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. e du/thir dc ir c uit_2001/16Filed 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

2D. 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" rul e, a prisoner may not file a new action or appeal in for ma pauperis ("I.F.P.") if, on thr ee or more prior occ asions 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 physi cal injury." We held in Gibbs that"imminent danger" is measured at the time of the alleged incident, not a t the time the complaint is filed. 116 F.3d at 86. Three of our sister courts of appeals have since rejected our te achings in Gibbs, holding instead that the court should assess "imminent danger" as of the time the prisoner's com plaint is filed and that a prisoner's allegation that he f aced danger in the past is insufficient to allow him to pr ocee d I.F.P. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 199 8); Banos v. O'Guin, 144 F.3d 883, 884-885 (5th Cir. 19 98). We now abandon the interpretation set forth in Gibbs a nd

3adopt that of our sister courts of appeals. W e hol d also that

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

I.

Appellant Debro Siddiq Abdul-Akbar was most r ecent ly incarcerated by the Delaware Department of Correcti ons from June 10, 1994 through May 15, 1999 on state ch arges including robbery, conspiracy, assault and shoplift ing. During the time material to Appellant's underlying proposed Complaint based on 42 U.S.C. S 1983, he wa s incarcerated at the Sussex Correctional Institute i n 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 ha beas corpus claims. Abdul-Akbar v. Dept. of Corr ections , 910 F. Supp. 986, 998 (D. Del. 1995). In Abdul-Akbar v. Wa tson, 901 F.2d 329 (3d Cir. 1990), this court reviewed a district court order barring Appellant from filing any furth er S 1983 claims I.F.P. and held that a district court may en ter an injunction precluding a prisoner fromfiling any S19 83 claims without leave of court and without making ce rtain good faith certifications. 901 F.2d at 333. We stat ed that Abdul-Akbar's "history of repetitious and frivolous filings

indicates a clear intent to abuse the courts and th e I.F.P. process." Id. at 334. An injunction subsequently wa s 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 an d a motion to proceed I.F.P. The pr oposed Complaint al leged 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 t hey knew that he suffers from asthma. Appellant also cl aimed that certain prison officials violated his civil ri ghts by belonging to a racist organization, that one defend ant failed to investigate properly the pepper spray incident, and that the district court judge violated his Sixth Amendme nt right

4of access to the courts by preventing his complaint s from

being heard.

The district court denied the motion to proceed I.F .P., reasoning that (1) Appellant had brought actions th at the

court had dismissed as frivolous on more than three prior occasions, and (2) he did not claim to be in immine nt 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 o rder denying leave to proceed I.F.P. is a final, collate ral order appealable under 28 U.S.C. S 1291. The appeal was t imely

filed. This court reviews de novo issues of statuto ry interpretation, Pennsylvania Mines Corp. v. Holland , 197 F.3d 114, 119 n.2 (3d Cir. 1999), and the constitut ionality of a statute, DeSousa v. Reno, 190 F .3d 175, 180 ( 3d Cir. 1999).

II.

The discretionary power to permit indigent plaintif fs to proceed without first paying a filing fee was initi ally 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, bo th of which must be paid by everyone else who files a law suit, would not prevent indigent persons from pursuing meaningful litigation." Deutsch v. United States, 6 7 F.3d 1080, 1084 (3d Cir. 1995) (citing Denton v. Hernand ez, 504 U.S. 25, 31 (1992)). Congress was also awar e of th e potential for abuse, and it included a subsection a llowing

for dismissal of frivolous or malicious actions. De nton, 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 th e federal courts. See 141 Cong. Rec. S14408-01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole) (explainin g that the number of prisoner suits filed "has grown astronomi cally-- from 6,600 in 1975 to more than 39,000 in 1994"). I n

5enacting the PLRA, Congress concluded that the larg e

number of meritless prisoner claims was caused by t he fact that prisoners easily obtained I.F.P. status and he nce were not subject to the same economic disincentives tofi ling meritless cases that face other civil litigants. Se e 141 Cong. Rec. S7498-01, S7526 (daily ed. May 25, 1995) (stat ement of Sen. Kyl) ("Filing frivolous civil rights lawsui ts has become a recreational activity for long-term reside nts of prisons."); 141 Cong. Rec. S7498-01, S7524 (daily e d. May 25, 1995) (statement of Sen. Dole) ("[P]risoners wi ll now `litigate at the drop of a hat,' simply because the y have little to lose and everything to gain."). To curb this tre nd, the PLRA instituted a number of reforms in the handling of prisoner litigation.

Among other things, the PLRA amended the I.F .P. st atute as it applies to prisoners. Under the statute as am ended, a prisoner who is allowed to proceed I.F.P . is not e xcused from paying filing fees, but is only excused from p re-paying them in full if they meet certain criteria. The PLR A now requires prisoners who qualify for I.F .P. status t o pay by way of an initial partial fee, followed by installm ent payments until the entire fee is paid. 28 U.S.C. S 1915(b)(1). Congress also added S 1915(g), the "three strikes r ule," which limits a prisoner's ability to proceed I.F.P. if the prisoner abuses the judicial system by filing frivo lous actions. Prisoners may avoid the limitation in this provision, however, if they are under "imminent dan ger of serious physical injury."

This appeal requires us to decide when the existenc e 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 al leged incident. We adopt, instead, the construction set f orth by the Fifth, Eighth and Eleventh Circuit Courts of Ap peals, that a prisoner may invoke the "imminent danger" exception only to seek relief from a danger which i s "imminent" at the time the complaint is filed. We c onclude that this interpretation is consistent with the pla in

6language of S 1915(g), with congressional intent an d with

the legislative purpose of the PLRA as a whole.

III.

This is a case of statutory construction, and we be gin 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 proc eeding under this section if the prisoner has, on 3 or m or e prior occasions, while incarcerated or detained i n any facility, brought an action or appeal in a court of the United States that was dismissed on the gro unds that it is frivolous, malicious, or fails to sta te a claim upon which relief may be granted, unless the pri soner is under imminent danger of serious physical i njury.

A.

We now apply settled precepts of statutory construc tion 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. Unit ed States, 242 U.S. 470, 485 (1917) (internal citation s omitted):

It is elementary that the meaning of the st atute must, in the first instance, be sought in the lan guage in which the act is framed, and if that is pla in, and if the law is within the constitutional authority of the law- making body which passed it, the sole funct ion of the courts is to enforce it according to its te rms. Where the language is plain and admits of no more tha n one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meaning s need no

discussion.

In 1993, the Court made a modern statement of the p lain meaning rule: "Our task is to give effect to the wi ll of Congress, and where its will has been expr essed in reasonably plain terms, that language must ordinari ly be regarded as conclusive." Negonsett v. Samuels, 507 U.S. 99, 104 (1993). If the language of the statute is plain , the sole

7function of the court is to enforce the statute acc ording to

its terms. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989). The plain meaning is conclusive, t herefore, "except in the `rare cases [in which] the literal a pplication of a statute will produce a result demonstrably at odds with the intentions of its drafters.' " Id. at 242 (quot ing Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982)).

B.

