivolous or malicious actions. Denton, 504

U.S. at 31.

Congress subsequently enacted the Prison Litigation

Reform Act ("PLRA" or "Act"), Pub. L. No. 104-134, 110

Stat. 1321 (1996), largely in response to concerns about the

heavy volume of frivolous prisoner litigation in the federal

courts. See 141 Cong. Rec. S14408-01, S14413 (daily ed.

Sept. 27, 1995) (statement of Sen. Dole) (explaining that the

number of prisoner suits filed "has grown astronomically--

from 6,600 in 1975 to more than 39,000 in 1994"). In

5

enacting the PLRA, Congress concluded that the large

number of meritless prisoner claims was caused by the fact

that prisoners easily obtained I.F.P. status and hence were

not subject to the same economic disincentives tofiling

meritless cases that face other civil litigants. See 141 Cong.

Rec. S7498-01, S7526 (daily ed. May 25, 1995) (statement

of Sen. Kyl) ("Filing frivolous civil rights lawsuits has

become a recreational activity for long-term residents of

prisons."); 141 Cong. Rec. S7498-01, S7524 (daily ed. May

25, 1995) (statement of Sen. Dole) ("[P]risoners will now

`litigate at the drop of a hat,' simply because they have little

to lose and everything to gain."). To curb this trend, the

PLRA instituted a number of reforms in the handling of

prisoner litigation.

Among other things, the PLRA amended the I.F .P. statute

as it applies to prisoners. Under the statute as amended, a

prisoner who is allowed to proceed I.F.P . is not excused

from paying filing fees, but is only excused from pre-paying

them in full if they meet certain criteria. The PLRA now

requires prisoners who qualify for I.F .P. status to pay by

way of an initial partial fee, followed by installment

payments until the entire fee is paid. 28 U.S.C. S 1915(b)(1).

Congress also added S 1915(g), the "three strikes rule,"

which limits a prisoner's ability to proceed I.F.P. if the

prisoner abuses the judicial system by filing frivolous

actions. Prisoners may avoid the limitation in this

provision, however, if they are under "imminent danger of

serious physical injury."

This appeal requires us to decide when the existence of

"imminent danger" is to be assessed; specifically, whether it

is assessed as of the time the complaint is filed, or at some

time in the past, even though that danger no longer exists

when the complaint is filed.

Today we abandon the rule announced in Gibbs that

"imminent danger" is assessed at the time of the alleged

incident. We adopt, instead, the construction set forth by

the Fifth, Eighth and Eleventh Circuit Courts of Appeals,

that a prisoner may invoke the "imminent danger"

exception only to seek relief from a danger which is

"imminent" at the time the complaint is filed. We conclude

that this interpretation is consistent with the plain

6

language of S 1915(g), with congressional intent and with

the legislative purpose of the PLRA as a whole.

III.

This is a case of statutory construction, and we begin our

analysis with the language of S 1915(g):

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 mor e 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.

A.

We now apply settled precepts of statutory construction

and take as our beginning point a recognition that from the

earliest times, we have adopted what is called the American

Plain Meaning Rule exemplified in Caminetti v. United

States, 242 U.S. 470, 485 (1917) (internal citations

omitted):

It is elementary that the meaning of the statute must,

in the first instance, be sought in the language in

which the act is framed, and if that is plain, and if the

law is within the constitutional authority of the law-

making body which passed it, the sole function of the

courts is to enforce it according to its terms. Where the

language is plain and admits of no more than one

meaning the duty of interpretation does not arise and

the rules which are to aid doubtful meanings need no

discussion.

In 1993, the Court made a modern statement of the plain

meaning rule: "Our task is to give effect to the will of

Congress, and where its will has been expr essed in

reasonably plain terms, that language must ordinarily be

regarded as conclusive." Negonsett v. Samuels, 507 U.S. 99,

104 (1993). If the language of the statute is plain, the sole

7

function of the court is to enforce the statute according to

its terms. United States v. Ron Pair Enters., Inc., 489 U.S.

235, 241 (1989). The plain meaning is conclusive, therefore,

"except in the `rare cases [in which] the literal application

of a statute will produce a result demonstrably at odds with

the intentions of its drafters.' " Id. at 242 (quoting Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564 (1982)).

B.

We now apply the ordinary meaning of the words chosen

by Congress in drafting S 1915(g). The phrase "in no event"

simply means "may not." This court has pr eviously held

that the word "bring" in this context plainly refers to the

time when the civil action is initiated. Gibbs v. Ryan, 160

F.3d 160, 162 (3d Cir. 1998). Putting the phrases together,

the first clause of S 1915(g) obviously means "a prisoner

may not file a new civil complaint." In the or dinary sense of

the words, this clause refers temporally to the time the new

complaint is filed. The clause "unless he is in imminent

danger of serious physical injury" is an exception to the

preclusive effect of the statute. But the exception is cast in

the present tense, not in the past tense, and the word "is"

in the exception refers back to the same point in time as

the first clause, i.e., the time of filing. The statute

contemplates that the "imminent danger" will exist

contemporaneously with the bringing of the action.

Someone whose danger has passed cannot reasonably be

described as someone who "is" in danger , nor can that past

danger reasonably be described as "imminent." The court

so held in Ashley v. Dilworth, 147 F .3d 715, 717 (8th Cir.

1998):

As the statute's use of the present tense verbs`bring'

and `is' demonstrates, an otherwise ineligible prisoner

is only eligible to proceed IFP if he is in imminent

danger at the time of filing. Allegations that the

prisoner has faced imminent danger in the past ar e

insufficient to trigger this exception to S 1915(g) and

authorize the prisoner to pay the filing fee on the

installment plan.

See also Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.

1999) ("Congress' use of the present tense in S 1915(g)

8

confirms that a prisoner's allegation that he faced imminent

danger sometime in the past is an insufficient basis to

allow him to proceed in forma pauperis . . . ."); Banos v.

O'Guin, 144 F.3d 883, 885 (5th Cir . 1998) ("[T]he language

of S 1915(g), by using the present tense, clearly refers to the

time when the action or appeal is filed or the motion for IFP

status is made."). Taking both clauses together, the statute

plainly means that a prisoner is not permitted to file his

complaint unless he is, at that time, under imminent

danger. Viewed from the Plain Meaning Rule, we interpret

"is under imminent danger" to relate to the time when "a

prisoner bring[s] a civil action."

IV.

Reinforcing the interpretation of the statute by

application of the Plain Meaning Rule is an analysis of

language found in other portions of the PLRA. For example,

another section of the Act, S 1915(b)(4), pr ovides:

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 filing fee.

28 U.S.C. S 1915(b)(4) (emphasis added). As in subsection

(g), this provision begins with the exhortation"in no event

shall," and, as in subsection (g), it describes a necessary

condition by using the present tense of the operative verb.

Section 1915(b)(4) plainly means that the courts may not

prohibit a prisoner from filing a new complaint for the

reason that he does not possess any assets at the time of

filing. The temporal reference point for the verb "has" is the

time of filing, the time at which the fee is due.

Other provisions support this construction by focusing

on the time of filing. Section 1997e(a) of T itle 42, amended

by the PLRA, requires that the plaintif f exhaust

administrative remedies, but only if the plaintiff is a

prisoner at the time of filing. Greig v. Goord, 169 F.3d 165,

167 (2d Cir. 1999). Similarly, the applicability of the

personal injury requirement of 42 U.S.C.S 1997e(e) turns

on the plaintiff 's status as a prisoner , not at the time of the

incident, but when the lawsuit is filed. Harris v. Garner,

9

216 F.3d 970, 974-975 (11th Cir. 2000). Finally, the need

for the district court to screen a complaint in a civil action

filed by a prisoner, as requir ed by 28 U.S.C. S 1915A, looks

to the plaintiff 's status when the case isfiled. Johnson v.

Hill, 965 F. Supp. 1487, 1488 n.2 (E.D. V a. 1997).

V.

Appellant argues that requiring pr oof of imminent danger

as of the time of filing is inconsistent with Congress' intent.

Having applied the American Plain Meaning Rule and

having determined that there is no ambiguity, we are not

required to answer this contention of the Appellant.

Nevertheless, we perceive the congressional intent as clear

when we examine the purpose of the entire PLRA.

As noted above, Congress enacted the PLRA in or der to

limit the filing of frivolous and vexatious prisoner lawsuits.

To accomplish this, Congress curtailed the ability of

prisoners to take advantage of the privilege offiling I.F.P.

The "three strikes" rule added by the PLRA supplied a

powerful economic incentive not to file frivolous lawsuits or

appeals. In stark terms, it declared that the I.F.P. privilege

will not be available to prisoners who have, on thr ee

occasions, abused the system by filing frivolous or

malicious lawsuits or appeals, no matter how meritorious

subsequent claims may be.

It is important to note that S 1915(g) does not block a

prisoner's access to the federal courts. It only denies the

prisoner the privilege of filing before he has acquired the

necessary filing fee. Appellant argues that a prisoner

subject to the "three strikes" rule, but who does not

establish "imminent danger," could for ever lose his ability

to bring his suit as a practical matter because of the

difficulties of obtaining the money, the application of the

statute of limitations, or the possible loss of necessary

evidence. This argument attempts to pr ove too much. It

overlooks the fact that prisoners may seek r elief in state

court, where limitations on filing I.F .P. may not be as strict.

Potentially negative consequences in federal courts, as

distinguished from state courts, ar e precisely the

consequences intended by Congress. The outcome predicted

10

by Appellant is, for better or for worse, exactly the result

the PLRA intends.

Recognizing that it could take prisoners a significant

period of time to obtain the filing fee in some cases,

Congress created a limited exception aimed at preventing

future harms, and did so through the use of the word

"imminent." "Imminent" dangers ar e those dangers which

are about to occur at any moment or are impending. See

WEBSTER'S II NEW RIVERSIDE UNIVERSITYDICTIONARY 611 (1984).

By using the term "imminent," Congr ess indicated that it

wanted to include a safety valve for the "thr ee strikes" rule

to prevent impending harms, not those har ms that had

already occurred. The imminent danger exception allows

the district court to permit an otherwise barr ed prisoner to

file a complaint I.F.P. if the prisoner could be subject to

serious physical injury and does not then have the r equisite

filing fee.

