Edward Ray, Jr. v. E. Lara

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD VINCENT RAY, JR., No. 19-17093

Plaintiff-Appellant,

D.C. No.

v. 5:19-cv-01298-EJD

E. LARA,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Argued and Submitted December 7, 2021

San Francisco, California

Filed April 11, 2022

Before: Carlos F. Lucero, * Sandra S. Ikuta, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Lucero

*

The Honorable Carlos F. Lucero, United States Circuit Judge for

the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

2 RAY V. LARA

SUMMARY **

Prisoner Civil Rights

The panel affirmed the district court’s denial of a state

prisoner’s motion to proceed in forma pauperis in an action

brought pursuant to 42 U.S.C. § 1983 alleging unlawful mail

tampering.

The district court determined sua sponte that plaintiff

was barred from proceeding in forma pauperis (IFP) under

the “three-strikes” provision of the Prison Litigation Reform

Act (PLRA), 28 U.S.C. § 1915(g), and rejected plaintiff’s

contention that he was under imminent danger of serious

physical injury, an exception which allows prisoners to

proceed IFP notwithstanding the three-strikes rule. When

plaintiff failed to pay the filing fee, the court dismissed the

action.

The panel first rejected plaintiff’s assertion that the

district court erred by failing to provide him an opportunity

to be heard on the § 1915(g)’s three-strikes bar as required

by Andrews v. King, 398 F.3d 1113 (9th Cir. 2005) (Andrews

I). The panel held that the district court clearly identified the

three prior dismissals in its order denying plaintiff’s motion

to proceed IFP. Having placed plaintiff on notice of the three

cases that constituted strikes, Andrews I was satisfied. Thus,

the district court did not err by denying plaintiff’s motion

without providing him a further opportunity to be heard.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

RAY V. LARA 3

The panel held that the district court properly assessed

three strikes based on plaintiff’s prior dismissals. The first

two dismissals, pursuant to Heck v. Humphrey, 512 U.S. 477

(1994), qualified as strikes because the Heck bar was facially

obvious from the face of plaintiff’s complaints. The district

court properly assessed the third strike, involving a dismissal

on the basis of absolute prosecutorial immunity, because it

was an exceptional case where the affirmative immunity

defense was readily apparent without resort to any additional

information outside the four corners of the complaint.

Finally, addressing the imminent danger exception to

§ 1915(g), the panel joined three other circuits and held that

the text, context, and purpose of the PLRA mandate that the

imminent danger exception to § 1915(g) requires a nexus

between the alleged imminent danger and a prisoner’s

complaint. Applying this nexus requirement to the case at

bar, it was clear that plaintiff did not qualify for the imminent

danger exception.

COUNSEL

Benjamin G. Barokh (argued), Munger Tolles & Olson LLP,

Los Angeles, California; Elaine J. Goldenbergh, Munger

Tolles & Olson LLP, Washington, D.C.; for Plaintiff-

Appellant.

Misha Igra (argued), Supervising Deputy Attorney General;

Jaime Ganson, Deputy Attorney General; Monica N.

Anderson, Senior Assistant Attorney General; Matthew

Rodriquez, Acting Attorney General; Office of the Attorney

General, Sacramento, California; for Defendant-Appellee.

4 RAY V. LARA

OPINION

LUCERO, Circuit Judge:

Appellant Edward Vincent Ray, Jr., a state prisoner,

alleged that a corrections officer unlawfully tampered with

his mail. Ray moved pro se to proceed in forma pauperis

(IFP), but the district court denied his motion upon finding

that he was barred from proceeding IFP under the “three-

strikes” provision of the Prison Litigation Reform Act

(PLRA). 28 U.S.C. § 1915(g). In its denial, the district court

specifically rejected Ray’s contention that he was under

imminent danger of serious physical injury, an exception

which allows prisoners to proceed IFP notwithstanding the

three-strikes rule. When Ray failed to pay the filing fee, the

court dismissed the action.