We now apply the ordinary meaning of the words chos en by Congress in drafting S 1915(g). The phrase "in n o event" simply means "may not." This court has pr eviously held that the word "bring" in this context plainly refer s to the

time when the civil action is initiated. Gibbs v. R yan, 160 F.3d 160, 162 (3d Cir. 1998). Putting the phrases t ogether, the first clause of S 1915(g) obviously means "a pr isoner may not file a new civil complaint." In the or dina ry sense of the words, this clause refers temporally to the tim e the new complaint is filed. The clause "unless he is in imm inent 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 w ord "is" in the exception refers back to the same point in t ime as the first clause, i.e., the time of filing. The sta tute contemplates that the "imminent danger" will exist contemporaneously with the bringing of the action. Someone whose danger has passed cannot reasonably b e described as someone who "is" in danger , nor can t hat past danger reasonably be described as "imminent." The c ourt so held in Ashley v. Dilworth, 147 F .3d 715, 717 ( 8th Cir. 1998):

As the statute's use of the present tense v erbs`bring' and `is' demonstrates, an otherwise ineligi ble prisoner is only eligible to proceed IFP if he is in imminent danger at the time of filing. Allegations t hat the prisoner has faced imminent danger in the p ast ar e insufficient to trigger this exception to S 1915(g) and authorize the prisoner to pay the filing fe e on the installment plan.

See also Medberry v. Butler, 185 F.3d 1189, 1193 (1 1th Cir. 1999) ("Congress' use of the present tense in S 191 5(g)

8confirms that a prisoner's allegation that he faced imminent

danger sometime in the past is an insufficient basi s to allow him to proceed in forma pauperis . . . ."); B anos v. O'Guin, 144 F.3d 883, 885 (5th Cir . 1998) ("[T]he language of S 1915(g), by using the present tense, clearly r efers to the time when the action or appeal is filed or the moti on for IFP status is made."). Taking both clauses together, th e statute plainly means that a prisoner is not permitted to f ile his complaint unless he is, at that time, under imminen t danger. Viewed from the Plain Meaning Rule, we inte rpret "is under imminent danger" to relate to the time wh en "a prisoner bring[s] a civil action."

IV.

Reinforcing the interpretation of the statute by application of the Plain Meaning Rule is an analysi s of language found in other portions of the PLRA. For e xample, 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 crim inal judgment for the reason that the prisoner has no ass ets and no means by which to pay the initial partial f iling fee.

28 U.S.C. S 1915(b)(4) (emphasis added). As in subs ection (g), this provision begins with the exhortation"in no event shall," and, as in subsection (g), it describes a n ecessary condition by using the present tense of the operati ve verb. Section 1915(b)(4) plainly means that the courts ma y not prohibit a prisoner from filing a new complaint for the reason that he does not possess any assets at the t ime 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 focus ing on the time of filing. Section 1997e(a) of T itle 4 2, 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 t he time of the incident, but when the lawsuit is filed. Harris v. Garner,

9216 F.3d 970, 974-975 (11th Cir. 2000). Finally, th e need

for the district court to screen a complaint in a c ivil action filed by a prisoner, as requir ed by 28 U.S.C. S 19 15A, looks to the plaintiff 's status when the case isfiled. J ohnson 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 Congr ess' intent. Having applied the American Plain Meaning Rule and having determined that there is no ambiguity, we ar e 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 prisone r lawsuits. To accomplish this, Congress curtailed the ability of prisoners to take advantage of the privilege offili ng I.F.P. The "three strikes" rule added by the PLRA supplied a powerful economic incentive not to file frivolous l awsuits 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 merito rious subsequent claims may be.

It is important to note that S 1915(g) does not blo ck a prisoner's access to the federal courts. It only de nies the prisoner the privilege of filing before he has acqu ired the necessary filing fee. Appellant argues that a priso ner subject to the "three strikes" rule, but who does n ot establish "imminent danger," could for ever lose hi s ability to bring his suit as a practical matter because of the difficulties of obtaining the money, the applicatio n of the statute of limitations, or the possible loss of nec essary 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 pred icted

10by Appellant is, for better or for worse, exactly t he result

the PLRA intends.

Recognizing that it could take prisoners a signific ant period of time to obtain the filing fee in some cas es, Congress created a limited exception aimed at preve nting future harms, and did so through the use of the wor d "imminent." "Imminent" dangers ar e those dangers w hich 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 t hat it wanted to include a safety valve for the "thr ee st rikes" rule to prevent impending harms, not those har ms that h ad already occurred. The imminent danger exception all ows the district court to permit an otherwise barr ed p risoner to file a complaint I.F.P. if the prisoner could be su bject to serious physical injury and does not then have the r equisite filing fee.

In contrast, under the Gibbs construction, the pris oner need only show that he was subject to imminent dang er 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 disq ualified prisoner alleges that any threat of physical injury occurred at any time, that prisoner automatically qualifies for the imminent danger exception. The Gibbs interpr etatio n of the imminent danger exception thereby swallows the rule . Like every other court of appeals that has consider ed t his issue, we refuse to conclude that with one hand Congr ess intended to enact a statutory rule that would r edu ce the huge volume of prisoner litigation, but, with the o ther hand, it engrafted an open-ended exception that wou ld

eviscerate the rule.1

___________________________________________________ ______________

1. The dissent devotes much effort to asserting tha t, even under our time of filing construction, Appellant's S 1983 Complain t 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 lit igation did Appellant seek to rely on an ongoing danger theory, even thro ugh the able counsel appointed by this court for purposes of this appeal . Inasmuch as the

11This is not to suggest that we would criticize any statute

or judicially-created legal precept that would perm it any prisoner, even a frequent filer, to file such a com plaint I.F.P. Such a notion is entirely compatible with the prece pt that for any injury, there should be a remedy. But we do not write in the abstract here, nor do we write on a cl ean slate. Congress has deliberately decided to legislate on t his subject by proclaiming, as public policy, a determi nation to reduce prisoner litigation in the federal courts. A s citizens, we may disagree with the congressional wisdom, but as judges, knowing the clearly stated legislative purp ose, we may not disembowel the legislative act. Federal cou rts, unlike state common law King's Bench courts, do not have unlimited power and authority. We are limited to th at which has been granted by Congress. What Congr ess gives it may also take away. The ability to proceed I.F .P. is n ot 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 a s judges

___________________________________________________ ______________

dissent uses our silence with respect to an issue n ot raised by the parties to argue that our construction of the immin ent danger exception eliminates a prisoner's ability to satisfy the immi nent danger exception by alleging an ongoing risk of serious physical inj ury, we respond only by stressing that we by no means intend such a resu lt.

At all events, we doubt whether the allegations in Appellant's S 1983 Complaint suffice to establish such an ongoing dang er. Even under a liberal reading of Appellant's pleading, it is evid ent that Appellant's allegations center on an incident that occurr ed on or about January 9, 1998, when a prison official allegedly sprayed Appe llant with pepper gas. App. 9-10. Appellant does not identify any further incidents occurring after that date. Moreover, although Appellant alleg es that he experienced several other acts of physical harassment by dif fe rent prison officials, these events not only all pre-date the January 9th incident, but also appear entirely unconnected to it, and thus undermi ne the dissent's claim that the danger to Appellant was ongoing. Fin ally, while Appellant does allege that he complained for a year about the use of pepper gas (App. 10), and that prison officials engaged in"con tinuing harassment, ploits [sic] to hurt or kill [him], and other forms of retaliation," (App. 8, 9) such generalized allegations strike us as insuff icient to connect the separate incidents mentioned above into a patter n of threats of serious physical injury that are ongoing.

