holding that “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 are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan.”
How later courts described this case
- holding that “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 are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan.”
- holding that the 1996 amendments to § 1915 created "monetary and procedural disincentives to the filing of meritless cases," and that in "preserving scarce judicial resources by deterring baseless, frivolous, and malicious suits Congress was furthering a legitimate state interest"
- explaining that the purpose of the PLRA “was to require all prisoner-litigants to pay filing fees in full, with the only issue being whether the inmate pays the entire filing fee at the initiation of the proceeding or in installments over a period of time”
- finding imminent danger where the inmate alleged that prison officials knowingly placed him near those who are likely to attack him because the complaint alleged an ongoing pattern of such placements and was filed “very shortly after the last attack”
Written by the judges who cited it.
The opinion
BEAM, Circuit Judge,
dissenting.
I respectfully dissent from that portion of the court’s opinion that will allow a prisoner to utilize section 1915(g) to assert a claim for past damages. In my view, the court today creates “a loophole Congress surely did not intend in its stated goal of discouraging frivolous and abusive prison lawsuits.” In re Tyler, 110 F.3d 528, 529 (8th Cir.1997) (quotations omitted). Here, Ashley seeks compensatory and punitive damages for alleged events that are months — -if not years — old, as well as declaratory and injunctive relief of a more immediate nature. Under the statute, I believe we are limited by the “three strikes” provision to the remedy of prospective relief only.
Congress enacted the Prison Litigation Reform Act with the principal purpose of deterring frivolous prisoner litigation by instituting economic costs for prisoners wishing to file civil claims. Lyon v. Krol, 127 F.3d 763 , 764 (8th Cir.1997). To that end, it created a system of “monetary and procedural disincentives to the filing of meritless cases.” Christiansen v. Clarke, 147 F.3d 655 , 658 (8th Cir. May 29, 1998). That system withstands Constitutional scrutiny. Id. at 658.
The “three strikes” provision directs that prisoners who have had three previous civil suits or appeals dismissed as malicious, frivolous, or for failure to state a claim must prepay the entire filing fee. 28 U.S.C. § 1915 (g). In passing the “three strikes” provision, members of Congress stated that the purpose of the provision is to require prisoners to pay for filing a lawsuit in the same way as nonprisoners. See Lyon, 127 F.3d at 767 (Heaney, J., dissenting). The requirement of up-front payment for repeat frivolous filers has one narrow and important *718 exception: a prisoner who “is under imminent danger of serious physical injury” will be permitted to file in forma pauperis (IFP) and to make installment payments. 28 U.S.C. § 1915 (g).
By requiring that the prisoner “is,” in imminent danger of being physically harmed, the statute implies that his or her remedy is protection from such harm. In other words, by its plain language, the statute limits the relief we can offer such a prisoner to prospective relief for the actions that have caused the immediate risk of harm. There is no authority for a wholesale consideration of issues unrelated to the threat of imminent danger. But see Gibbs v. Roman, 116 F.3d 83 , 87 n. 7 (3d Cir.1997). I find no authority under this statutory exception to file a lawsuit on the installment plan seeking an award of damages for alleged actions that have happened in the past. Relevant as such actions may be as evidence of a risk of present danger, they cannot form the basis of a claim for which a prisoner can obtain IFP status under this narrow exception. Such a prisoner is, of course, free to pursue such a claim and pay for it. We are concerned here with the narrow circumstance in which a court can and should allow a prisoner who is in immediate danger of harm to proceed IFP. Accordingly, to the extent that today’s decision will allow Ashley to seek damages for alleged events dating back to 1993, I respectfully dissent.