This appeal poses two questions: (1) did the district

court properly attribute three strikes to Ray; and (2) must an

allegation of imminent danger relate to a prisoner’s

underlying claim to defeat the PLRA’s three-strikes bar?

We conclude that the district court’s three-strikes

determination was substantively and procedurally correct.

Further, we hold that the imminent danger exception to

§ 1915(g) requires a nexus between the alleged imminent

danger and a prisoner’s complaint. Because Ray failed to

establish this nexus, he is barred from proceeding IFP.

Exercising jurisdiction under 28 U.S.C. § 1291, we

AFFIRM.

I

Ray, a California state prisoner, filed a pro se complaint

under 42 U.S.C. § 1983, alleging that corrections officer E.

Lara censored and confiscated his mail in violation of the

First and Fourteenth Amendments to the United States

RAY V. LARA 5

Constitution. His complaint further alleged that he was

under imminent danger of serious physical injury because he

was housed with general population inmates despite his

classification as a “Sensitive Needs Yard inmate.” 1 Ray

filed a motion to proceed IFP on the same day he filed his

pro se complaint.

The district court screened Ray’s complaint pursuant to

the PLRA and denied Ray’s motion to proceed IFP. See

28 U.S.C. § 1915A. It determined that Ray was barred from

proceeding IFP under § 1915(g), which provides that:

In no event shall a prisoner bring a civil

action or appeal a judgment in a civil action

or proceeding [IFP] if the prisoner has, on 3

or more prior occasions, while incarcerated

or detained in any facility, brought an action

or appeal in a court of the United States that

was dismissed on the grounds that it is

frivolous, malicious, or fails to state a claim

upon which relief may be granted, unless the

prisoner is under imminent danger of serious

physical injury.

According to the district court, Ray was subject to the three-

strikes provision due to prior dismissals in: (1) Ray v.

Farrell, No. 3:10-cv-00823-SI (N.D. Cal. Sept. 1, 2010);

(2) Ray v. Basa, No. 3:10-cv-00895-SI (N.D. Cal. Sept. 1,

2010); and (3) Ray v. Friedlander, No. 3:10-cv-01107-SI

(N.D. Cal. Sept. 1, 2010). In addition, the district court

determined Ray did not qualify for the imminent danger

1

Sensitive Needs Yard inmates are typically housed apart from

general population inmates because they are under protective custody

status.

6 RAY V. LARA

exception because he failed to establish a nexus between his

complaint and alleged imminent danger.

In its decision, the district court noted that it was

permitted to raise the § 1915(g) deficiency sua sponte,

provided that Ray was given notice of which earlier

dismissals were counted as strikes and an opportunity to be

heard. 2 See Andrews v. King, 398 F.3d 1113 (9th Cir. 2005)

(Andrews I). Ray was ordered to pay the full filing fee within

fourteen days. After he failed to contest the district court’s

three-strikes determination or timely pay the filing fee, his

action was dismissed. Ray filed a timely pro se notice of

appeal in this court and moved to proceed IFP on appeal. In

his appellate IFP motion, Ray argued that he was transferred

to mixed population prison housing in retaliation for filing a

grievance against Lara. A two-judge panel determined Ray

had alleged imminent danger of serious physical injury and

granted his motion to proceed IFP. After Ray filed his

opening brief, we appointed pro bono counsel to represent

Ray and directed the parties to address whether § 1915(g)

requires a nexus between a plaintiff’s claims and alleged

imminent danger.

II

We review a district court’s interpretation and

application of the PLRA three-strikes provision de novo.

Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048,

1054 (9th Cir. 2016). We begin by addressing whether the

district court was required to provide Ray additional

opportunity to be heard on the three-strikes bar under our

2

The district court concluded that Ray had an opportunity to be

heard with respect to his imminent danger allegations because the court

fully considered his complaint before ruling on the IFP motion.

RAY V. LARA 7

decision in Andrews I, 398 F.3d 1113. Concluding that no

additional process was required, we then consider whether

Ray has accumulated three strikes.