12to grant I.F.P. status to a "thr ee strikes" prison er, no matter

how meritorious his or her subsequent claims may be

, unless the prisoner "is under imminent danger of se rious physical injury" when he or she "bring[s] a civil a ction." Congress has held trump here, and it has dealt a ha nd. 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 gu arantee implied in the Fifth Amendment by improperly burden ing a prisoner's "fundamental right of access" to the cou rts.2

___________________________________________________ ______________

2. In his reply brief, Appellant contends for the f irst time that this interpretation of the statute runs counter to the p rotections assured by the Eighth Amendment. Appellant argues that"[t]he r ight 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. Co nnecticut, 401 U.S. 371 (1971), and that, therefore, he is entitled to a wa iver of filing fees as

a matter of law. We will not discuss the merits of th is 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) requ ire 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 i ssue, the appellant normally has abandoned and waived that issue on app eal and it need not be addressed by the court of appeals.").

The dissent contends that Abdul-Akbar's waiver shou ld be ignored because an assessment of the importance of a claime d constitutional interest is an implicit part of any equal pr otecti on or due process inquiry determining the level of scrutiny that will apply t o a challenged government action. The dissent agrees with Abdul-Ak bar 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 s uch a right represents a fundamental interest for Boddie purposes. Further more, the dissent also points to several other underlying rights, inc luding 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 es umably treat as

fundamental interests under Boddie. What the dissen t fails to recognize,13Moreover, he argues that we must apply strict scrut iny in

considering this contention and that, alternatively , even under rational basis scrutiny, the statute, as we i nterpret it, does not pass constitutional muster because it is not rationally related to a legitimate gover nmental in terest.

A.

Although the Fifth Amendment contains no Equal Protection Clause, "the Fifth Amendment's Due Proce ss Clause prohibits the Federal Government from engagi ng in discrimination that is `so unjustifiable as to be v iolative of due process.' " Schlesinger v. Ballar d, 419 U.S. 4 98, 500 n.3 (1975) (quoting Bolling v. Sharpe, 347 U.S. 497, 49 9 (1954)). Accordingly, the Court has construed the F ifth 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 su ch

claims under the Fourteenth Amendment. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995 ) (citations omitted). Statutes that substantially bu r den a fundamental right or target a suspect class must be reviewed under "strict scrutiny;" that is, to survi ve, 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 d oes 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).

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however, is that the importance of the underlying r ight is largely immaterial to the question whether that right is a fundamental interest for Boddie purposes. As we discuss infra in Part V I.B., an underlying

constitutional entitlement rises to the level of a Boddie fundamental interest only when the government blocks the sole l egal means for safeguarding that entitlement, and not simply becau se the interest itself is a weighty one.

14This requires us first to determine whether Appella nt is

a member of a suspect class or whether a fundamenta l right is implicated. Neither prisoners nor indigent s are suspect classes. See, e.g., Pryor v. Brennan, 914 F .2d 921, 923 (7th Cir. 1990) (noting that prisoners do not c onstitute a suspect class); Harris v. McRae, 448 U.S 297, 323 (1980) (noting that poverty is not a suspect classificatio n). Nor has Appellant argued before us that indigent prisoners, specifically, frequent filer indigent prisoners, ar e a suspect class. We then must inquire whether the"time of fil ing" construction infringes upon one of Appellant's fund amental rights.

B.

Appellant contends that the "time of filing" interp retation adopted by our sister courts of appeals and adopted by us today unconstitutionally burdens his fundamental ri ght of access to the courts by requiring him to pay fees. But the right of access to the courts is not absolute. Unit ed States v. Kras, 409 U.S. 434, 450 (1972). Courts pr esente d with this issue have consistently held that merely r equ iring a prisoner to pay filing fees in a civil case does no t, standing alone, violate that prisoner's right of meaningful access to the courts. See, e.g., Rivera v. Allin, 144 F.3d 71 9, 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 ac tion; he or she is simply unable to enjoy the benefits of pr oc eeding 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 c annot be said that limiting the temporal aspect of the excep tion to the "three strikes" rule infringes upon Appellant's right of

access to the courts.

The Court has recognized only a "narr ow category o f civil cases in which the State must provide access to its judicial processes without regard to a party's ability to pa y court fees." M.L.B. v. S.L.J., 519 U.S. 102, 113 (1996). An unconditional right of access exists for civil case s only when denial of a judicial forum would implicate a

fundamental human interest -- such as the ter minat ion of

15parental 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 no t rise to this level are bankruptcy filings, Kras , 409 U.S. at 444-445, and welfare benefit determinations, Ortwein v. Schw ab, 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, th e 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 380-38 1 (emphasis added). Unlike the parties in Boddie , Ap pellant is not precluded from filing his S 1983 Complaint in a nother court system that does not have a "three strikes" p rovision. State courts have concurrent jurisdiction overS 198 3 cases. Howlett v. Rose, 496 U.S. 356, 358 (1990). Appellan t can

seek I.F.P. status under Delawar e law because it d oes not have a parallel "three strikes" rule. See generally 10 Del. C. S 8802 (I.F.P. statute). A state court provides a f ully 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 t hus presumptively competent, to adjudicate claims arisi ng under the laws of the United States."). Because nei ther

Delaware substantive law nor Delaware court rules prevented him, as an indigent prison litigant, from pursuing his claims, we do not agree that strict sc rutiny 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, 52 5 U.S. 1139 (1999); Rivera, 144 F.3d at 727; Carson v. Joh nson, 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 o n the

16right of access to the courts, arguing thatS 1915(g )'s

purpose and effect is to prevent him and other freq uent filer prisoner indigents from filing civil lawsuits. In a ddressing this contention, we must first examine the legislat ive

purpose.

As discussed above, the legislation was aimed at th e skyrocketing numbers of claims filed by prisoners - - many of which are emotionally driven but legally deficie nt -- and the corresponding burden those filings have placed on the federal courts. Congress sought to put in place eco nomic incentives that would prompt prisoners to "stop and think" before filing a complaint.3 The "three strikes" rul e 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 freq uent filers who have failed in the past to carefully evaluate t heir claims prior to filing.

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3. Congress's rationale for placing the fee require ments on prisoners is captured in the statements of Senator Jon Kyl:

Section 2 will require prisoners to pay a v ery small share of the large burden they place on the Federal judi cial system by paying a small filing fee upon commencement of lawsu its. In doing so, the provision will deter frivolous inmate lawsu its. The modest
monetary outlay will force prisoners to think twice about the case and not just file reflexively. Prisoners will have to ma ke the same decision

that law-abiding Americans must make: Is the law suit worth the price? Criminals should not be given a special pri vilege that other

Americans do not have . . . . The volume of prisoner litigation represents a large burden on the judicial s ystem, which is already overburdened by increases in nonprisoner li tigation. Yet prisoners have very little incentive not to file nonm eritorious lawsuits.

Unlike other prospective litigants who seek poor p erson status, prisoners have all the necessities of life supplied, including the materials required to bring their lawsuits. For a pri soner who qualifies for poor person status, there is no cost to bri ng a suit and, therefore,

no incentive to limit suits to cases that h ave some chance of success. The filing fee is small enough not to deter a prisoner

with a meritorious claim, yet large enough to de ter frivolous claims

and multiple filings.