In contrast, under the Gibbs construction, the prisoner

need only show that he was subject to imminent danger at

the time of the alleged incident. By definition, an imminent

threat of serious physical injury always exists in the

moments before any such injury is inflicted. Thus, under

the Gibbs approach, any time that an otherwise disqualified

prisoner alleges that any threat of physical injury occurred

at any time, that prisoner automatically qualifies for the

imminent danger exception. The Gibbs interpr etation of the

imminent danger exception thereby swallows the rule. Like

every other court of appeals that has consider ed this issue,

we refuse to conclude that with one hand Congr ess

intended to enact a statutory rule that would r educe the

huge volume of prisoner litigation, but, with the other

hand, it engrafted an open-ended exception that would

eviscerate the rule.1

_________________________________________________________________

1. The dissent devotes much effort to asserting that, even under our time

of filing construction, Appellant's S 1983 Complaint satisfied the terms

of

the imminent danger exception because the Complaint, under the

dissent's liberal construction, alleged an ongoing risk of serious

physical

injury. Importantly, at no point in the present litigation did Appellant

seek to rely on an ongoing danger theory, even through the able counsel

appointed by this court for purposes of this appeal. Inasmuch as the

11

This is not to suggest that we would criticize any statute

or judicially-created legal precept that would permit any

prisoner, even a frequent filer, to file such a complaint I.F.P.

Such a notion is entirely compatible with the precept that

for any injury, there should be a remedy. But we do not

write in the abstract here, nor do we write on a clean slate.

Congress has deliberately decided to legislate on this

subject by proclaiming, as public policy, a determination to

reduce prisoner litigation in the federal courts. As citizens,

we may disagree with the congressional wisdom, but as

judges, knowing the clearly stated legislative purpose, we

may not disembowel the legislative act. Federal courts,

unlike state common law King's Bench courts, do not have

unlimited power and authority. We are limited to that which

has been granted by Congress. What Congr ess gives it may

also take away. The ability to proceed I.F .P. is not a

constitutional right. Congress granted the right to proceed

I.F.P. in 1892, and it has the power to limit this statutorily

created right. Here it has taken away our ability as judges

_________________________________________________________________

dissent uses our silence with respect to an issue not raised by the

parties to argue that our construction of the imminent danger exception

eliminates a prisoner's ability to satisfy the imminent danger exception

by alleging an ongoing risk of serious physical injury, we respond only

by stressing that we by no means intend such a result.

At all events, we doubt whether the allegations in Appellant's S 1983

Complaint suffice to establish such an ongoing danger. Even under a

liberal reading of Appellant's pleading, it is evident that Appellant's

allegations center on an incident that occurr ed on or about January 9,

1998, when a prison official allegedly sprayed Appellant with pepper gas.

App. 9-10. Appellant does not identify any further incidents occurring

after that date. Moreover, although Appellant alleges that he experienced

several other acts of physical harassment by dif ferent prison officials,

these events not only all pre-date the January 9th incident, but also

appear entirely unconnected to it, and thus undermine the dissent's

claim that the danger to Appellant was ongoing. Finally, while Appellant

does allege that he complained for a year about the use of pepper gas

(App. 10), and that prison officials engaged in"continuing harassment,

ploits [sic] to hurt or kill [him], and other forms of retaliation," (App.

8,

9) such generalized allegations strike us as insufficient to connect the

separate incidents mentioned above into a patter n of threats of serious

physical injury that are ongoing.

12

to grant I.F.P. status to a "thr ee strikes" prisoner, no matter

how meritorious his or her subsequent claims may be,

unless the prisoner "is under imminent danger of serious

physical injury" when he or she "bring[s] a civil action."

Congress has held trump here, and it has dealt a hand. As

judges we must play it.

VI.

Appellant also mounts the argument that S 1915(g), as we

interpret it, would offend the equal pr otection guarantee

implied in the Fifth Amendment by improperly burdening a

prisoner's "fundamental right of access" to the courts.2

_________________________________________________________________

2. In his reply brief, Appellant contends for the first time that this

interpretation of the statute runs counter to the protections assured by

the Eighth Amendment. Appellant argues that"[t]he right to be free from

serious physical injury while in prison is sur ely as fundamental as the

right to divorce," citing as authority Boddie v. Connecticut, 401 U.S. 371

(1971), and that, therefore, he is entitled to a waiver of filing fees as

a

matter of law. We will not discuss the merits of this contention because

Abdul-Akbar waived this argument by not raising it in his opening brief.

Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000). "[The argument in

the reply brief comes] too late . . . . Rule 28(a)(5) of the Federal Rules

of

Appellate Procedure and our Local Rule 28.1(a) require appellants to set

forth the issues raised on appeal and to present an argument in support

of those issues in their opening brief." Id. ; see also Kost v.

Kozakiewicz,

1 F.3d 176, 182 (3d Cir. 1993) ("It is well settled that if an appellant

fails

to comply with these requirements on a particular issue, the appellant

normally has abandoned and waived that issue on appeal and it need

not be addressed by the court of appeals.").

The dissent contends that Abdul-Akbar's waiver should be ignored

because an assessment of the importance of a claimed constitutional

interest is an implicit part of any equal pr otection or due process

inquiry

determining the level of scrutiny that will apply to a challenged

government action. The dissent agrees with Abdul-Akbar that the right

to be free from serious physical injury is just as weighty as the right to

a divorce at issue in Boddie, and would hold that such a right represents

a fundamental interest for Boddie purposes. Furthermore, the dissent

also points to several other underlying rights, including the First

Amendment right to free exercise of r eligion, that are not at issue in

the

instant case, but that the dissent would also pr esumably treat as

fundamental interests under Boddie. What the dissent fails to recognize,

13

Moreover, he argues that we must apply strict scrutiny in

considering this contention and that, alternatively, even

under rational basis scrutiny, the statute, as we interpret

it, does not pass constitutional muster because it is not

rationally related to a legitimate gover nmental interest.

A.

Although the Fifth Amendment contains no Equal

Protection Clause, "the Fifth Amendment's Due Process

Clause prohibits the Federal Government from engaging in

discrimination that is `so unjustifiable as to be violative of

due process.' " Schlesinger v. Ballar d, 419 U.S. 498, 500 n.3

(1975) (quoting Bolling v. Sharpe, 347 U.S. 497, 499

(1954)). Accordingly, the Court has construed the Fifth

Amendment to contain an equal protection guarantee. See,

e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616

(1991). Fifth Amendment equal protection claims are

examined under the same principles that apply to such

claims under the Fourteenth Amendment. Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995)

(citations omitted). Statutes that substantially bur den a

fundamental right or target a suspect class must be

reviewed under "strict scrutiny;" that is, to survive, they

must be narrowly tailored to serve a compelling

governmental interest. Plyler v. Doe , 457 U.S. 202, 216-217

(1982). Conversely, if a statute neither bur dens a

fundamental right nor targets a suspect class, it does not

violate the Fourteenth Amendment's Equal Protection

Clause, as incorporated through the Fifth Amendment's

Due Process Clause, so long as it bears a rational

relationship to some legitimate end. Romer v. Evans, 517

U.S. 620, 631 (1996).

_________________________________________________________________

however, is that the importance of the underlying right is largely

immaterial to the question whether that right is a fundamental interest

for Boddie purposes. As we discuss infra in Part VI.B., an underlying

constitutional entitlement rises to the level of a Boddie fundamental

interest only when the government blocks the sole legal means for

safeguarding that entitlement, and not simply because the interest itself

is a weighty one.

14

This requires us first to determine whether Appellant is

a member of a suspect class or whether a fundamental

right is implicated. Neither prisoners nor indigents are

suspect classes. See, e.g., Pryor v. Brennan, 914 F.2d 921,

923 (7th Cir. 1990) (noting that prisoners do not constitute

a suspect class); Harris v. McRae, 448 U.S 297, 323 (1980)

(noting that poverty is not a suspect classification). Nor has

Appellant argued before us that indigent prisoners,

specifically, frequent filer indigent prisoners, are a suspect

class. We then must inquire whether the"time of filing"

construction infringes upon one of Appellant's fundamental

rights.

B.

Appellant contends that the "time of filing" interpretation

adopted by our sister courts of appeals and adopted by us

today unconstitutionally burdens his fundamental right of

access to the courts by requiring him to pay fees. But the

right of access to the courts is not absolute. United States

v. Kras, 409 U.S. 434, 450 (1972). Courts pr esented with

this issue have consistently held that merely r equiring a

prisoner to pay filing fees in a civil case does not, standing

alone, violate that prisoner's right of meaningful access to

the courts. See, e.g., Rivera v. Allin, 144 F.3d 719, 724

(11th Cir. 1998); Roller v. Gunn, 107 F.3d 227, 231 (4th Cir.

1997). We agree. Section 1915(g) does not prevent a

prisoner with "three strikes" fromfiling a civil action; he or

she is simply unable to enjoy the benefits of pr oceeding

I.F.P. and must pay the fees at the time of filing instead of

under the installment plan. And, given the right of

Congress to limit the power of federal courts, it cannot be

said that limiting the temporal aspect of the exception to

the "three strikes" rule infringes upon Appellant's right of

access to the courts.

The Court has recognized only a "narr ow category of civil

cases in which the State must provide access to its judicial

processes without regard to a party's ability to pay court

fees." M.L.B. v. S.L.J., 519 U.S. 102, 113 (1996). An

unconditional right of access exists for civil cases only

when denial of a judicial forum would implicate a

fundamental human interest -- such as the ter mination of

15

parental rights or the ability to obtain a divorce. Id. at 116-

117; Boddie v. Connecticut, 401 U.S. 371, 382-383 (1971).

Examples of interests that the Court has held do not rise to

this level are bankruptcy filings, Kras , 409 U.S. at 444-445,

and welfare benefit determinations, Ortwein v. Schwab, 410

U.S. 656, 659 (1973).