A

Ray argues the district court erred by failing to provide

him an opportunity to be heard on § 1915(g)’s three-strikes

bar as required by Andrews I. He contends the district court

was required to either issue an order to show cause

identifying three strikes or grant leave to refile his IFP

request. However, Andrews I involved a very different

procedural posture. In that case, defendants moved for

summary judgment after the district court granted prisoner-

plaintiff’s motion to proceed IFP. Id. at 1116. They argued

Andrews was barred from proceeding IFP under § 1915(g),

attaching docket records from over twenty dismissed actions

that he brought while incarcerated. Id. The district court

granted defendants’ motion and dismissed his action without

prejudice. Id. at 1117.

We reversed on appeal, holding that when a defendant

challenges a prisoner-plaintiff’s IFP status, the defendant

carries the burden of production to show that plaintiff is

barred from such status by § 1915(g). Id. at 1120. Upon

making this showing, the burden shifts to prisoner-plaintiff

to explain why prior dismissals should not count as strikes

under the statute. Id. We determined that the defendants in

Andrews I had not met their burden of production, as the

appended dockets did not establish that prior actions were

dismissed because they were “frivolous, malicious or

fail[ed] to state a claim.” Id. (quoting § 1915(g)).

By contrast, Ray was never granted IFP status and

defendant Lara did not raise the three-strikes bar before the

district court. Instead, the court raised § 1915(g)’s bar sua

8 RAY V. LARA

sponte during screening and denied Ray’s motion to proceed

IFP. Thus, the burden-shifting framework outlined in

Andrews I is inapposite. Moreover, Andrews I expressly

agreed with the Seventh Circuit’s approach in Evans v.

Illinois Department of Corrections, 150 F.3d 810 (7th Cir.

1998). See Andrews I, 398 F.3d at 1120. Evans held that a

district court order denying a motion to proceed IFP must

identify three cases found to constitute strikes in order to

satisfy the court’s notice obligation. Evans, 150 F.3d at 811–

12. Our express approval of Evans undercuts any suggestion

that Andrews I announced a rule that prisoner-plaintiffs must

be given an additional opportunity to respond to a district

court’s sua sponte adverse three-strikes determination. 3

In this case, the district court clearly identified three prior

dismissals in its order denying Ray’s motion to proceed IFP.

Having placed Ray on notice of the three cases that

constituted strikes, Andrews I was satisfied. See 398 F.3d

at 1120. No part of the relevant statute required the court to

provide Ray any additional process. See 28 U.S.C. § 1915.

Thus, the district court did not err by denying Ray’s motion

without providing him a further opportunity to be heard.

B

We next consider whether Ray has accumulated three

strikes under § 1915(g). A prior lawsuit constitutes a strike

when it “was dismissed on the grounds that it is frivolous,

malicious, or fails to state a claim upon which relief may be

granted.” § 1915(g). “[I]f a case was not dismissed on one

of the specific enumerated grounds, it does not count as a

strike under § 1915(g).” Harris v. Harris, 935 F.3d 670, 673

3

Of course, Ray could have moved for reconsideration before the

fourteen-day period to pay the filing fee expired, but he failed to do so.

RAY V. LARA 9

(9th Cir. 2019). On appeal, Ray argues he should be allowed

to proceed IFP because the cases raised by the district court

are not strikes under the statute.

Our analysis begins with the first two dismissals cited by

the district court, Ray v. Farrell, No. 3:10-cv-00823-SI

(N.D. Cal. Sept. 1, 2010), and Ray v. Basa, No. 3:10-cv-

00895-SI (N.D. Cal. Sept. 1, 2010). Both were dismissed

pursuant to the Supreme Court’s decision in Heck v.

Humphrey, 512 U.S. 477 (1994). In Heck, the Court held

that a § 1983 damages claim is not cognizable when success

on the action would imply the invalidity of a conviction or

sentence that has not been reversed or otherwise invalidated.