141 CONG. REC. S7498-01, S7526 (daily ed. May 25, 1 995) (statement ofSen. Kyl) (citation omitted).

17Deterring frivolous prisoner filings in the federal courts

falls within the realm of Congress' legitimate inte rests, and the interpretation we adopt today is rationally rel ated to the achievement of that interest. "[T]he right of acces s to federal courts is not a free floating right, but rather is subject to Congress' Article III power to set limits on federa l legislation." Roller, 107 F.3d at 231. Although it had the power to do so, Congress did not repeal any particu lar cause-of-action available to prisoners. Rather , Co ngress changed only the rules regarding I.F .P. status. Un der S 1915(g), prisoners are still able tofile civil ac tions; they are merely prohibited from enjoying I.F.P. status. Lyon v. Krol, 127 F.3d 763, 765 (8th Cir . 1997); Carson, 1 12 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 court s than it is to provide unlimited access to them." Roller, 10 7 F.3d at 231. Although the dissent claims that the "thr ee s trikes" rule embodied in S 1915(g) is too blunt an instrume nt and is insufficiently targeted to arrest frivolous fili ngs, we have always recognized that constitutional constraints " require[ ] neither a perfect nor even best availablefit" betwe en a statute's goal and the means employed in that statu te 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 strik es" rule for those cases in which it appears that judicial a ction is needed as soon as possible to prevent serious physi cal injuries from occurring in the meantime. Thus,S 191 5(g) rationally balances the economic deterrence rationa le

behind the "three strikes" rule with the need for t hose prisoners who remain in danger of futur e grievous harm to be able to file immediately. Accordingly, we hold t hat 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 th e parties and conclude that no further discussion is

necessary.

18The judgment of the district court will be affir me d.4

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4. The court acknowledges with appreciation the abl e pro bono representation of Appellant by the lawfirm of Jenne r & Block.

19MANSMANN, Circuit Judge, dissenting, with whom Judg es

Sloviter, Nygaard and McKee join.

I.

Today the majority interprets and applies the "thre e 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 liti gation that may be their sole means of vindicating a fundamenta l right.

Because I believe that this case falls within a sta tutory exception, as properly interpreted in Gibbs,1 and t hat the statute, as interpreted and applied by the majority

, substantially burdens fundamental rights without na rrowly serving a compelling governmental inter est, I resp ectfully

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 const itutional right of access to the courts, and we directed inst ead entry of an injunction that would permit such suits subje ct to

certification and review calculated to test for fri volity. See Abdul Akbar v. Watson, 901 F.2d 329 (3d Cir. 1990). While not expressly repudiating our holding in Watson, th e majority nonetheless essentially holds that what th e District Court was then precluded from doing by the Constitution it is now required to do by statute. T oday's holding therefore places us at odds with a well-est ablished line of cases exemplified by Watson.2

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

2. In both Watson and our prior decision in In re P acker 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 hav e held that a total ban on all IFP filings by a particular litigant as a sa nction for abuse is impermissible.") (citing Green and cases from Secon d, Ninth and Tenth Circuits); Joseph T. Lukens, The Prison Litigation Reform Act: Three Strikes and You're Out of Court -- It May Be Effect ive, But Is It

20This case unfortunately illustrates the maxim that bad

cases may sometimes make bad law. This Appellant ha s clearly abused the IFP system, filing some 200 case s, most without merit. The three strikes rule as interprete d by the majority, however, will burden other would-be liti gants who have not filed 200 cases, and whose "strikes" were racked up without any bad faith or abuse.3 It will, moreov er, bar potentially meritorious litigation at the filing st age, 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 ea rlier Gibbs case to the effect that imminent danger is to be de termined as of the time of the incident complained of, and j oins with our sister courts of appeals that have held that da nger must exist at the time the Complaint or appeal isfi led. I joined in, and continue to adhere to, the able opin ion of Judge Garth in Gibbs. In Gibbs we held that a priso ner who alleged two prior attacks by inmates and death thr eats, each related to his identification as a gover nment

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Constitutional?, 70 Temp. L. Rev. 471, n. 90-91 (Su mmer 1997) (providing extensive citations to circuit court cas es requiring that injunctions be narrowly tailored to pr eserve acces s 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 (ext remely narrow, as interpreted by the majority) which is patently insu fficient to safeguard the broad scope of rights jeopardized by the IFP ba n. Cf. Procup, 792 F.2d at 1074 (Clark, J., concurring) (construing li mitation of IFP for abusive prisoner litigant to "claims alleging actua l 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 c laim. The majority's repeated characterization of the statutory bar as a pplying only to prisoners who "abuse" the judicial system byfiling frivolous actions is therefore somewhat misleading.

21informant, and who alleged that his "life[was] in c onstant

danger", provided sufficient allegations of "immine nt danger" to survive the "three strikes" rule. Althou gh our principal holding was that "a complaint alleging im minent danger . . . must be credited as having satisfied t he threshold criterion of S 1915(g) unless[that] eleme nt 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 u nder imminent danger"), because the same subsection else where employs the present tense in refer ence to what are expressly recognized as past events ("if the prison er has brought an action or appeal . . . that was dismiss ed 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 th at such ambiguity must be resolved in favor of pr eserving the right of access to the courts for prisoners threatened wi th bodily injury.

As the majority has acknowledged, the purpose of th e exception is to "prevent[ ] futur e harms." Supra a t 11. This purpose is best served by a liberal interpretation of the exception, one which gives scope to -- and so facil itates -- the deterrent effect of the subsequent damages reme dy available under section 1983. See City of Riverside v. Rivera, 477 U.S. 561, 575 (1986) (plurality) (stati ng that "the damages a plaintiff recovers contribute signif icantly to the deterrence of civil rights violations in the fu ture"). Cf. Gibbs (rejecting argument that "suit for damages ra ther than injunctive relief . . . was not seeking to pro tect . . . physical safety"). 116 F.3d at 85. Contrary to the majority's assertion, the exception as interpreted by Gibbs do es not

"eviscerate" the three strikes rule. A would-be lit igant must plead imminent danger of serious physical injury (r ather than a deprivation of procedural, associational, re ligious or other rights), and the court must determine that su ch danger is or was in fact present if such allegation is

22controverted. 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 impor tance of presenting an appropriately lenient interpretation in this en banc opinion -- which will guide the district court s in their decisions on hundreds, if not thousands, of prisone r filings -- is heightened by the preclusive natur e of secti on 1915(g). That is, the denial of in forma pauperis status an d resultant dismissal of prisoner litigation made pursuant ther eto will be effectively unreviewable, as a truly indigent pl aintiff will no more be able to afford the r equisite filing cos ts for appeal of that dismissal than for the underlying ac tion.

III.

While I disagree with the majority's rejection of t he

standard enunciated in Gibbs for one which determin es the existence of imminent danger at the time the Compla int or appeal is filed, it is the majority's application o f 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 hold ing that imminent danger must be assessed at the time o ffiling is dispositive of this case, and that Appellant was not in such danger. In so assuming, the majority seriously undermines protection of physically endangered pris oners by paying too little heed to ongoing threats.

The majority's lengthy explication of statutory ten se 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 oc cur at any moment or impending", supra at 11, is far too restrictive. In a real-world prison setting, the ti ming of an attack cannot be so neatly predicted. It may be tha t an ongoing threat of danger looms over a prisoner for an extended period. At any given moment, the har m mig ht not be "about to" occur; then again, it might. Such is the nature of "danger". It involves risk, not certainty

.