In the seminal case of Boddie, the Court emphasized that

the deprivation of due process emanated fr om "the State's

refusal to admit these appellants to its courts, the sole

means in Connecticut for obtaining a divorce, [and that this]

must be regarded as the equivalent of denying them an

opportunity to be heard upon their claimed right to a

dissolution of their marriages." 401 U.S. at 380-381

(emphasis added). Unlike the parties in Boddie , Appellant is

not precluded from filing his S 1983 Complaint in another

court system that does not have a "three strikes" provision.

State courts have concurrent jurisdiction overS 1983 cases.

Howlett v. Rose, 496 U.S. 356, 358 (1990). Appellant can

seek I.F.P. status under Delawar e law because it does not

have a parallel "three strikes" rule. See generally 10 Del. C.

S 8802 (I.F.P. statute). A state court provides a fully

adequate forum for the vindication of civil rights claims.

See generally Tafflin v. Levitt, 493 U.S. 455, 458 (1990)

("[S]tate courts have inherent authority, and are thus

presumptively competent, to adjudicate claims arising

under the laws of the United States."). Because neither

Delaware substantive law nor Delaware court rules

prevented him, as an indigent prison litigant, from

pursuing his claims, we do not agree that strict scrutiny is

the appropriate test. We therefor e examine S 1915(g) using

rational basis review as have our sister courts of appeals.

See, e.g., Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir.

1999); White v. Colorado, 157 F.3d 1226, 1234 (10th Cir.

1998), cert. denied, 526 U.S. 1008 (1999); Wilson v. Yaklich,

148 F.3d 596, 604 (6th Cir. 1998), cert. denied, 525 U.S.

1139 (1999); Rivera, 144 F.3d at 727; Carson v. Johnson,

112 F.3d 818, 822 (5th Cir. 1997).

C.

We are satisfied that our interpr etation of S 1915(g)

passes the rational basis test. Appellant focuses on the

16

right of access to the courts, arguing thatS 1915(g)'s

purpose and effect is to prevent him and other frequent filer

prisoner indigents from filing civil lawsuits. In addressing

this contention, we must first examine the legislative

purpose.

As discussed above, the legislation was aimed at the

skyrocketing numbers of claims filed by prisoners -- many

of which are emotionally driven but legally deficient -- and

the corresponding burden those filings have placed on the

federal courts. Congress sought to put in place economic

incentives that would prompt prisoners to "stop and think"

before filing a complaint.3 The "three strikes" rule thus

serves as a rational deterrent mechanism, for cing potential

prisoner litigants to examine whether their filings have any

merit before they are filed, and disqualifying frequent filers

who have failed in the past to carefully evaluate their

claims prior to filing.

_________________________________________________________________

3. Congress's rationale for placing the fee requirements on prisoners is

captured in the statements of Senator Jon Kyl:

Section 2 will require prisoners to pay a very small share of the

large burden they place on the Federal judicial system by paying a

small filing fee upon commencement of lawsuits. In doing so, the

provision will deter frivolous inmate lawsuits. The modest

monetary

outlay will force prisoners to think twice about the case and not

just

file reflexively. Prisoners will have to make the same decision

that

law-abiding Americans must make: Is the lawsuit worth the price?

Criminals should not be given a special privilege that other

Americans do not have . . . . The volume of prisoner litigation

represents a large burden on the judicial system, which is already

overburdened by increases in nonprisoner litigation. Yet prisoners

have very little incentive not to file nonmeritorious lawsuits.

Unlike

other prospective litigants who seek poor person status, prisoners

have all the necessities of life supplied, including the materials

required to bring their lawsuits. For a prisoner who qualifies for

poor person status, there is no cost to bring a suit and,

therefore,

no incentive to limit suits to cases that have some chance of

success. The filing fee is small enough not to deter a prisoner

with

a meritorious claim, yet large enough to deter frivolous claims

and

multiple filings.

141 CONG. REC. S7498-01, S7526 (daily ed. May 25, 1995) (statement of

Sen. Kyl) (citation omitted).

17

Deterring frivolous prisoner filings in the federal courts

falls within the realm of Congress' legitimate interests, and

the interpretation we adopt today is rationally related to the

achievement of that interest. "[T]he right of access to federal

courts is not a free floating right, but rather is subject to

Congress' Article III power to set limits on federal

legislation." Roller, 107 F.3d at 231. Although it had the

power to do so, Congress did not repeal any particular

cause-of-action available to prisoners. Rather , Congress

changed only the rules regarding I.F .P. status. Under

S 1915(g), prisoners are still able tofile civil actions; they

are merely prohibited from enjoying I.F.P. status. Lyon v.

Krol, 127 F.3d 763, 765 (8th Cir . 1997); Carson, 112 F.3d

at 821. Preventing frequent filers fr om obtaining fee waivers

is rationally related to the legitimate gover nment interest of

deterring frivolous lawsuits because "Congr ess is no more

compelled to guarantee free access to federal courts than it

is to provide unlimited access to them." Roller, 107 F.3d at

231. Although the dissent claims that the "thr ee strikes"

rule embodied in S 1915(g) is too blunt an instrument and

is insufficiently targeted to arrest frivolous filings, we have

always recognized that constitutional constraints "require[ ]

neither a perfect nor even best availablefit" between a

statute's goal and the means employed in that statute to

further that goal. United States v. Mariani, 212 F.3d 761,

774 (3d Cir. 2000) (en banc).

Congress included an exception to the "thr ee strikes" rule

for those cases in which it appears that judicial action is

needed as soon as possible to prevent serious physical

injuries from occurring in the meantime. Thus,S 1915(g)

rationally balances the economic deterrence rationale

behind the "three strikes" rule with the need for those

prisoners who remain in danger of futur e grievous harm to

be able to file immediately. Accordingly, we hold that our

interpretation of S 1915(g) does not violate equal protection

concepts embodied in the Fifth Amendment.

* * * * *

We have considered all contentions pr esented by the

parties and conclude that no further discussion is

necessary.

18

The judgment of the district court will be affir med.4

_________________________________________________________________

4. The court acknowledges with appreciation the able pro bono

representation of Appellant by the lawfirm of Jenner & Block.

19

MANSMANN, Circuit Judge, dissenting, with whom Judges

Sloviter, Nygaard and McKee join.

I.

Today the majority interprets and applies the "three

strikes" rule of the Prison Litigation Refor m Act of 1995

("PLRA"), 28 U.S.C. S 1915(g), in a manner destined to bar

the doors of our courts against a disfavored gr oup --

indigent prisoners who have resorted unsuccessfully to civil

litigation -- even with respect to meritorious litigation that

may be their sole means of vindicating a fundamental right.

Because I believe that this case falls within a statutory

exception, as properly interpreted in Gibbs,1 and that the

statute, as interpreted and applied by the majority,

substantially burdens fundamental rights without narrowly

serving a compelling governmental inter est, I respectfully

dissent.

In 1990 we struck down a District Court injunction

barring in forma pauperis ("IFP") suits by the same

Appellant before us today as violative of the constitutional

right of access to the courts, and we directed instead entry

of an injunction that would permit such suits subject to

certification and review calculated to test for frivolity. See

Abdul Akbar v. Watson, 901 F.2d 329 (3d Cir. 1990). While

not expressly repudiating our holding in Watson, the

majority nonetheless essentially holds that what the

District Court was then precluded from doing by the

Constitution it is now required to do by statute. Today's

holding therefore places us at odds with a well-established

line of cases exemplified by Watson.2

_________________________________________________________________

1. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).

2. In both Watson and our prior decision in In re Packer Avenue

Associates, 884 F.2d 745 (3d Cir. 1989), we adopted the approach of the

District of Columbia Circuit in the leading case of In re Green, 669 F.2d

779 (D.C. Cir. 1981). See also Procup v. Strickland, 792 F.2d 1069,1072

n.6 (11th Cir. 1986) (en banc) ("Several courts have held that a total ban

on all IFP filings by a particular litigant as a sanction for abuse is

impermissible.") (citing Green and cases from Second, Ninth and Tenth

Circuits); Joseph T. Lukens, The Prison Litigation Reform Act: Three

Strikes and You're Out of Court -- It May Be Effective, But Is It

20

This case unfortunately illustrates the maxim that bad

cases may sometimes make bad law. This Appellant has

clearly abused the IFP system, filing some 200 cases, most

without merit. The three strikes rule as interpreted by the

majority, however, will burden other would-be litigants who

have not filed 200 cases, and whose "strikes" were racked

up without any bad faith or abuse.3 It will, moreover, bar

potentially meritorious litigation at the filing stage, with no

opportunity for substantive review or appeal.

II.

The principal holding announced by the majority is not

very far-reaching. It rejects a statement in our earlier Gibbs

case to the effect that imminent danger is to be determined

as of the time of the incident complained of, and joins with

our sister courts of appeals that have held that danger

must exist at the time the Complaint or appeal isfiled. I

joined in, and continue to adhere to, the able opinion of

Judge Garth in Gibbs. In Gibbs we held that a prisoner who

alleged two prior attacks by inmates and death thr eats,

each related to his identification as a gover nment

_________________________________________________________________

Constitutional?, 70 Temp. L. Rev. 471, n. 90-91 (Summer 1997)

(providing extensive citations to circuit court cases requiring that

injunctions be narrowly tailored to pr eserve access for legitimate

claims).

The sole difference between the pr eclusive effect of injunctions held

impermissible in the cited cases and the statutory bar of section 1915(g)

is that the latter includes a narrow exception (extremely narrow, as

interpreted by the majority) which is patently insufficient to safeguard

the broad scope of rights jeopardized by the IFP ban. Cf. Procup, 792

F.2d at 1074 (Clark, J., concurring) (construing limitation of IFP for

abusive prisoner litigant to "claims alleging actual or threatened

physical

harm" to be "an unconstitutional denial of access").

3. Although dismissals for failure to state a claim do not necessarily

signify abuse, they nonetheless count as "strikes" for purposes of

section 1915(g). Moreover, the many procedural and substantive hurdles

erected in the path of civil rights claims against government actors might

easily trip up a pro se litigant with a bona fide claim. The majority's

repeated characterization of the statutory bar as applying only to

prisoners who "abuse" the judicial system byfiling frivolous actions is

therefore somewhat misleading.