Id. at 486–87. We have held that a Heck dismissal “may

constitute a PLRA strike for failure to state a claim when

Heck’s bar to relief is obvious from the face of the complaint,

and the entirety of the complaint is dismissed for a qualifying

reason under the PLRA.” Washington, 833 F.3d at 1055.

Thus, we must consider the complaints in Farrell and Basa

to determine whether Heck’s bar to relief was facially

obvious in each case. 4

4

Appellee Lara filed a motion requesting judicial notice of court

documents from several cases filed by Ray, including the complaint from

Basa. Dkt. 31, Ex. E, at 45–56. We may take judicial notice of district

court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir.

1980); Fed. R. Evid. 201. Lara’s motion requesting judicial notice is

GRANTED with respect to Exhibit E, which contains the Basa

Complaint. The motion is DENIED as moot with respect to the

remaining exhibits because, as we explain below, we conclude Ray has

accumulated three strikes based on the dismissals cited by the district

court.

Although neither party requested judicial notice of the complaint in

Farrell, this court “may take judicial notice on its own.” Fed. R. Evid.

201(c)(1). We therefore take judicial notice of the complaint and

10 RAY V. LARA

In Farrell, Ray alleged that a deputy district attorney

withheld exculpatory evidence and violated his Sixth

Amendment right to confront adverse witnesses during his

criminal trial. Farrell Complaint, at 2. The district court

dismissed the complaint in its entirety, determining that

Ray’s claims were “squarely within the Heck rule because

success on them would call into question the validity of his

conviction that is now in place.” Farrell, No. 3:10-cv-

00823-SI, 2010 WL 3448316, at *2 (N.D. Cal. Sept. 1,

2010). 5 Ray contends that, although Farrell was dismissed

pursuant to Heck, the Heck bar was not facially obvious

because the complaint did not explicitly mention the status

of his conviction.

We are not persuaded by this argument. As an initial

matter, Ray’s lawsuit was styled as a prisoner complaint and

listed his prison mailing address. Farrell Complaint, at 1.

Moreover, in a letter attached to his complaint, Ray

confirmed he was “in prison awaiting release via [his]

appeal.” Id. at Ex. 2. Success on Ray’s claim would

necessarily imply that his conviction was obtained in

violation of the Sixth Amendment to the U.S. Constitution.

Heck’s bar to relief was therefore obvious from the face of

Ray’s complaint and the court dismissed his entire complaint

for this reason. See Washington, 833 F.3d at 1055. We agree

that Ray’s prior dismissal in Farrell amounts to a strike

under § 1915(g) for failure to state a claim.

attached exhibits in Farrell as well. See Farrell, No. 3:10-cv-00823-SI

(N.D. Cal. Feb. 26, 2010), Dkt. 1 (“Farrell Complaint”).

5

Although Ray’s complaint asserted criminal claims under

18 U.S.C. §§ 241 and 242, the district court construed the complaint as

a civil rights complaint under § 1983. Farrell, 2010 WL 3448316, at *1.

RAY V. LARA 11

This same reasoning applies to Basa. Ray filed that

complaint four days after filing Farrell in the same court.

Dkt. 31, Ex. E, at 45. He alleged that a police sergeant

violated his right to counsel during a line up and withheld

exculpatory evidence in connection with his criminal trial.

Id. at 46–47. Both Basa and Farrell were assigned to the

same judge, who issued nearly identical opinions dismissing

under Heck on the same day. Id. at 41–43. As with Farrell,

Basa was styled as a prisoner complaint and listed a prison

mailing address for Ray. Id. at 45–49. In addition, an

attached Oakland Police Department Complaint Form

includes Ray’s statement, “I’m in prison because of his

malfeasance.” Id. at 50. Thus, the Heck bar was also

obvious from the face of Ray’s complaint in Basa, and we

agree with the district court that Basa constitutes a strike

under the PLRA. See Washington, 833 F.3d at 1055.