23The phrase "imminent danger" is not defined in the

PLRA. It may be instructive, however, to consider t he definition accorded the same phrase in other contex ts. For example, under the Eighth Amendment prison authorit ies must protect prisoners not only from curr ent threa ts, but also from "sufficiently imminent dangers"; the cour ts have defined that phrase as encompassing those dangers"l ikely to cause harm in the `next week, month, or year.' " Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995) (quot ing Helling v. McKinney, 509 U.S. 25 (1993); Payne v. C ollins, 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 har m" in the preliminary injunction context, we have held that s tandard 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 consideratio n of the likelihood of an ongoing danger, as evidenced b y past events. See, e.g., O'Shea v. Littleton , 414 U.S. 4 88, 496 (1974) ("past wrongs are evidence bearing on whethe r 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

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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 contin uing conditions).

5. BP Chemicals Ltd. v. Formosa Chemical & Fibre Co rp., 229 F.3d 254, 263 (3d Cir. 2000) (citing Charles Alan W right, Ar thur 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 har m 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 c ondition . . . which could `[r]easonably be expected to cause substantia l harm . . . before

such condition . . . can be abated.' " Hodel v. Va. Surface Mining & Reclamation Assn., 452 U.S. 264, 301 (1981), quotin g the Surface Mining Control and Reclamation Act, 30 U.S.C.S 1291 (8) (1976 ed., Supp. III).

24held that a prisoner placed in continuing pr oximit y to

inmates on his "enemy alert list" and subject to pr ior assaults "properly alleged an ongoing danger" and s o "[met] the imminent danger exception of section 1915(g)." 147

F.3d at 717.6

Appellant's litigious history may incline us to r e ad his Complaint with a certain degree of skepticism. None theless, our precedents require us to construe pleadings, an d especially pro se pleadings, liberally. See Gibbs, 116 F.3d at 86 (observing that "[u]nder our liberal pleading ru les" all allegations should be construed "in favor of the complainant") (citations omitted). Reading the Comp laint in the light most favorable to Appellant, I find his c laimed predicament alarming.

Appellant, a black inmate, brought this action seek ing, 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. Appell ant is a particular target of the guards' animus, as he asse rts they are engaged in a conspiracy to retaliate against Ap pellant 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 ord ers or for "saying something an officer don't like." App. 10. "[M]ajor problems happen on the white [guards'] shifts, espe cially Black inmate's [sic] getting sprayed arbitrarily wi th pepper gas." App. 13. Although Appellant complained for ov er a year about the abuse of pepper gas, no restraint wa s 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 Appella nt was not limited to attacks directed against him. Rather , the use

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6. See also Choyce v. Dominguez, 160 F .3d 1068 (5t h Cir. 1998) (remanding for reconsideration of imminent danger d etermination where prisoner alleged incident complained of "was only o ne episode in an ongoing pattern of threats and violence" in retalia tion for prior litigation).

25of pepper gas "effects [sic] every inmate . . . in the area".

For example, in December, 1997, Appellant was expos ed 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 a ttempt to have [Appellant] hurt or killed", a guar d told an inmate that Appellant had "snitched" on him and other inma tes. App. 12. Although Appellant feared for his life as a result of this incident, his request for protective custody w as not honored. App. 12.

On January 8, 1998 Appellant was transferred to a c ell block with no window "for the express purpose's [si c] of having [him] in an area where the[racist guards] co uld harass, set up and try to kill [him]". The very nex t day, one of the defendant guards, again in the pr esence of other inmates, accused Appellant of informing, and procee ded to spray him with an entire can of pepper gas, whereup on Appellant collapsed with an asthma attack, "fightin g for breath on the floor" and the guard"left [him] on th e floor to

die."

As far as the record reflects, none of the foregoin g 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 ins titution controlled by guards who believed he did not have a ny 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 estra int on that practice; (iii) Appellant had been injured twice by pepper gas within just the past 10 weeks prior to filing; 8 (iv) the

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7. Although many of the foregoing allegations may s trike 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 purpos es. Cf. Gibbs, 116 F.3d at 86 (holding that a district court should ac cept the allegations in the Complaint in determining imminent danger for IF P 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 short ly [within one month]

26guards had incited hostility toward Appellant on th e part of

other prisoners by labeling Appellant as an infor m ant;9 and (v) Appellant was housed in a cell block selected t o facilitate attacks by guards and inmates. These unabated condi tions clearly give rise to an ongoing imminent danger .

Hence, I believe the facts alleged in this case pla ce Appellant squarely within a proper interpr etation of the exception to the three strikes rule. In Gibbs, as i n Ashley and Choyce, there were similarly sufficient avermen ts 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 Ch oyce, without carefully analyzing the sufficiency of the allegations of ongoing danger.11

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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 wasfile d 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 involv e confrontations . . . between inmates who are being disciplined and those who would charge or furnish evidence against them. Retaliation is mu ch 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 t hreats and attacks; Gibbs claimed his "life [was] in constant danger" a nd conditions were unaddressed until litigation filed; prisoner was tr ansferred during pendency of appeal); see also supra n. 6 and accomp anying text (discussing Ashley and Choyce).

11. The majority neglects duly to consider the actu al averments of Appellant's complaint, instead observing that "at n o 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 sta ted at oral argument that "if you look to the complaint itself, . . . he alleges a continuing course of conduct." Moreover, Appellant's counsel e xpressly "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 suffici ency of allegations of ongoing harm, and in doing so applies too exacting a standard. Turning

27The result is that, henceforth in this Cir cuit, pr isoners

with three strikes seeking IFP status will be faced with an insurmountable obstacle: they must show that a seri ous physical injury is "about to" befall them"at any mo ment", and apparently they may not predicate their showing on an ongoing risk based on past events.12 What, then, wi ll suffice? Must a prisoner be running from his attack ers 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 dr astically impoverished version of the exception allowed by th e majority cannot well fulfill its putative office as "a safety valve . . . to prevent impending harms". Supra at 1 113

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briefly to the complaint, the majority expr esses " doubt whether [it] suffice[s] to establish such an ongoing danger." Su pra at 12 n.1. Of course, under our liberal pleading rules such a dou bt should be resolved for, rather than against, Appellant. Similarly, the majority's observation that some of Appellant's allegations are "generaliz ed" 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 (1 957). This lenity in pleading review is especially important as applied to an indigent, incarcerated, pro se litigant whose access to the c ourts is narrowly

circumscribed.

The majority concludes that Appellant's allegations fall short because the several acts of which he complains are"unconnec ted", and do not form a "pattern". Supra at 12 n.1. A fair reading o f the complaint indicates, however, that the events ar e connected by two alleged ongoing factors: a long-established practice of arbitrary u se of pepper gas against black inmates, and a specific animus on the part of the guards against Appellant. Moreover, in suggesting that the mere pa ssage of time

between the incidents and after the last incident m eans that the danger was no longer imminent at the time of filing, the m ajority disregards the continuing, unremedied nature of the factors that a llegedly caused the incidents. Indeed, the occurrence of multiple incid ents over a substantial time period supports rather than under mines the co nclusion that Appellant's danger was ongoing. 12. Cf. O'Shea, supra.

13. The majority's narrow reading of the exception will have a farreaching effect, as persistent, ongoing imminent da nger 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. Frust ration, resentment and despair are commonplace.").