21

informant, and who alleged that his "life[was] in constant

danger", provided sufficient allegations of "imminent

danger" to survive the "three strikes" rule. Although our

principal holding was that "a complaint alleging imminent

danger . . . must be credited as having satisfied the

threshold criterion of S 1915(g) unless[that] element is

challenged", we also stated that "the pr oper focus when

examining an inmate's complaint filed pursuant to

S 1915(g) must be the imminent danger faced by the inmate

at the time of the alleged incident, and not at the time the

complaint was filed." 116 F.3d at 86.

No clear intent may be discerned from section 1915(g)'s

use of the present tense ("unless the prisoner is under

imminent danger"), because the same subsection elsewhere

employs the present tense in refer ence to what are

expressly recognized as past events ("if the prisoner has

brought an action or appeal . . . that was dismissed on the

grounds that it is frivolous, malicious or fails to state a

claim . . ."). This erroneous combination of tenses renders

the statutory provision ambiguous, and I believe that such

ambiguity must be resolved in favor of pr eserving the right

of access to the courts for prisoners threatened with bodily

injury.

As the majority has acknowledged, the purpose of the

exception is to "prevent[ ] futur e harms." Supra at 11. This

purpose is best served by a liberal interpretation of the

exception, one which gives scope to -- and so facilitates --

the deterrent effect of the subsequent damages remedy

available under section 1983. See City of Riverside v.

Rivera, 477 U.S. 561, 575 (1986) (plurality) (stating that

"the damages a plaintiff recovers contribute significantly to

the deterrence of civil rights violations in the future"). Cf.

Gibbs (rejecting argument that "suit for damages rather

than injunctive relief . . . was not seeking to protect . . .

physical safety"). 116 F.3d at 85. Contrary to the majority's

assertion, the exception as interpreted by Gibbs does not

"eviscerate" the three strikes rule. A would-be litigant must

plead imminent danger of serious physical injury (rather

than a deprivation of procedural, associational, religious or

other rights), and the court must determine that such

danger is or was in fact present if such allegation is

22

controverted. Moreover, as discussed below, section

1915(g)'s potential encroachment into important

665<!>constitutional rights also counsels for a br oad

interpretation of the exception. Finally, the importance of

presenting an appropriately lenient interpretation in this en

banc opinion -- which will guide the district courts in their

decisions on hundreds, if not thousands, of prisoner filings

-- is heightened by the preclusive natur e of section 1915(g).

That is, the denial of in forma pauperis status and resultant

dismissal of prisoner litigation made pursuant ther eto will

be effectively unreviewable, as a truly indigent plaintiff will

no more be able to afford the r equisite filing costs for

appeal of that dismissal than for the underlying action.

III.

While I disagree with the majority's rejection of the

standard enunciated in Gibbs for one which determines the

existence of imminent danger at the time the Complaint or

appeal is filed, it is the majority's application of that

standard to the facts of this case, and implicitly to those of

Gibbs, that I find considerably more tr oubling.

The majority appears simply to assume that its holding

that imminent danger must be assessed at the time offiling

is dispositive of this case, and that Appellant was not in

such danger. In so assuming, the majority seriously

undermines protection of physically endangered prisoners

by paying too little heed to ongoing threats.

The majority's lengthy explication of statutory tense

notwithstanding, an equally crucial question of

interpretation under section 1915(g) concer ns the meaning

of "imminent danger". The majority's definition of

"imminent" dangers as those "which ar e about to occur at

any moment or impending", supra at 11, is far too

restrictive. In a real-world prison setting, the timing of an

attack cannot be so neatly predicted. It may be that an

ongoing threat of danger looms over a prisoner for an

extended period. At any given moment, the har m might not

be "about to" occur; then again, it might. Such is the

nature of "danger". It involves risk, not certainty.

23

The phrase "imminent danger" is not defined in the

PLRA. It may be instructive, however, to consider the

definition accorded the same phrase in other contexts. For

example, under the Eighth Amendment prison authorities

must protect prisoners not only from curr ent threats, but

also from "sufficiently imminent dangers"; the courts have

defined that phrase as encompassing those dangers"likely

to cause harm in the `next week, month, or year.' " Horton

v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995) (quoting

Helling v. McKinney, 509 U.S. 25 (1993); Payne v. Collins,

986 F. Supp. 1036, 1052 (E.D. Tex. 1997) (observing that

this approach includes review of the actions taken to

alleviate the threat).4 In discussing "imminent harm" in the

preliminary injunction context, we have held that standard

met where the potential harm was not"uncertain or

speculative", but might be expected to occur before the

threat could otherwise be averted.5 In determining

standing, the courts have framed their inquiry into the

"immediate threat" as one encompassing consideration of

the likelihood of an ongoing danger, as evidenced by past

events. See, e.g., O'Shea v. Littleton , 414 U.S. 488, 496

(1974) ("past wrongs are evidence bearing on whether there

is a real and immediate threat of r epeated injury").

Indeed, this conception of imminent danger as

encompassing an ongoing threat has been explicitly

recognized by one of our sister circuits. In Ashley v.

Dilworth, 147 F.3d 715 (8th Cir. 1998), the Eighth Circuit

_________________________________________________________________

4. See also, e.g., Maze v. Hargett, 1998 WL 378369 *3 (Apr. 27, 1998

N.D. Miss.) (finding "sufficiently imminent danger of future physical

harm" during prisoner's "tenure" in light of continuing conditions).

5. BP Chemicals Ltd. v. Formosa Chemical & Fibre Corp., 229 F.3d 254,

263 (3d Cir. 2000) (citing Charles Alan W right, Arthur R. Miller, Mary

Kay Kane, Federal Practice and Procedur e S 2948.1 at 139 (2d ed. 1995)

as "explaining that imminence requires that the harm will occur before

a trial on the merits can be had"). Another statute similarly "defines the

threat of `imminent danger' as the existence of a condition . . . which

could `[r]easonably be expected to cause substantial harm . . . before

such condition . . . can be abated.' " Hodel v. Va. Surface Mining &

Reclamation Assn., 452 U.S. 264, 301 (1981), quoting the Surface

Mining Control and Reclamation Act, 30 U.S.C.S 1291(8) (1976 ed.,

Supp. III).

24

held that a prisoner placed in continuing pr oximity to

inmates on his "enemy alert list" and subject to prior

assaults "properly alleged an ongoing danger" and so "[met]

the imminent danger exception of section 1915(g)." 147

F.3d at 717.6

Appellant's litigious history may incline us to r ead his

Complaint with a certain degree of skepticism. Nonetheless,

our precedents require us to construe pleadings, and

especially pro se pleadings, liberally. See Gibbs, 116 F.3d at

86 (observing that "[u]nder our liberal pleading rules" all

allegations should be construed "in favor of the

complainant") (citations omitted). Reading the Complaint in

the light most favorable to Appellant, I find his claimed

predicament alarming.

Appellant, a black inmate, brought this action seeking,

inter alia, an injunction against white prison guar ds "from

continuing . . . plots to hurt or kill [him]". App. 8. The

guards in question are asserted to be racists who "don't

accept . . . Black people as human beings" and thus do not

respect rights of any black person. App. 13. Appellant is a

particular target of the guards' animus, as he asserts they

are engaged in a conspiracy to retaliate against Appellant

for filing complaints against them for past abuses. App. 9.

Guards have made a practice of using pepper gas

routinely to punish inmates for failing to obey orders or for

"saying something an officer don't like." App. 10. "[M]ajor

problems happen on the white [guards'] shifts, especially

Black inmate's [sic] getting sprayed arbitrarily with pepper

gas." App. 13. Although Appellant complained for over a

year about the abuse of pepper gas, no restraint was placed

on the use of pepper gas. App. 10, 11.

Defendants "know [Appellant has] asthma . .. and

they've seen [him] suffer whenever that pepper gas has

been sprayed." App. 12. The danger faced by Appellant was

not limited to attacks directed against him. Rather, the use

_________________________________________________________________

6. See also Choyce v. Dominguez, 160 F .3d 1068 (5th Cir. 1998)

(remanding for reconsideration of imminent danger determination where

prisoner alleged incident complained of "was only one episode in an

ongoing pattern of threats and violence" in retaliation for prior

litigation).

25

of pepper gas "effects [sic] every inmate . . . in the area".

For example, in December, 1997, Appellant was exposed to

pepper gas directed at other inmates and was taken to the

hospital with an asthma attack. App. 10-11.

In September or October of 1997, in a "deliberate attempt

to have [Appellant] hurt or killed", a guar d told an inmate

that Appellant had "snitched" on him and other inmates.

App. 12. Although Appellant feared for his life as a result of

this incident, his request for protective custody was not

honored. App. 12.

On January 8, 1998 Appellant was transferred to a cell

block with no window "for the express purpose's [sic] of

having [him] in an area where the[racist guards] could

harass, set up and try to kill [him]". The very next day, one

of the defendant guards, again in the pr esence of other

inmates, accused Appellant of informing, and proceeded to

spray him with an entire can of pepper gas, whereupon

Appellant collapsed with an asthma attack, "fighting for

breath on the floor" and the guard"left [him] on the floor to

die."

As far as the record reflects, none of the foregoing

conditions had been corrected at the time Appellant filed

his Complaint.7

In sum, Appellant alleges that at the time of the

Complaint (i) Appellant remained confined in an institution

controlled by guards who believed he did not have any

rights and who had a vendetta against him; (ii) the guards

made a practice of spraying inmates with pepper gas (to

which Appellant was acutely vulnerable) on slight

provocation, and prison officials placed no r estraint on that

practice; (iii) Appellant had been injured twice by pepper

gas within just the past 10 weeks prior to filing; 8 (iv) the

_________________________________________________________________

7. Although many of the foregoing allegations may strike the reader as

improbable, they are as yet uncontr overted, and I believe that we are

required to accept them as true for pr esent purposes. Cf. Gibbs, 116

F.3d at 86 (holding that a district court should accept the allegations in

the Complaint in determining imminent danger for IFP purposes,

pending the appearance of a defendant who may contr overt the

allegations).