Ray was assessed a third strike for Ray v. Friedlander,

which was dismissed as barred by absolute prosecutorial

immunity. No. 3:10-cv-01107-SI, 2010 WL 3464453 (N.D.

Cal. Sept. 1, 2010). We have held that dismissals on

immunity grounds are not generally strikes under § 1915(g).

Harris, 935 F.3d at 675–76. However, there are two

exceptions to this rule: (1) “where an affirmative defense,

such as immunity, may be so clear on the face of the

complaint that dismissal may qualify as a strike for failure to

state a claim,” and (2) “where an affirmative defense like

immunity is so obvious that the suit is frivolous.” Id. at 676.

These exceptions apply only “where the affirmative defense

is readily apparent without resort to any additional

information outside the four corners of the complaint.” Id.

12 RAY V. LARA

Therefore, we examine Ray’s complaint in Friedlander to

determine whether dismissal amounts to a strike. 6

Friedlander was filed shortly after Farrell and Basa and

assigned to the same judge. Friedlander, 2010 WL

3464453. Ray alleged that a deputy attorney general

misrepresented evidence in an appellate brief submitted in

Ray’s criminal appeal. Friedlander Complaint, at 2–3. It

has long been established that prosecutors enjoy absolute

immunity from damages suits under § 1983 for activities that

are “intimately associated with the judicial phase of the

criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430

(1976). With little discussion, the district court dismissed

Friedlander on this ground. Friedlander, 2010 WL

3464453, at *1 (“Writing the appellate brief on behalf of the

State of California in a criminal case is a prosecutorial

function squarely within the conduct for which a prosecutor

enjoys absolute immunity. The complaint must be dismissed

because it is legally meritless.”). We agree that writing the

appellate brief on behalf of the government in a direct appeal

in a criminal case is “intimately associated with the judicial

phase of the criminal process.” Imbler, 424 U.S. at 430.

Ray’s dismissal in Friedlander thus qualifies as a strike for

failure to state a claim because it is an “exceptional case[]

where the affirmative [immunity] defense is readily apparent

without resort to any additional information outside the four

corners of the complaint.” Harris, 935 F.3d at 676.

In sum, the district court properly assessed three strikes

based on Ray’s prior dismissals in Farrell, Basa, and

6

We take judicial notice of the complaint in Friedlander, although

neither party requested it. Fed. R. Evid. 201(c)(1); see Friedlander,

No. 3:10-cv-01107-SI (N.D. Cal. Mar. 15, 2010), Dkt. 1 (“Friedlander

Complaint”).

RAY V. LARA 13

Friedlander. We need not consider other dismissals raised

by Lara.

III

The final question before us is whether the imminent

danger exception requires a nexus between a plaintiff’s

claims and the alleged danger. Section 1915(g) states in

relevant part that a prisoner who has accumulated three

strikes shall “[i]n no event . . . bring a civil action or appeal

a judgment in a civil action or proceeding [IFP] . . . unless

the prisoner is under imminent danger of serious physical

injury.” Ray argues this exception does not require a link to

his substantive claim, and therefore he is entitled to IFP

status regardless of whether a nexus exists. We disagree and

join three other circuits in holding that the text, context, and

purpose of the statute mandate that the imminent danger

exception to § 1915(g) contains a nexus requirement.

Although we have not explicitly adopted an imminent

danger nexus requirement for § 1915(g) in the past, our

previous decisions have implied the existence of a nexus.

See Andrews v. Cervantes, 493 F.3d 1047, 1053–54 (9th Cir.

2007) (Andrews II); Williams v. Paramo, 775 F.3d 1182,

1190 (9th Cir. 2015). In Andrews II, we concluded that when

one claim in a prisoner’s complaint alleges imminent danger,

the entire complaint should be permitted to proceed IFP,

even if remaining claims do not allege imminent danger.