28A prisoner's resort to the courts may be expected t o avert

impending danger not only by correcting unlawful conditions,14 but by deterring prison officials fro m unlawful conduct. Under the majority's interpretation, the p otential deterrence of civil rights damages would be lost wi th respect to indigent prisoners with a history of pri or failed suits. That is, guards would be free to abuse or re taliate against such prisoners without fear of civil liabil ity, 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 affor ded civil rights under section 1983 is exacerbated by o ther factors which, by delaying access to courts, incr e ase the likelihood that past abuses will effectively be imm unized because a danger will no longer be "imminent" at th e time of filing.15

Finally, even in the rare case that satisfies the m ajority'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 find s himself in a peculiar position: he must once again meet the "imminent danger" requirement at that moment in tim e in order to file an appeal IFP. It is highly improbabl e 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, to day's

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14. Such correction may occur through formal interv ention of the courts or through voluntary redress in r esponse to a pris oner'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 eatene d or attacked are often subject to administrative solitary confinemen t or hospitalization, respectively. Moreover, our recent decisions in Boo th v. Churner, 206 F.3d 289, 291 (3d Cir. 2000) and Nyhuis v. Reno, 20 4 F.3d 65, 67 (3d Cir. 2000) require the exhaustion of internal priso n remedies as a prerequisite for filing an action underS 1983 or Bi vens.

29holding 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 e cted conditions. See supra n. 6 and accompanying text.16 We cannot avoid a conflict by reciting similar standar ds, while reaching inconsistent results.

I would hold that the exception applies, in accor d with Gibbs, Ashley and Choyce; and I would leave for ano ther 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 interp reted the exception narrowly and has found this case within t he 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 governmenta l 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

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16. It should be noted that Choyce took a noticeabl y 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 co nstitutional adjudication is to be avoided, and, toward that end, that when ` a construction of the statute is fairly possible by which the [constituti onal] question may be avoided,' such construction should be given" Roe v. Casey, 623 F.2d 829 (3d Cir. 1980) (Hunter, J., concurring) (quoting As hwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandei s, 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 r easons that neither prisoners nor indigents are suspect classes. It doe s 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), ind igent prisoners are a

30deemed 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 Cranc h) 137, 163 (1803) the Supreme Court observed that"[t]he ve ry essence of civil liberty certainly consists in the right of every individual to claim the protection of the law s, whenever he receives an injury." Mor e recently, th e Court has repeatedly recognized the fundamental importanc e of the right of access to courts.20

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discrete, insular minority that is perhaps the grou p least able to protect its fundamental rights through majoritarian pr oces ses. Cf. United States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938) ("whether prejudice against discrete and insular minorities m ay be a special condition, which tends seriously to curtail the ope ration of those political processes ordinarily to be relied upon to protect m inorities, and which may call for a correspondingly more sear ching judi cial 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." Magn a 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 1 208, 1219 (3d Cir. 1987). The effect of this guaranty was explained by Sir Edward Coke as

follows:

[E]very subject . . . for injury done to hi m .. . , by any other subject, be he . . . free, or bond, . . . or be he o utlawed, . . . or any

other without exception, may take his remedy by t he course of the law, and have justice, and right for the injury done to him, freely

without sale, fully without any deniall, and speedi ly 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 (1 956) (holding that

state courts may not deny appellate review to criminal de fendants due to their inability to pay transcript fees); Burns v. Ohio, 3 60 U.S. 252 (1959) (requiring states to waive filing fees for indigent prisoners in criminal cases); Boddie v. Connecticut, 401 U.S. 371, 380 (1 971) (extending Griffin to civil divorce context, reasoning that"a cost req uirement, valid on its face, may offend due process because it operates to foreclose a particular party's opportunity to be heard."); Johnson v. Aver y, 393 U.S. 483, 485- 86 (1969), (striking down ban on prisoners assistin g other inmates withhabeas corpus petitions, explaining that "it is fun damental that access of

31In Wolff, supra, the Supreme Court held that prison ers

have a constitutional right to bring civil rights a ctions before the courts. "The right of access to the cour ts . . . 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 fund amental 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 (19 77).22 The Court in Bounds described this right of access as "fundamental", and held that it requir es that pris oners receive "a reasonably adequate opportunity to prese nt

claimed violations of fundamental constitutional ri ghts to the courts." Bounds, 430 U.S. at 825, 828. Finally, in Lewis, the Court indicated that inmates' right of c ourt 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 acc ess applies even to litigious prisoners such as Appella nt. 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; legitimat e claims should receive a full and fair hearing no matter ho w litigious the plaintiff may be.").

In view of this long and virtually unbroken array o f

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prisoners to the Courts for the purpose of pr esent ing their complaints may not be denied or obstructed", and observing tha t "a State may not validly make the writ available only to prisoners w ho could pay a $4 filing fee."); Wolff,supra (applying holding and ra tionale ofAvery to

civil rights actions).

21. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (s tating 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 "rig ht of access to the courts" as "already well-established" when Bounds w as decided).

32authority,23 it can scarcely be disputed that priso ners' 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 r ights are involved. See McCarthy v. Madigan, 503 U.S. 140 , 153 (1992) ("[T]he right to file a court action might b e said to be [a prisoner's] remaining `most fundamental politica l right, because preservative of all rights.' ") (quoting Yi ck Wo v. Hopkins, 118 U.S. 356, 370 (1886)).24 Even if acce ss to courts were not itself a fundamental right, denial of access should still be subject to strict scrutiny to the e xtent 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 case s. . . when denial of a judicial forum would implicate a fundam ental human interest". Supra at 15. However, it declines to address whether Appellant's claims involve fundamen tal rights.26

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23. Only twice in our history has the Supr eme Cour t approved exaction of fees which had the effect of excluding an indige nt would-be party from court. Both cases involved gratuitous government be nefits, rather than underlying constitutional rights. See United States v. Kras, 409 U.S. 434 (1972) (bankruptcy); Ortwein v. Schwab, 410 U.S. 65 6 (1973) (welfare).

24. See also Adams v. Carlson, 488 F.2d 619, 630 (7 th 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 co nstitutionally improper behavior, . . . prisoners . . . would be d eprived of the first -- and often the only -- `line of defense' against con stitutional 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 li tigate a matter affecting a fundamental interest, any legislation that substa ntially burdens the right of access to the courts must be subject to st rict 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 the33Notwithstanding the majority's avoidance of the iss ue, 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 seri ous physical injury,27 and from racially discriminatory assault. 28 That these rights are fundamental to our constitutional system cannot be gainsaid.29

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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 o r equal protection challenge. In any event, so long as we are addr ess ing the level of scrutiny to apply, we cannot avoid deciding whether a fundamental right

is burdened.