8. Cf. Ashley, 147 F.3d at 717 (concluding imminent danger exception

met in part because "complaint was filed very shortly [within one month]

26

guards had incited hostility toward Appellant on the part of

other prisoners by labeling Appellant as an infor mant;9 and

(v) Appellant was housed in a cell block selected to facilitate

attacks by guards and inmates. These unabated conditions

clearly give rise to an ongoing imminent danger .

Hence, I believe the facts alleged in this case place

Appellant squarely within a proper interpr etation of the

exception to the three strikes rule. In Gibbs, as in Ashley

and Choyce, there were similarly sufficient averments of

ongoing danger that remained "imminent" at the time of

filing.10 The majority today disposes of this case, overrules

Gibbs, and effectively disagrees with Ashley and Choyce,

without carefully analyzing the sufficiency of the allegations

of ongoing danger.11

_________________________________________________________________

after the last attack"); Choyce, 160 F .3d at 1071 n. 4 (suggesting

reconsideration in light of erroneous view that 17 months had passed

since last injury, where actually complaint wasfiled in 40 days).

9. Cf. Wolff v. McDonnell, 418 U.S. 539, 562 (1974) ("Relationships

among the inmates are . . . perhaps subject to the unwritten code that

exhorts inmates not to inform on a fellow prisoner. . . . . The reality is

that disciplinary hearings . . . necessarily involve confrontations . . .

between inmates who are being disciplined and those who would charge

or furnish evidence against them. Retaliation is much more than a

theoretical possibility . . . .").

10. See Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (inmates' awareness

of prisoner's status as informer subjected him to threats and attacks;

Gibbs claimed his "life [was] in constant danger" and conditions were

unaddressed until litigation filed; prisoner was transferred during

pendency of appeal); see also supra n. 6 and accompanying text

(discussing Ashley and Choyce).

11. The majority neglects duly to consider the actual averments of

Appellant's complaint, instead observing that "at no point in the present

litigation did Appellant seek to rely on an ongoing danger theory". Supra

at 11 n.1. To the contrary, Appellant's counsel stated at oral argument

that "if you look to the complaint itself, . . . he alleges a continuing

course of conduct." Moreover, Appellant's counsel expressly "embrace[d]"

the argument that the time at which imminent danger is assessed is not

controlling, because "imminent really doesn't mean impending."

In any event, the majority opines as to the sufficiency of allegations of

ongoing harm, and in doing so applies too exacting a standard. Turning

27

The result is that, henceforth in this Cir cuit, prisoners

with three strikes seeking IFP status will be faced with an

insurmountable obstacle: they must show that a serious

physical injury is "about to" befall them"at any moment",

and apparently they may not predicate their showing on an

ongoing risk based on past events.12 What, then, will

suffice? Must a prisoner be running from his attackers as

he files? By limiting the imminent danger exception to the

"sword of Damocles" situation, the majority all but writes

the exception out of the statute. Certainly, the drastically

impoverished version of the exception allowed by the

majority cannot well fulfill its putative office as "a safety

valve . . . to prevent impending harms". Supra at 1113

_________________________________________________________________

briefly to the complaint, the majority expr esses "doubt whether [it]

suffice[s] to establish such an ongoing danger." Supra at 12 n.1. Of

course, under our liberal pleading rules such a doubt should be resolved

for, rather than against, Appellant. Similarly, the majority's observation

that some of Appellant's allegations are "generalized" should not control

our reading of the complaint. Even if those general allegations were not

supported with specific facts, as they are here, a pleading should be

deemed sufficient if it provides reasonable notice of the theories

presented. See Conley v. Gibson, 355 U.S. 41, 47 (1957). This lenity in

pleading review is especially important as applied to an indigent,

incarcerated, pro se litigant whose access to the courts is narrowly

circumscribed.

The majority concludes that Appellant's allegations fall short because

the several acts of which he complains are"unconnected", and do not

form a "pattern". Supra at 12 n.1. A fair reading of the complaint

indicates, however, that the events ar e connected by two alleged ongoing

factors: a long-established practice of arbitrary use of pepper gas

against

black inmates, and a specific animus on the part of the guards against

Appellant. Moreover, in suggesting that the mere passage of time

between the incidents and after the last incident means that the danger

was no longer imminent at the time of filing, the majority disregards the

continuing, unremedied nature of the factors that allegedly caused the

incidents. Indeed, the occurrence of multiple incidents over a substantial

time period supports rather than under mines the conclusion that

Appellant's danger was ongoing.

12. Cf. O'Shea, supra.

13. The majority's narrow reading of the exception will have a far-

reaching effect, as persistent, ongoing imminent danger is a condition all

too often encountered in our nation's prisons. Cf. Wolff, 418 U.S. at 562

(In many prisons, "[g]uards and inmates co-exist in direct and intimate

contact. Tension between them is unremitting. Frustration, resentment

and despair are commonplace.").

28

A prisoner's resort to the courts may be expected to avert

impending danger not only by correcting unlawful

conditions,14 but by deterring prison officials from unlawful

conduct. Under the majority's interpretation, the potential

deterrence of civil rights damages would be lost with

respect to indigent prisoners with a history of prior failed

suits. That is, guards would be free to abuse or retaliate

against such prisoners without fear of civil liability, so long

as their conduct was not so perpetual as to trigger the

majority's test for imminent danger.

The majority's undermining of the protections afforded

civil rights under section 1983 is exacerbated by other

factors which, by delaying access to courts, incr ease the

likelihood that past abuses will effectively be immunized

because a danger will no longer be "imminent" at the time

of filing.15

Finally, even in the rare case that satisfies the majority's

narrow definition of imminent danger at the time of filing,

a prisoner is effectively denied protection against trial error.

Under the majority's interpretation, a prisoner who has

secured a final judgment in the District Court finds himself

in a peculiar position: he must once again meet the

"imminent danger" requirement at that moment in time in

order to file an appeal IFP. It is highly improbable that the

danger would still be "about to" occur at the time of an

appeal, following entry of judgment.

Although the majority opinion purports to cr eate

unanimity among the courts of appeals, it does not and

cannot achieve that purpose. As discussed above, today's

_________________________________________________________________

14. Such correction may occur through formal intervention of the courts

or through voluntary redress in r esponse to a prisoner's invocation of

the

judicial process. Cf. Medberry v. Butler , 185 F.3d 1189 (11th Cir. 1999)

(prisoner subject to physical assaults transferr ed shortly after

complaint

was filed).

15. For example, prisoners who have been thr eatened or attacked are

often subject to administrative solitary confinement or hospitalization,

respectively. Moreover, our recent decisions in Booth v. Churner, 206

F.3d 289, 291 (3d Cir. 2000) and Nyhuis v. Reno, 204 F.3d 65, 67 (3d

Cir. 2000) require the exhaustion of internal prison remedies as a

prerequisite for filing an action underS 1983 or Bivens.

29

holding cannot be reconciled with either the Eighth

Circuit's decision in Ashley or the Fifth Circuit's decision in

Choyce. Those cases evaluated the danger as of the filing

date, but both recognized that the imminent danger

requirement may be satisfied by an ongoing threat

evidenced by past injuries attributable to uncorr ected

conditions. See supra n. 6 and accompanying text.16 We

cannot avoid a conflict by reciting similar standards, while

reaching inconsistent results.

I would hold that the exception applies, in accor d with

Gibbs, Ashley and Choyce; and I would leave for another

day determination of the constitutional validity of section

1915(g) in a case that clearly falls outside of its saving

exception.17 However, since the majority has interpreted the

exception narrowly and has found this case within the rule

barring IFP status, I will proceed to addr ess the statute's

constitutionality.

IV.

As the majority acknowledges, "[s]tatutes that

substantially burden a fundamental right . . . must be

narrowly tailored to serve a compelling governmental

interest. Plyler v. Doe, 457 U.S. 202, 216-17 (1982)." Supra

at 14.18 The right of access to the courts has long been

_________________________________________________________________

16. It should be noted that Choyce took a noticeably different approach

from Banos v. O'Guin, 144 F.3d 883 (5th Cir. 1998), the earlier Fifth

Circuit case relied upon by the majority.

17. "It is a well established rule that needless constitutional

adjudication

is to be avoided, and, toward that end, that when `a construction of the

statute is fairly possible by which the [constitutional] question may be

avoided,' such construction should be given" Roe v. Casey, 623 F.2d 829

(3d Cir. 1980) (Hunter, J., concurring) (quoting Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring)

(additional citations omitted).

18. The same level of scrutiny also applies to laws that impose burdens

based on a "suspect" classification. The majority reasons that neither

prisoners nor indigents are suspect classes. It does not necessarily

follow

that the intersection of these classes -- the class of indigent prisoners

--

is not suspect. After all, possessing neither means nor liberty (and

having incurred the disapprobation of society), indigent prisoners are a

30

deemed fundamental. As long ago as 1215, this right was

articulated in Chapter 29 of the Magna Carta.19 In the

seminal case of Marbury v. Madison, 5 U.S. (1 Cranch) 137,

163 (1803) the Supreme Court observed that"[t]he very

essence of civil liberty certainly consists in the right of

every individual to claim the protection of the laws,

whenever he receives an injury." Mor e recently, the Court

has repeatedly recognized the fundamental importance of

the right of access to courts.20

_________________________________________________________________

discrete, insular minority that is perhaps the group least able to protect

its fundamental rights through majoritarian pr ocesses. Cf. United States

v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938) ("whether

prejudice against discrete and insular minorities may be a special

condition, which tends seriously to curtail the operation of those

political

processes ordinarily to be relied upon to protect minorities, and which

may call for a correspondingly more sear ching judicial inquiry")

(citations

omitted).

19. Chapter 29 of the Magna Carta provided:"To none will we sell, to

none will we deny or delay, right or justice." Magna Carta, c. 29 [c. 40

of King John's Charter of 1215; c. 29 of King Edwar d's Charter of 1297]

(1225), quoted in Burkett v. Cunningham, 826 F.2d 1208, 1219 (3d Cir.

1987). The effect of this guaranty was explained by Sir Edward Coke as

follows:

[E]very subject . . . for injury done to him .. . , by any other

subject,

be he . . . free, or bond, . . . or be he outlawed, . . . or any

other

without exception, may take his remedy by the course of the law,

and have justice, and right for the injury done to him, freely

without

sale, fully without any deniall, and speedily without delay.