493 F.3d at 1054. Our decision assumed that at least one

claim must bear a relationship to the alleged imminent

danger for the § 1915(g) exception to apply. Id. Similarly,

in Williams, we emphasized the relationship between a

prisoner’s imminent danger allegations and her claims in

holding that she could proceed IFP on appeal. 775 F.3d

at 1190 (“Williams’s allegations are clearly related to her

14 RAY V. LARA

initial complaint regarding the rumors started by Defendants

. . . .”).

Three of our sibling circuits have formally adopted an

imminent danger nexus requirement for § 1915(g). The

Second Circuit first adopted such a requirement in Pettus v.

Morgenthau, 554 F.3d 293 (2d Cir. 2009). It rejected

plaintiff’s argument that absence of an explicit mention of a

nexus in the statutory text foreclosed the possibility of a

nexus requirement. Id. at 296–97. Rather, considering the

imminent danger exception’s position in the overall PLRA

framework, the court concluded a reasonable reader would

construe the exception narrowly. Id. at 297.

In its decision, the Second Circuit emphasized that

“Congress adopted the [PLRA] with the principal purpose of

deterring frivolous prisoner lawsuits and appeals,” and

construing the imminent danger exception broadly would

thwart that purpose. Id. (quotation omitted). Because the

imminent danger exception operates as a safety valve for

three-strikes prisoners, “[i]ts unmistakable purpose is to

permit an indigent three-strikes prisoner to proceed IFP in

order to obtain a judicial remedy for an imminent danger.”

Id. Pettus also provided guidance on how to determine

whether a nexus exists. Analogizing to standing principles,

the Second Circuit held that, to satisfy § 1915(g), the

allegations in the prisoner’s complaint must reveal that

(1) “the imminent danger of serious physical injury that [the

prisoner] alleges is fairly traceable to unlawful conduct

asserted in the complaint,” and (2) “a favorable judicial

outcome would redress that injury.” Id. at 298–99.

Both the D.C. and Federal Circuits have adopted a

similar requirement, relying on Pettus. Pinson v. U.S. Dep’t

of Justice, 964 F.3d 65, 71–72 (D.C. Cir. 2020); Fourstar v.

United States, 950 F.3d 856, 859 (Fed. Cir. 2020). While

RAY V. LARA 15

the D.C. Circuit declined to articulate a precise test, Pinson,

964 F.3d at 73, the Federal Circuit adopted the Second

Circuit’s redressability and traceability nexus requirement.

Fourstar, 950 F.3d at 859. No circuit has concluded that

§ 1915(g) does not require a nexus between the prisoner’s

imminent danger and the violations of law alleged in the

prisoner’s complaint. 7

We agree with our sibling circuits that the PLRA

requires a nexus between the alleged imminent danger and

the violations of law alleged in the prisoner’s complaint. “In

a statutory construction case, analysis must begin with the

language of the statute itself; when the statute is clear,

judicial inquiry into its meaning, in all but the most

extraordinary circumstance, is finished.” Harris, 935 F.3d

at 673 (cleaned up). The statutory text in this case reveals

no explicit answer to whether a prisoner’s imminent danger

must be related to his claims. However, the position of the

imminent danger clause as an exception to the rule that three-

strikes prisoners “[i]n no event shall” be permitted to

proceed IFP indicates that Congress intended this clause to

apply narrowly. See Pettus, 554 F.3d at 297 (“[W]hen

construing the plain text of a statutory enactment, we do not

construe each phrase literally or in isolation. Rather, we

attempt to ascertain how a reasonable reader would

understand the statutory text, considered as a whole.”).

Implicit in the text of § 1915(g) is an understanding that the

exception functions as a limited safety valve for a prisoner

7

Ray contends that the Third Circuit implied in a footnote that no

nexus is required under the statute. See Gibbs v. Roman, 116 F.3d 83,

87 n.7 (3d Cir. 1997), rev’d en banc on other grounds by Abdul-Akbar

v. McKelvie, 239 F.3d 307 (3d Cir. 2001). Given that the appellant in

that case alleged imminent danger clearly related to his complaint, id.

at 84, we find Ray’s argument unpersuasive.