The majority responds that "the importance of the u nderlying right is largely immaterial to the question whether that rig ht is a fundamental interest for Boddie purposes", because "an underlyi ng constitutional

entitlement rises to the level of a Boddie fundamen tal interest only when the government blocks the sole legal means for safe guarding that entitlement . . . ." Supra at 13 n.2. I believe thi s response conflates

the elements of fundamental right and burden: the impor tance of the right at stake is precisely what determines whether it is "fundamental"; while the availability of other means to safeguard the ri ght may help to determine the extent to which the right is bur dene d, 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 prot ected 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 evie w to section 1915(g), four of these cases were explicitly premised on the absence of an underlying fundamental interest. See Carson v. John son, 112 F.3d 818, 821 (5th Cir. 1997) (holding prisoner had no fundam ental interest in subject of suit); Rivera v. Allin, 144 F .3d 719, 7 24 (11th Cir. 1998) ("Rivera's well-pled allegations . . . plainly adva nce no cognizable fundamental interest."); Rodriguez v. Cook, 169 F.3 d 1176, 1180 (9th Cir. 1999) (agreeing with Carson and Rivera that "w here 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 o f action extends to suits seeking to vindicate basic constitutional rig hts, but concluding

that

34Moreover, other fundamental rights ar e sure to be

implicated in cases barred by the three strikes rul e. For example, a suit charging denial of a prisoner's rel igious

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 19 96), appeal dismissed, 127 F.3d 763 (8th Cir . 1997) (di smissing prisoner's free exercise of religion claim pursuant to three strikes rule). Cf. O'Lone v. Estate of Shabazz , 48 2 U.S. 342, 348 (1987) (recognizing prisoner's fundamental righ t to free exercise of religion).30

It seems clear that section 1915(g) substantially b urdens affected prisoners' access to the courts and thereb y burdens their enjoyment of whatever underlying righ ts they may seek to enforce in court. The statute's ef fect , in contravention of our law going back to the Magna Ca rta, is either to sell, to delay or to deny justice to the prisoners subject to its strictures.31 If they cannot buy ent ry into court, they must wait until they can; and if the wa it is too long, justice will be denied to them.32

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prisoner failed to state a claim for violation of t he Eighth Amendment). The fifth case, Wilson v. Yaklich , 148 F.3d 596 (6 th Cir. 1998), acknowledged that the constitutional right of acces s 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 s tate court. Id. at 605 (citations omitted).

30. See also Stacey H. O'Bryan, Note, Closing the C ourthouse Door: The Impact of the Prison Litigation Reform Act's Physic al 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 racia l segregation, the right to privacy, and the right to be free fr om non-phys ical 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 prohi bition 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 th e filing fee in some cases". Supra at 11.

35In response to the apparent burden on fundamental

rights, the majority makes two arguments: First, th e majority argues that section 1915(g) does not preve nt affected prisoners from filing their actions, but o nly from enjoying IFP status. The same argument was pr eviou sly 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 con straints 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 h urdle. See Boddie, 401 U.S. at 380 (acknowledging that a f acially valid fee may "offend due process because it operat es to foreclose a particular party's opportunity to be he ard."); Green, 669 F.2d at 786 (describing a prepayment requirement as a "potentially pr ohibitive financia l barrier" to court access on the part of the affected indigen t prisoner). The majority does not, however, r eally miss this point: in the very same paragraph in which it ar gu es that section 1915(g) does not block access to the federa l courts, it concludes that precluding suit in federal court as a practical matter is precisely what Congr ess intend ed. See supra at 10-11.33

Because it ultimately recognizes the practical real ity that access to the federal courts will be delayed or den ied for some, the majority repairs to its second ar gument: that foreclosing the federal forum imposes no r eal burd en, as prisoners may bring the same civil rights claims in state courts, "where limitations on filing I.F .P. may no t be as strict." Supra at 10 (emphasis added); see also sup ra at 15. In the end, the majority's rejection of strict scru tiny is expressly predicated on the presumed availability o f a state law forum.34 See supra at 16 ("Because neither Dela ware substantive law nor Delaware court rules pr evented

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33. See also Banos, 144 F.3d at 885 n. 1 ("It is po ssible that a potential litigant who is denied IFP status under this pr ovi sion will not have the ability to pay the entire filing fee within the sta tute of limitations or,

in the case of an appeal, within the time for filing a n appeal, and will thereby be precluded from litigating or appealing h is 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 action s and the resultant absence of any "recognized, effective alternatives" for resolution. Boddie, 401 U.S. at 375-76. The case does not, however , st and for the proposition that availability of a state forum jus tifies selective denial

ofaccess to a federal forum for the vindication of fe deral civil rights

claims.

36[Appellant] . . . from pursuing his claims, we do n ot agree

that strict scrutiny is the appropriate test.") (em phasis 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 litig ate his federal constitutional causes of action in forma pauperis i n state court."). But cf. Rivera, 144 F.3d at 724 n.9 (decl ining to place reliance on availability of state forum).

Even assuming that a state forum is available, howe ver, it is by no means clear that denial of a federal f orum does not in itself impose a substantial burden on the ri ght 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 constitutio nal rights."); see also Procup, 792 F .2d at 1070 ("An absolute bar against a prisoner filing any suit in federal c ourt would be patently unconstitutional."); Green , 669 F.2d a t 786 (concluding that "constitutional right of access to the courts" was "unduly impair[ed]" by or der that effe ctively 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 cou ld "not be allowed to stand").36

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35. If, as appears to be the case, the statute's co nstitutionality as applied to suits based on fundamental rights hinges on the availability of an adequate state forum, we should make this limitatio n explicit in order to guide the District Courts.

36. The argument that federal courts may turn a dea f ear to those who have access to state courts "disregar ds the histor ic importance of access to federal courts to pursue civil rights claims und er 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 purpo se 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 fe deral remedy justified a filing fee that effectively barred indigent priso ners from state court.

See

37Although the alternative forum argument may have

superficial appeal, I do not believe it can withsta nd searching examination. In the first place, the argu ment neglects to consider foreclosure of the courts to t he "threestrikes" prisoner in states which have adopted para llel legislation.37 This is not mer ely an academic conc ern. The Commonwealth of Pennsylvania appeared as an amicus curiae in this case and explained that the "many th ousands of prisoners" housed in Pennsylvania's thirty-nine correctional facilities "annually file hundreds of federal civil actions directed against state officials and employ ees", and implied that a substantial number of those actions would be affected by the decision announced her ein. Beca use 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 fundamen tal the rights at stake.38

In the second place, the alternative forum ar gumen t also neglects the potential implications of removal to f ederal court. Federal-law civil rights actions filed in st ate court generally may be removed by the defendants, with th e likely

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Smith v. Bennett, 365 U.S. 708 (1961). T o paraphra se the Court's admonition, "it would ill-behoove this gr eat [nati on], whose devotion to the equality of rights is indelibly stamped upon it s history, to say to

its indigent prisoners seeking to redress what they bel ieve to be [violations of federal law]: `go to the [state] court.' " Id. a t 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 Smit h Camp, Why Nebraska Needs Prison Litigation Reform, 76 Neb. L. Rev. 781, 781 (1997) (proposing parallel state legislation in Neb raska); Three Strikes,

71 U. Colo. L. Rev. at 209-210 (predicting that"[o]the r states are likely to respond similarly to the influx of claims br ought by [prisoners] who are otherwise precluded from bringing suit in forma pau peris").

38. In its amicus brief, Pennsylvania ar gues that a state forum is available, but inexplicably neglects to notify us t hat the purported alternative is generally unavailable to Pennsylvani a prisoners with claims concerning prison conditions.

38effect that an indigent plaintiff subject to the th ree strikes

rule would lose his ability to appeal.39 The prosp ective loss of such an important procedural safeguar d is a ver y 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, t he next step is to examine whether it is narrowly tailored to serve a compelling governmental interest.