Coke, The Second Part of the Institutes of the Laws of England 55

(Brooke, 5th ed. 1797), quoted in Klopfer v. North Carolina, 386 U.S. 213

(1967).

20. See, e.g., Griffin v. Illinois , 351 U.S. 12 (1956) (holding that

state

courts may not deny appellate review to criminal defendants due to their

inability to pay transcript fees); Burns v. Ohio, 360 U.S. 252 (1959)

(requiring states to waive filing fees for indigent prisoners in criminal

cases); Boddie v. Connecticut, 401 U.S. 371, 380 (1971) (extending Griffin

to civil divorce context, reasoning that"a cost requirement, valid on its

face, may offend due process because it operates to foreclose a particular

party's opportunity to be heard."); Johnson v. Avery, 393 U.S. 483, 485-

86 (1969), (striking down ban on prisoners assisting other inmates with

habeas corpus petitions, explaining that "it is fundamental that access of

31

In Wolff, supra, the Supreme Court held that prisoners

have a constitutional right to bring civil rights actions

before the courts. "The right of access to the courts . . . is

founded in the Due Process Clause and assur es that no

person will be denied the opportunity to present to the

judiciary allegations concerning violations of fundamental

constitutional rights." Wolff , 418 U.S. at 579.21

By 1977, the Supreme Court found it to be "beyond

doubt that prisoners have a constitutional right of access to

the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977).22

The Court in Bounds described this right of access as

"fundamental", and held that it requir es that prisoners

receive "a reasonably adequate opportunity to present

claimed violations of fundamental constitutional rights to

the courts." Bounds, 430 U.S. at 825, 828. Finally, in

Lewis, the Court indicated that inmates' right of court

access recognized in Bounds applies to actions "to challenge

the conditions of their confinement". Lewis , 518 U.S. at

355.

As we have previously held, this right of court access

applies even to litigious prisoners such as Appellant. See In

re Oliver, 682 F.2d 443, 446 (3d Cir. 1982), quoted in

Walton, 901 F.3d at 332 ("Access to the courts is a

fundamental tenet to our judicial system; legitimate claims

should receive a full and fair hearing no matter how

litigious the plaintiff may be.").

In view of this long and virtually unbroken array of

_________________________________________________________________

prisoners to the Courts for the purpose of pr esenting their complaints

may not be denied or obstructed", and observing that "a State may not

validly make the writ available only to prisoners who could pay a $4

filing fee."); Wolff,supra (applying holding and rationale ofAvery to

civil

rights actions).

21. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (stating that Wolff

"extended the right of access to the courts" to " `civil rights actions' -

-

i.e., actions under 42 U.S.C. S 1983 to vindicate `basic constitutional

rights.' ").

22. Cf. Lewis, 518 U.S. at 350 (describing the "right of access to the

courts" as "already well-established" when Bounds was decided).

32

authority,23 it can scarcely be disputed that prisoners' right

of access to the courts is a fundamental right. The majority

is doubtless correct in pointing out that the right of access

is "not absolute"; no rights are. What is important for equal

protection purposes is that the right of access is

fundamental, at least when underlying fundamental rights

are involved. See McCarthy v. Madigan, 503 U.S. 140, 153

(1992) ("[T]he right to file a court action might be said to be

[a prisoner's] remaining `most fundamental political right,

because preservative of all rights.' ") (quoting Yick Wo v.

Hopkins, 118 U.S. 356, 370 (1886)).24 Even if access to

courts were not itself a fundamental right, denial of access

should still be subject to strict scrutiny to the extent that

it may impermissibly burden underlying fundamental rights

at stake.25

Indeed, the majority opinion acknowledges that "[a]n

unconditional right of access exists for civil cases. . . when

denial of a judicial forum would implicate a fundamental

human interest". Supra at 15. However, it declines to

address whether Appellant's claims involve fundamental

rights.26

_________________________________________________________________

23. Only twice in our history has the Supr eme Court approved exaction

of fees which had the effect of excluding an indigent would-be party from

court. Both cases involved gratuitous government benefits, rather than

underlying constitutional rights. See United States v. Kras, 409 U.S. 434

(1972) (bankruptcy); Ortwein v. Schwab, 410 U.S. 656 (1973) (welfare).

24. See also Adams v. Carlson, 488 F.2d 619, 630 (7th Cir. 1973) ("[A]n

inmate's right to . . . access to the courts is as fundamental a right as

any other he may hold . . . . All other rights ar e illusory without

it.");

Lewis, 518 U.S. at 405 n.1 (Stevens, J., dissenting) ("Without the ability

to access the courts and draw their attention to constitutionally

improper behavior, . . . prisoners . . . would be deprived of the first --

and often the only -- `line of defense' against constitutional

violations.").

25. See Joshua D. Franklin, Thr ee Strikes and You're Out of

Constitutional Rights? The Prison Litigation Refor m Act's "Three Strikes"

Provision and its Effect on Indigents , 71 U. Colo. L. Rev. 191, 194

("When

an indigent prisoner with three strikes seeks to litigate a matter

affecting

a fundamental interest, any legislation that substantially burdens the

right of access to the courts must be subject to strict scrutiny review,

rather than the more deferential rational relation standard of review.").

26. The majority asserts that Appellant waived his argument that the

right to be free from serious physical injury is as fundamental as the

33

Notwithstanding the majority's avoidance of the issue, it

is manifest that the rights underlying Appellant's suit are

fundamental. As I read the Complaint, at stake are the

rights to be free from arbitrary infliction of serious physical

injury,27 and from racially discriminatory assault.28 That

these rights are fundamental to our constitutional system

cannot be gainsaid.29

_________________________________________________________________

right to divorce (as to which a right of access to court was recognized in

Boddie); but surely an assessment of the importance of the infringed

interest is implicitly part of every due pr ocess or equal protection

challenge. In any event, so long as we are addr essing the level of

scrutiny to apply, we cannot avoid deciding whether a fundamental right

is burdened.

The majority responds that "the importance of the underlying right is

largely immaterial to the question whether that right is a fundamental

interest for Boddie purposes", because "an underlying constitutional

entitlement rises to the level of a Boddie fundamental interest only when

the government blocks the sole legal means for safeguarding that

entitlement . . . ." Supra at 13 n.2. I believe this response conflates

the

elements of fundamental right and burden: the importance of the right

at stake is precisely what determines whether it is "fundamental"; while

the availability of other means to safeguard the right may help to

determine the extent to which the right is bur dened, it has no bearing

on whether the burdened right is fundamental.

27. This right is embodied in the Eighth Amendment prohibition against

cruel and unusual punishments.

28. See Wolff, 418 U.S. at 556 ("Prisoners are protected under the Equal

Protection Clause of the Fourteenth Amendment from invidious

discrimination based on race.").

29. Although the majority marshalls to its support cases from five other

circuits which have applied a rational basis r eview to section 1915(g),

four of these cases were explicitly premised on the absence of an

underlying fundamental interest. See Carson v. Johnson, 112 F.3d 818,

821 (5th Cir. 1997) (holding prisoner had no fundamental interest in

subject of suit); Rivera v. Allin, 144 F .3d 719, 724 (11th Cir. 1998)

("Rivera's well-pled allegations . . . plainly advance no cognizable

fundamental interest."); Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th

Cir. 1999) (agreeing with Carson and Rivera that "where a fundamental

interest is not at stake, section 1915(g) does not infringe upon an

inmate's meaningful access to the courts"); White v. Colorado, 157 F.3d

1226, 1233-34 (10th Cir. 1998) (recognizing right of action extends to

suits seeking to vindicate basic constitutional rights, but concluding

that

34

Moreover, other fundamental rights ar e sure to be

implicated in cases barred by the three strikes rule. For

example, a suit charging denial of a prisoner's religious

freedom in violation of the First Amendment is not likely to

involve an element of imminent danger, and so will fall

outside of the exception under section 1915(g). See, e.g.,

Lyon v. Krol, 940 F. Supp. 1433, 1437 (S.D. Iowa 1996),

appeal dismissed, 127 F.3d 763 (8th Cir . 1997) (dismissing

prisoner's free exercise of religion claim pursuant to three

strikes rule). Cf. O'Lone v. Estate of Shabazz , 482 U.S. 342,

348 (1987) (recognizing prisoner's fundamental right to free

exercise of religion).30

It seems clear that section 1915(g) substantially burdens

affected prisoners' access to the courts and thereby

burdens their enjoyment of whatever underlying rights they

may seek to enforce in court. The statute's ef fect, in

contravention of our law going back to the Magna Carta, is

either to sell, to delay or to deny justice to the prisoners

subject to its strictures.31 If they cannot buy entry into

court, they must wait until they can; and if the wait is too

long, justice will be denied to them.32

_________________________________________________________________

prisoner failed to state a claim for violation of the Eighth Amendment).

The fifth case, Wilson v. Yaklich , 148 F.3d 596 (6th Cir. 1998),

acknowledged that the constitutional right of access to the courts "is

indeed `fundamental' " and that a prisoner's access must be "adequate,

effective and meaningful", but found that the right was not infringed

solely because the prisoner still had recourse to state court. Id. at 605

(citations omitted).

30. See also Stacey H. O'Bryan, Note, Closing the Courthouse Door: The

Impact of the Prison Litigation Reform Act's Physical Injury Requirement

on the Constitutional Rights of Prisoners, 83 V a. L. Rev. 1189, 1202-10

(1997) (mentioning the right to be free fr om racial segregation, the

right

to privacy, and the right to be free fr om non-physical violations of the

Eighth Amendment as among those left unprotected as to prisoners

barred from litigation by section 1915(g)).

31. Cf. n.19, supra (discussing Magna Carta's prohibition against sale,

delay or denial of justice).

32. According to the majority, Congress "[r]ecogniz[ed] that it could take

prisoners a significant period of time to obtain the filing fee in some

cases". Supra at 11.