16 RAY V. LARA

who has exhausted his three strikes but nevertheless faces

imminent danger stemming from the violations of law

alleged in his complaint. Abdul-Akbar, 239 F.3d at 315;

Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus,

a nexus requirement is clear from the face of the text as a

whole.

This narrow view of the imminent danger exception also

comports with the purpose and context of the PLRA. See

Invesco High Yield Fund v. Jecklin, 10 F.4th 900, 903 (9th

Cir. 2021) (“Interpretation of a word or phrase depends upon

reading the whole statutory text, considering the purpose and

context of the statute, and consulting any precedents or

authorities that inform the analysis.” (quotation omitted)).

The PLRA was enacted in response to a notable increase in

prisoner litigation. Woodford v. Ngo, 548 U.S. 81, 84

(2006). In particular, the three-strikes provision aimed “to

disincentivize frivolous prisoner litigation.” Hoffman v.

Pulido, 928 F.3d 1147, 1148–49 (9th Cir. 2019). If we adopt

Ray’s argument that there is no nexus requirement, “an

indigent prisoner with a history of filing frivolous

complaints could, by merely alleging an imminent danger,

file an unlimited number of lawsuits, paying no filing fee,

for anything from breach of a consumer warranty to antitrust

conspiracy.” Pettus, 554 F.3d at 297. Congress could not

have meant this narrow exception to swallow the rule. See

id. We therefore hold that the imminent danger exception to

the PLRA three-strikes provision requires a nexus between

the alleged imminent danger and the violations of law

alleged in the complaint.

Further, we are persuaded by the Second Circuit’s

articulation of the nexus test. Id. at 298–99 (“In deciding

whether such a nexus exists, we will consider (1) whether

the imminent danger of serious physical injury that a three-

RAY V. LARA 17

strikes litigant alleges is fairly traceable to unlawful conduct

asserted in the complaint and (2) whether a favorable judicial

outcome would redress that injury.”). By including an

exception for prisoners facing imminent danger of serious

physical injury in § 1915(g), Congress identified an injury-

in-fact for which three-strikes prisoners could seek a

remedy. Id. at 297–98. Thus, in order to qualify for the

§ 1915(g) imminent danger exception, a three-strikes

prisoner must allege imminent danger of serious physical

injury that is both fairly traceable to unlawful conduct

alleged in his complaint and redressable by the court. 8

Applying this nexus requirement to the case at bar, it is

clear that Ray does not qualify for the imminent danger

exception. Ray alleged only that Lara censored and

confiscated his prison mail. He did not allege any imminent

danger fairly traceable to Lara’s alleged censorship and

confiscation of prison mail. See id. at 298–99. Instead, he

asserted imminent danger due to his prison housing

conditions, which he does not allege are unlawful. Ray

provides no basis to believe that censorship of his mail

contributes to danger he faces as a high-risk inmate housed

in general population. Moreover, a favorable judicial

outcome would not redress any injury resulting from Ray’s

housing; it would merely redress allegations of mail

tampering. See id. Thus, we agree with the district court

8

Although Ray argues we should adopt a but-for causation test, we

agree with the Second Circuit that this broader formulation would thwart

the purpose of the three-strikes provision. See Pettus, 554 F.3d at 299

n.1.

18 RAY V. LARA

that Ray does not qualify for the imminent danger exception

to § 1915(g). 9

IV

Because Ray has both accumulated three strikes and

failed to establish a sufficient nexus between his alleged

imminent danger of serious physical injury and purported

mail tampering, he is barred from proceeding IFP. The

judgment of the district court is AFFIRMED.

9

In Ray’s motion to proceed IFP on appeal, he argued that he was

relocated within his prison in retaliation for filing a grievance against

Lara. This theory of imminent danger was not presented to the district

court, but it also fails to satisfy the § 1915(g) nexus requirement. Even

assuming Ray satisfied the traceability element under this theory, his

alleged imminent danger would not be redressable through the instant

action. See Pettus, 554 F.3d at 298–99.