As identified by the majority, the congressional pu rpose behind section 1915(g) was to deter frivolous lawsu its through "economic incentives that would pr ompt pri soners to `stop and think' before filing a complaint." Sup ra 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 "dis qualifying frequent filers who have failed in the past to care fully

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39. See The Prison Litigation Reform Act, 70 Temp. L. Rev. at 513-517 (observing that if defendant removes the case to fe deral court as permitted under 28 U.S.C. S 1441, plaintiff may los e his right to appeal the federal claims if he is within the provisions o f section 1915(g) and cannot afford prepayment in full; he may also be un able 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 court s or a right to appellate review at all. But that is not to say tha t a State that does grant appellate review can do so in a way that discrimina tes 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 d enied 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 p ay for the privilege of demanding one's rights." Id.39evaluate their claims" can serve as a "deterr ent

mechanism". Supra at 17 (emphasis added). No matter how long a disqualified prisoner such as Appellant stop s, 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 rul e to past filings cannot further the statute's asserted deter rent 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 cal culated to have that effect. See 28 U.S.C.S 1915(b) (requir ing prisoners with IFP suits to pay filing fee in insta llments, in lieu of prior practice of waiving fee). This sectio n corrects the perceived problem of inmates filing suits with no financial consequences, while at the same time ensu ring that the truly indigent prisoner will not be denied access to the courts solely because he lacks the requisite fu nds.43 The disincentive supplied by the three strikes rule , on the other hand, is not purely economic. For the truly i ndigent, the rule threatens a loss of the fundamental right of access

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

economic deterrent.44

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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) (pr oviding 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 ea son that the prisoner has no assets and no means by which to pay the init ial partial filing fee."). This saving provision is inapplicable to pr isoners 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 t o say that the three strikes rule is rationally related to its goal beca use it is within congressional power. See supra at 18 ("Preventing f requent filers from obtaining fee waivers is rationally related to the legitimate government interest of deterring frivolous lawsuits because `C ongress is no more compelled to guarantee free access to federal court s than it is to provide unlimited access to them.' "). This is patently a n on sequitur.

40In any event, even assuming that the goal of deterr ing

frivolous suits is a compelling governmental intere st, and that the three strikes rule somehow furthers that g oal, the

statute nevertheless cannot withstand strict scruti ny because at best there is only a very poor fit betwe en end and means. As a mechanism for deterring frivolous c laims, 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 an d nonprisoners with sufficient funds.45 On the other han d, it cuts off non-frivolous claims filed by indigent prisoner s 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 epaymen t requirements disapproved in Green and its progeny.4 7 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 unconstitution al: "Assuming a law enacted to [deter frivolous appeals ] to be otherwise valid, the present statutory classificati on is no less vulnerable under the Equal Protection Clause w hen

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45. See, e.g., Mary Tushnet and Larry Y ackle, Symb olic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effe ctive Death Penalty Act and the Prison Litigation Reform Act, 47 Duke L. J. 1 (Oct. 1997) ("[N]otably, the statute allows any prisoner who ca n 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 deni al of constitutional right where blanket bar to IFP filings failed to "c onsider[ ] 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 tofl ood the courts with

paper provided that he pays the going rate: or de rs erecting financial barriers are only as effective as the litig ant is truly impoverished. On the other hand, these restrictions are clum sily overinclusive: if Green does not have the money to file a fri volous claim, he also

does not have the money to file a legitimate one

.

669 F.2d 779.41viewed in relation to that function. By imposing a financial

obligation only upon inmates of institutions, the s tatute inevitably burdens many whose appeals, though unsuccessful, were not frivolous, and leaves untouc hed 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 ha ve 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 eli gious 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 p rudent[ ] response to the problem presented").50

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48. The injunction that apparently r emains in effe ct against Appellant, setting special filing preconditions in r esponse t o 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 191 5A, 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 measu res, directed at particular abusers and particular frivolous claims, are clearly more narrowly tailored to serve their pr oper end than t he three strikes classification, which lumps good faith err or with abuse and stifles meritorious claims along with frivolous ones. See L ukens, 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 t he traditional discretionary power of the courts to limit abusive litigation by an individual prisoner based on his particular cir cum stances, the "three dismissal rule" gave no consideration to, e.g., len gth of incarceration, number of meritorious actions, or "other pertinent information that might guide a federal court in properly limiting ab use . . . ." 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 con straints require "neither a perfect nor even best availablefit" betw een statutory ends and

42Because section 1915(g) is not narrowly tailor ed t o serve

a compelling governmental purpose, its substantial infringement of indigent prisoners' fundamental rig ht of access to the courts, and of the constitutional rig hts 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 b y the Fifth Amendment.51 Cf. Romer v. Evans, 517 U.S. 633 (1996) ("A law declaring that in general it shall b e more difficult for one group of citizens than for all ot hers 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. Marian i, 212 F.3d 761, 774 (3d Cir. 2000) (en banc), is not entir ely apt. Sec tion 1915(g) is not constitutionally deficient because it is mer ely im perfect or sub-optimal; rather, its very high degree of both under- and ove r-inclusiveness renders it an extremely poor fit. Cases such as Mar iani, which permit a certain degree of under-inclusiveness in statutes t hat burden First Amendment rights, therefore do not advance the inqu iry. In the context of an equal protection challenge to a bur den on ac cess to the courts, the Supreme Court has found the same type of under - an d overinclusiveness at issue here to be constitutionally impermissible. See Rinaldi, supra at 41-42.

51. This conclusion is in accord with an apparent c onsensus among commentators who have addressed the constitutionali ty of the PLRA's three strikes provision. See, e.g., Lukens, The Pri son 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 Stat utes 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 Con stitutionality and Implications of the Prison Litigation Reform Act, 4 2 N.Y.L. Sch. L. Rev. 205 (1998).

52. In addition to its infirmity on equal protectio n 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 majori ty, the three strikes

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rule seeks to deter prisoner litigation by "disqual ifying frequent filers who have failed in the past to carefully evaluate t heir claims prior to filing." Supra at 17. Cf. Hughes Aircraft Co. v. Un ited States, 520 U.S. 939, 947 (1997) (stating that a statute which "atta ches a new disability, in respect to transactions . . . already past, must be deemed retrospective") (quoting Soc. for Propagation of th e Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (C.C.N.H. 1814) (Stor y, J.)).

The Supreme Court has identified three r equirement s for finding that a challenged statute is a bill of attainder: "speci fication 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) pl ainly is directed

toward "specifically designated persons or groups". Id., q uoting United States v. Brown, 381 U.S. 437, 447 (1965). The af fected pris oners are identified by an objectively ascertainable, immutable characteris tic -- 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 ackn owledge a punitive purpose and effect: "Potentially negative consequen ces in federal courts . . . are precisely the consequences intended by Co ngress. The outcome predicted by Appellant [i.e., that a prisoner "coul d forever lose his ability to bring his suit as a practical matter"] is . .. e xactly what Congress intended." Supra at 10-11. Cf. Green, 669 F.2d at 7 86 (characterizing as "simply punitive" a prepayment requirement which "i s not geared to discerning whether each claim presents a new nonfri volous issue" and whichs seeks to "deter" by "assum[ing]" that the af fected prisoner "will not be able to meet the required filing fee"). Fina lly, as to the third element, section 1915(g) imposes its deprivation wi thout 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).

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