35

In response to the apparent burden on fundamental

rights, the majority makes two arguments: First, the

majority argues that section 1915(g) does not prevent

affected prisoners from filing their actions, but only from

enjoying IFP status. The same argument was pr eviously

made by the Eleventh Circuit. See Rivera v. Allin, 144 F.3d

719, 723 (11th Cir. 1998). This argument reflects a

surprising disregard for the practicalfinancial constraints

faced by indigent prisoners, and appears to ignor e the

reality, recognized by the Supreme Court, that even a small

prepayment obligation can pose an insur mountable hurdle.

See Boddie, 401 U.S. at 380 (acknowledging that a facially

valid fee may "offend due process because it operates to

foreclose a particular party's opportunity to be heard.");

Green, 669 F.2d at 786 (describing a prepayment

requirement as a "potentially pr ohibitive financial barrier"

to court access on the part of the affected indigent

prisoner). The majority does not, however, r eally miss this

point: in the very same paragraph in which it ar gues that

section 1915(g) does not block access to the federal courts,

it concludes that precluding suit in federal court as a

practical matter is precisely what Congr ess intended. See

supra at 10-11.33

Because it ultimately recognizes the practical reality that

access to the federal courts will be delayed or denied for

some, the majority repairs to its second ar gument: that

foreclosing the federal forum imposes no r eal burden, as

prisoners may bring the same civil rights claims in state

courts, "where limitations on filing I.F .P. may not be as

strict." Supra at 10 (emphasis added); see also supra at 15.

In the end, the majority's rejection of strict scrutiny is

expressly predicated on the presumed availability of a state

law forum.34 See supra at 16 ("Because neither Delaware

substantive law nor Delaware court rules pr evented

_________________________________________________________________

33. See also Banos, 144 F.3d at 885 n. 1 ("It is possible that a potential

litigant who is denied IFP status under this pr ovision will not have the

ability to pay the entire filing fee within the statute of limitations or,

in

the case of an appeal, within the time for filing an appeal, and will

thereby be precluded from litigating or appealing his case on the

merits.").

34. As the majority correctly observes, the Court's ruling in Boddie

turned on the State's monopoly over divor ce actions and the resultant

absence of any "recognized, effective alternatives" for resolution.

Boddie,

401 U.S. at 375-76. The case does not, however , stand for the

proposition that availability of a state forum justifies selective denial

of

access to a federal forum for the vindication of federal civil rights

claims.

36

[Appellant] . . . from pursuing his claims, we do not agree

that strict scrutiny is the appropriate test.") (emphasis

added).35 See also Wilson v. Yaklich, 148 F.3d 596, 605 (6th

Cir. 1998) (concluding that prisoner's fundamental right of

access to the courts was not infringed upon because he

"still had available . . . the opportunity to litigate his federal

constitutional causes of action in forma pauperis in state

court."). But cf. Rivera, 144 F.3d at 724 n.9 (declining to

place reliance on availability of state forum).

Even assuming that a state forum is available, however,

it is by no means clear that denial of a federal forum does

not in itself impose a substantial burden on the right of

access. See, e.g., Lyon, 940 F .Supp. at 1437-38 ("Although

inmates can also bring S 1983 claims in state court,

plaintiffs have an important interest in access to federal

courts for vindication of their federal constitutional

rights."); see also Procup, 792 F .2d at 1070 ("An absolute

bar against a prisoner filing any suit in federal court would

be patently unconstitutional."); Green , 669 F.2d at 786

(concluding that "constitutional right of access to the

courts" was "unduly impair[ed]" by or der that effectively

denied "any and all access to the district court"); Packer

Avenue Assocs., 884 F.2d at 748 (holding that order

prohibiting subsequent filings in federal court could "not be

allowed to stand").36

_________________________________________________________________

35. If, as appears to be the case, the statute's constitutionality as

applied

to suits based on fundamental rights hinges on the availability of an

adequate state forum, we should make this limitation explicit in order to

guide the District Courts.

36. The argument that federal courts may turn a deaf ear to those who

have access to state courts "disregar ds the historic importance of access

to federal courts to pursue civil rights claims under 42 U.S.C. S 1983."

Lukens, The Prison Litigation Reform Act , 70 Temp. L. Rev. at 512. Cf.

Monroe v. Pape, 365 U.S. 167, 174 (1961) (one purpose of S 1983 "was

to provide a federal remedy where the state remedy, though adequate in

theory, was not available in practice"); McCarthy, 503 U.S. at 153

("federal courts must take cognizance of the valid constitutional claims

of prison inmates") (citations omitted).

It is important to note that the Supreme Court has expressly rejected

the converse argument that the availability of a federal remedy justified

a filing fee that effectively barred indigent prisoners from state court.

See

37

Although the alternative forum argument may have

superficial appeal, I do not believe it can withstand

searching examination. In the first place, the argument

neglects to consider foreclosure of the courts to the "three-

strikes" prisoner in states which have adopted parallel

legislation.37 This is not mer ely an academic concern. The

Commonwealth of Pennsylvania appeared as an amicus

curiae in this case and explained that the "many thousands

of prisoners" housed in Pennsylvania's thirty-nine

correctional facilities "annually file hundreds of federal civil

actions directed against state officials and employees", and

implied that a substantial number of those actions would

be affected by the decision announced her ein. Because

Pennsylvania has adopted a three strikes limitation of IFP

status that parallels section 1915(g), ther e is no judicial

forum available to indigent Pennsylvania prisoners with

three strikes unless they can satisfy the majority's virtually

preclusive test for imminent danger, no matter how

meritorious their claims and no matter how fundamental

the rights at stake.38

In the second place, the alternative forum ar gument also

neglects the potential implications of removal to federal

court. Federal-law civil rights actions filed in state court

generally may be removed by the defendants, with the likely

_________________________________________________________________

Smith v. Bennett, 365 U.S. 708 (1961). T o paraphrase the Court's

admonition, "it would ill-behoove this gr eat [nation], whose devotion to

the equality of rights is indelibly stamped upon its history, to say to

its

indigent prisoners seeking to redress what they believe to be [violations

of federal law]: `go to the [state] court.' " Id. at 713.

37. See, e.g., 41 Pa. C.S.A. S 6602(f) (West Supp. 1999); La. Rev. Stat.

Ann. S 1187 (West Supp. 1999). See also Laurie Smith Camp, Why

Nebraska Needs Prison Litigation Reform, 76 Neb. L. Rev. 781, 781

(1997) (proposing parallel state legislation in Nebraska); Three Strikes,

71

U. Colo. L. Rev. at 209-210 (predicting that"[o]ther states are likely to

respond similarly to the influx of claims br ought by [prisoners] who are

otherwise precluded from bringing suit in forma pauperis").

38. In its amicus brief, Pennsylvania ar gues that a state forum is

available, but inexplicably neglects to notify us that the purported

alternative is generally unavailable to Pennsylvania prisoners with claims

concerning prison conditions.

38

effect that an indigent plaintiff subject to the three strikes

rule would lose his ability to appeal.39 The prospective loss

of such an important procedural safeguar d is a very

substantial burden on affected litigants. 40

Because section 1915(g) does impose a substantial

burden on the fundamental rights of many if not all

members of the class against whom it is directed, the next

step is to examine whether it is narrowly tailored to serve

a compelling governmental interest.

As identified by the majority, the congressional purpose

behind section 1915(g) was to deter frivolous lawsuits

through "economic incentives that would pr ompt prisoners

to `stop and think' before filing a complaint." Supra at 17.

See also supra at 10 ("The `three strikes' rule . . . supplied

a powerful economic incentive not to file frivolous lawsuits

or appeals.").41 It is not at all apparent how "disqualifying

frequent filers who have failed in the past to carefully

_________________________________________________________________

39. See The Prison Litigation Reform Act, 70 Temp. L. Rev. at 513-517

(observing that if defendant removes the case to federal court as

permitted under 28 U.S.C. S 1441, plaintiff may lose his right to appeal

the federal claims if he is within the provisions of section 1915(g) and

cannot afford prepayment in full; he may also be unable to appeal

pendent state claims over which the district court exercised

jurisdiction).

40. See Griffin, 351 U.S. at 18 ("It is true that a State is not required

by

the Federal Constitution to provide appellate courts or a right to

appellate review at all. But that is not to say that a State that does

grant

appellate review can do so in a way that discriminates against some

convicted defendants on account of their poverty."); See also Three

Strikes, 71 U. Colo. L. Rev. at 209 (noting that"[a]lthough the right to

an appeal is not constitutionally guaranteed, equal protection concerns

nevertheless arise when this right is effectively denied to only one class

of litigant") (citing Douglas v. Califor nia, 372 U.S. 353, 357-58

(1963)).

41. Cf. Frank I. Michelman, The Supr eme Court and Litigation Access

Fees: The Right to Protect One's Rights - Part II, 1974 Duke L.J. 527, 559

(observing that a fixed fee's deterrent ef fect on frivolous filings will

vary

inversely with the individual's finances, with the truly indigent being

"totally `deterred' "). Michelman concludes that " `Deterrence' in any

acceptable sense of that term, can be depended upon to operate only on

that group of citizens to whom [the fee] will seem neither a prohibitive

sum, nor, on the other hand, a trifling amount to pay for the privilege of

demanding one's rights." Id.

39

evaluate their claims" can serve as a "deterr ent

mechanism". Supra at 17 (emphasis added). No matter how

long a disqualified prisoner such as Appellant stops, no

matter how carefully he thinks, and no matter how

meritorious his claims, he will remain disqualified. It is

simply not possible to deter frivolous filings that have

already occurred. At a minimum, ther efore, the

retrospective application of the thr ee strikes rule to past

filings cannot further the statute's asserted deterrent

purpose.42

With respect to future filings, it is difficult to see how the

three strikes rule functions solely as an economic deterrent.

To be sure, another section of the PLRA is well calculated

to have that effect. See 28 U.S.C.S 1915(b) (requiring

prisoners with IFP suits to pay filing fee in installments, in

lieu of prior practice of waiving fee). This section corrects

the perceived problem of inmates filing suits with no

financial consequences, while at the same time ensuring

that the truly indigent prisoner will not be denied access to

the courts solely because he lacks the requisite funds.43

The disincentive supplied by the three strikes rule, on the

other hand, is not purely economic. For the truly indigent,

the rule threatens a loss of the fundamental right of access

to the courts. This is in no sense a market-corr ecting

economic deterrent.44

_________________________________________________________________

42. In the present case, according to the District Court, only one of

Appellant's disqualifying dismissals occurred after the effective date of

the PLRA. App. 20.

43. See 28 U.S.C. S 1915(b)(4) (Supp. III 1997) (providing that "[i]n no

event shall a prisoner be prohibited fr om bringing a civil action or

appealing a civil or criminal judgment for the r eason that the prisoner

has no assets and no means by which to pay the initial partial filing

fee."). This saving provision is inapplicable to prisoners subject to

section

1915(g).

44. The majority's discussion does not say how the three strikes rule is

supposed to further deterrence. Instead, it seems to say that the three

strikes rule is rationally related to its goal because it is within

congressional power. See supra at 18 ("Preventing frequent filers from

obtaining fee waivers is rationally related to the legitimate government

interest of deterring frivolous lawsuits because `Congress is no more

compelled to guarantee free access to federal courts than it is to provide

unlimited access to them.' "). This is patently a non sequitur.

40

In any event, even assuming that the goal of deterring

frivolous suits is a compelling governmental interest, and

that the three strikes rule somehow furthers that goal, the

statute nevertheless cannot withstand strict scrutiny

because at best there is only a very poor fit between end

and means. As a mechanism for deterring frivolous claims,

section 1915(g) is both under- and over -inclusive. On the

one hand, it leaves unchecked the flow of frivolous lawsuits

filed by indigent non-prisoners and by prisoners and non-

prisoners with sufficient funds.45 On the other hand, it cuts

off non-frivolous claims filed by indigent prisoners within

its scope. See supra at 10 ("In stark ter ms, . . . the I.F.P.

privilege will not be available . . . no matter how

meritorious subsequent claims may be.").46 These

shortcomings precisely echo those of the pr epayment

requirements disapproved in Green and its progeny.47 Cf.

Rinaldi v. Yeager, 384 U.S. 305, 310 (1966) (state statute

requiring reimbursement of cost of criminal appeal

transcript only as to prisoners held unconstitutional:

"Assuming a law enacted to [deter frivolous appeals] to be

otherwise valid, the present statutory classification is no

less vulnerable under the Equal Protection Clause when

_________________________________________________________________

45. See, e.g., Mary Tushnet and Larry Y ackle, Symbolic Statutes and Real

Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act

and the Prison Litigation Reform Act, 47 Duke L. J. 1 (Oct. 1997)

("[N]otably, the statute allows any prisoner who can pay the complete

filing fee in advance to file as many frivolous or malicious lawsuits as

she wants.").

46. Compare Watson, 901 F.2d 329, 331 (finding denial of constitutional

right where blanket bar to IFP filings failed to "consider[ ] the effects

on

a legitimate claim").

47. Illustrating the "general inappropriateness of withdrawing the in

forma pauperis privilege as a means to curtail. . . abuse", the Green

court observed:

On the one hand, Green is totally free toflood the courts with

paper

provided that he pays the going rate: or ders erecting financial

barriers are only as effective as the litigant is truly

impoverished. On

the other hand, these restrictions are clumsily overinclusive: if

Green does not have the money to file a frivolous claim, he also

does

not have the money to file a legitimate one.

669 F.2d 779.

41

viewed in relation to that function. By imposing a financial

obligation only upon inmates of institutions, the statute

inevitably burdens many whose appeals, though

unsuccessful, were not frivolous, and leaves untouched

many whose appeals may have been frivolous indeed.")

Moreover, much better targeted means are available to

arrest chronic frivolous filings.48

It is therefore not surprising that courts which have

applied strict scrutiny have found section 1915(g) wanting.

See Lyon, 940 F. Supp. 1433 (S 1983 action alleging denial

of participation in Jewish services and other r eligious

practices);49 Ayers v. Norris , 43 F.Supp.2d 1039 (E.D. Ark.

1999). See also Wilson, 148 F.3d at 604 (upholding section

1915(g) under a rational basis test, but noting the court

"might not believe [S 1915(g)] to be . . . even a prudent[ ]

response to the problem presented").50

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48. The injunction that apparently r emains in effect against Appellant,

setting special filing preconditions in r esponse to his history of abuse,

is

but one example. See supra at 4. Another example is the PLRA's own

provision for judicial screening. Under section 1915A, a court may review

and assess the merit of a prisoner's claims befor e docketing. See 28

U.S.C. S 1915A(a)-(b) (Supp. III 1997). These measures, directed at

particular abusers and particular frivolous claims, are clearly more

narrowly tailored to serve their pr oper end than the three strikes

classification, which lumps good faith err or with abuse and stifles

meritorious claims along with frivolous ones. See Lukens, The Prisoner

Litigation Reform Act, 70 Temp. L. Rev. at 505-06 (observing that

"Section 1915(g) . . . treats the prisoner who has filed otherwise

meritorious claims, but failed to name the pr oper party, . . . in the

same

manner as the litigant who sued the President .. . for stealing the

multiplication tables from him.")

49. The District Court in Lyon noted that, unlike the traditional

discretionary power of the courts to limit abusive litigation by an

individual prisoner based on his particular cir cumstances, the "three

dismissal rule" gave no consideration to, e.g., length of incarceration,

number of meritorious actions, or "other pertinent information that

might guide a federal court in properly limiting abuse . . . ." Lyon, 940

F. Supp. at 1438. Applying a strict scrutiny review, the District Court

held section 1915(g) violative of equal pr otection. The Eighth Circuit

undertook no constitutional review, finding instead that the plaintiff

lacked standing because he had sufficient funds.

50. The majority's response that constitutional constraints require

"neither a perfect nor even best availablefit" between statutory ends and

42

Because section 1915(g) is not narrowly tailor ed to serve

a compelling governmental purpose, its substantial

infringement of indigent prisoners' fundamental right of

access to the courts, and of the constitutional rights at

stake in the potential litigation thwarted ther eby, amounts

to an unconstitutional deprivation of the equal pr otection of

the laws and of the due process of law guaranteed by the

Fifth Amendment.51 Cf. Romer v. Evans, 517 U.S. 633

(1996) ("A law declaring that in general it shall be more

difficult for one group of citizens than for all others to seek

aid from the government is itself a denial of equal

protection of the laws in the most literal sense.").52

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means, supra at 18, quoting United States v. Mariani, 212 F.3d 761, 774

(3d Cir. 2000) (en banc), is not entir ely apt. Section 1915(g) is not

constitutionally deficient because it is mer ely imperfect or sub-optimal;

rather, its very high degree of both under- and over-inclusiveness

renders it an extremely poor fit. Cases such as Mariani, which permit a

certain degree of under-inclusiveness in statutes that burden First

Amendment rights, therefore do not advance the inquiry. In the context

of an equal protection challenge to a bur den on access to the courts, the

Supreme Court has found the same type of under - and over-

inclusiveness at issue here to be constitutionally impermissible. See

Rinaldi, supra at 41-42.

51. This conclusion is in accord with an apparent consensus among

commentators who have addressed the constitutionality of the PLRA's

three strikes provision. See, e.g., Lukens, The Prison Litigation Reform

Act, supra n. 36; Franklin, Three Strikes, supra n. 25; David C.Leven,

Justice for the Forgotten and Despised, 16 Touro L. Rev. 1, 15 (Fall

1999); Mary Tushnet and Larry Yackle, Symbolic Statutes and Real Laws:

The Pathologies of the Antiterrorism and Ef fective Death Penalty Act and

the Prison Litigation Reform Act, 47 Duke L. J. 1, 70 (Oct. 1997); Simone

Schonenberger, Access Denied: The Prison Litigation Reform Act, 86 Ky.

L. J. 457 (1997-1998); Catherine G. Patsos, The Constitutionality and

Implications of the Prison Litigation Reform Act, 42 N.Y.L. Sch. L. Rev.

205 (1998).

52. In addition to its infirmity on equal protection grounds, section

1915(g) raises troubling questions concer ning the constitutional

prohibition against bills of attainder and ex post facto laws, in that it

operates as an extra-judicial punishment against an identified group

based on their past conduct. As noted by the majority, the three strikes

43

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

rule seeks to deter prisoner litigation by "disqualifying frequent filers

who have failed in the past to carefully evaluate their claims prior to

filing." Supra at 17. Cf. Hughes Aircraft Co. v. United States, 520 U.S.

939, 947 (1997) (stating that a statute which "attaches a new disability,

in respect to transactions . . . already past, must be deemed

retrospective") (quoting Soc. for Propagation of the Gospel v. Wheeler, 22

F. Cas. 756, 767 (No. 13,156) (C.C.N.H. 1814) (Story, J.)).

The Supreme Court has identified three r equirements for finding that

a challenged statute is a bill of attainder: "specification of the

affected

persons, punishment, and lack of a judicial trial." Selective Service

System v. Minnesota Public Interest Resear ch Group, 468 U.S. 841, 847

(1984). As to the first element, section 1915(g) plainly is directed

toward

"specifically designated persons or groups". Id., quoting United States v.

Brown, 381 U.S. 437, 447 (1965). The af fected prisoners are identified by

an objectively ascertainable, immutable characteristic -- three or more

prior "strikes" -- and are commonly r eferred to in cases and

congressional debate by a common pejorative title ("frequent filers"). As

to the second element, the majority appears to acknowledge a punitive

purpose and effect: "Potentially negative consequences in federal courts

. . . are precisely the consequences intended by Congress. The outcome

predicted by Appellant [i.e., that a prisoner "could forever lose his

ability

to bring his suit as a practical matter"] is . .. exactly what Congress

intended." Supra at 10-11. Cf. Green, 669 F.2d at 786 (characterizing as

"simply punitive" a prepayment requirement which "is not geared to

discerning whether each claim presents a new nonfrivolous issue" and

whichs seeks to "deter" by "assum[ing]" that the affected prisoner "will

not be able to meet the required filing fee"). Finally, as to the third

element, section 1915(g) imposes its deprivation without any judicial

trial. Cf. Lyon, 940 F. Supp. at 1438 (contrasting blanket bar of section

1915(g) with particularized discretion attendant on judicial proceeding to

limit abusive litigation).

44