2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-29-2001

Abdul-Akbar v. McKelvie

Precedential or Non-Precedential:

Docket 98-7307

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Filed January 29, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-7307 

DEBRO S. ABDUL-AKBAR, 

 Appellant 

v. 

RODERICK R. McKELVIE, Honorable; JAMES COLLINS; 

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

MELVIN HENESSEY; MICHAEL DELOY; 

JOE JOHNSON, Lt.; STEPHEN H. SMYK 

On Appeal from the United States District Court 

for the District for Delaware 

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

District Judge: Honorable Roderick R. McKelvie 

Submitted Under Third Circuit LAR 34.1(a) 

February 18, 2000 

Before: BECKER, Chief Judge, ALITO and ALDISERT, 

Circuit Judges. 

Argued November 1, 2000 

Before: BECKER, Chief Judge, SLOVITER, MANSMANN, 

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

BARRY, AMBRO, FUENTES and ALDISER T, 

Circuit Judges. 

(Filed: January 29, 2001) 
 Jerold S. Solovy, Esq. 

 Barry Levenstam, Esq. (argued) 

 Paul M. Smith, Esq. 

 Jessie K. Liu, Esq. 

 JENNER & BLOCK 

 One IBM Plaza 

 Chicago, IL 60611 

 ATTORNEYS FOR APPELLANT 

 Carl Schnee 

 United States Attorney 

 Keith M. Rosen (argued) 

 Assistant United States Attorney 

 Chase Manhattan Centre 

 Suite 1100 

 1201 Market Street 

 P.O. Box 2046 

 Wilmington, DE 19899 

 ATTORNEYS FOR APPELLEE, 

 Hon. Roderick R. McKelvie 

 Loren C. Meyers 

 Chief of Appeals Division 

 Robert F. Phillips (argued) 

 Deputy Attorney General 

 Stuart B. Drowos 

 Deputy Attorney General 

 Delaware Department of Justice 

 820 North French Street 

 Wilmington, DE 19801 

 ATTORNEYS FOR APPELLEES, 

 James Collins; James Tyndall; 

 Earl Messick; Turrit, Capt.; Melvin 

 Henessey; Michael Deloy; Joe 

 Johnson, Lt.; Stephen Smyk 

 2 
 D. Michael Fisher 

 Attorney General 

 John G. Knorr, III 

 Chief Deputy Attorney General 

 Chief, Appellate Litigation Section 

 Calvin R. Coons 

 Senior Deputy Attorney General 

 Office of the Attorney General of 

 Pennsylvania 

 15th Floor, Strawberry Square 

 Harrisburg, PA 17120 

 ATTORNEYS FOR 

 COMMONWEALTH OF 

 PENNSYLVANIA, Amicus Curiae 

OPINION OF THE COURT 

ALDISERT, Circuit Judge. 

The primary issue for decision is whether we should

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

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

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

prisoner may not file a new action or appeal in forma 

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

incarcerated or detained, the prisoner has br ought a federal 

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

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

prisoner "is under imminent danger of serious physical 

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

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

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

sister courts of appeals have since rejected our teachings in 

Gibbs, holding instead that the court should assess

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

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

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

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

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

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

now abandon the interpretation set forth in Gibbs and 

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

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

I. 

Appellant Debro Siddiq Abdul-Akbar was most r ecently 

incarcerated by the Delaware Department of Corrections 

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

including robbery, conspiracy, assault and shoplifting. 

During the time material to Appellant's underlying 

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

incarcerated at the Sussex Correctional Institute in 

Georgetown, Delaware. On May 17, 1999, Appellant 

reported to a community confinement center , and on May 

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

Department of Corrections. 

Appellant has filed at least 180 civil rights or habeas 

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

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

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

court order barring Appellant from filing any further S 1983 

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

injunction precluding a prisoner fromfiling any S1983 

claims without leave of court and without making certain 

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

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

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

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

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

Corrections, 910 F. Supp. at 1009. 

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

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

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

that on or about January 9, 1998, prison officials 

arbitrarily sprayed Appellant with pepper gas and r efused 

to provide him with medical treatment even though they 

knew that he suffers from asthma. Appellant also claimed 

that certain prison officials violated his civil rights by 

belonging to a racist organization, that one defendant failed 

to investigate properly the pepper spray incident, and that 

the district court judge violated his Sixth Amendment right 

 4 
of access to the courts by preventing his complaints from 

being heard. 

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

reasoning that (1) Appellant had brought actions that the 

court had dismissed as frivolous on more than three prior 

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

danger of serious physical injury. 

The district court had jurisdiction over this case under 

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

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

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

filed. This court reviews de novo issues of statutory 

interpretation, Pennsylvania Mines Corp. v. Holland, 197 

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

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

1999). 

II. 

The discretionary power to permit indigent plaintiffs to 

proceed without first paying a filing fee was initially codified 

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

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

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

that administrative court costs and filing fees, both of 

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

would not prevent indigent persons from pursuing 

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

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

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

potential for abuse, and it included a subsection allowing 

for dismissal of frivolous or malicious actions. Denton, 504 

U.S. at 31. 

Congress subsequently enacted the Prison Litigation

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

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

heavy volume of frivolous prisoner litigation in the federal 

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

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

number of prisoner suits filed "has grown astronomically-- 

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

 5 
enacting the PLRA, Congress concluded that the large 

number of meritless prisoner claims was caused by the fact 

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

not subject to the same economic disincentives tofiling 

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

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

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

become a recreational activity for long-term residents of 

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

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

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

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

PLRA instituted a number of reforms in the handling of 

prisoner litigation. 

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

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

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

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

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

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

way of an initial partial fee, followed by installment 

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

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

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

prisoner abuses the judicial system by filing frivolous 

actions. Prisoners may avoid the limitation in this

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

serious physical injury." 

This appeal requires us to decide when the existence of 

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

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

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

when the complaint is filed. 

Today we abandon the rule announced in Gibbs that 

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

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

the Fifth, Eighth and Eleventh Circuit Courts of Appeals, 

that a prisoner may invoke the "imminent danger" 

exception only to seek relief from a danger which is 

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

that this interpretation is consistent with the plain 

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

the legislative purpose of the PLRA as a whole. 

III. 

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

analysis with the language of S 1915(g): 

 In no event shall a prisoner bring a civil action or 

 appeal a judgment in a civil action or proceeding under 

 this section if the prisoner has, on 3 or mor e prior 

 occasions, while incarcerated or detained in any 

 facility, brought an action or appeal in a court of the 

 United States that was dismissed on the grounds that 

 it is frivolous, malicious, or fails to state a claim upon 

 which relief may be granted, unless the prisoner is 

 under imminent danger of serious physical injury. 

A. 

We now apply settled precepts of statutory construction 

and take as our beginning point a recognition that from the 

earliest times, we have adopted what is called the American 

Plain Meaning Rule exemplified in Caminetti v. United 

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

omitted): 

 It is elementary that the meaning of the statute must, 

 in the first instance, be sought in the language in 

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

 law is within the constitutional authority of the law- 

 making body which passed it, the sole function of the 

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

 language is plain and admits of no more than one 

 meaning the duty of interpretation does not arise and 

 the rules which are to aid doubtful meanings need no 

 discussion. 

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

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

Congress, and where its will has been expr essed in

reasonably plain terms, that language must ordinarily be 

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

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

 7 
function of the court is to enforce the statute according to 

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

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

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

of a statute will produce a result demonstrably at odds with 

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

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

B. 

We now apply the ordinary meaning of the words chosen 

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

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

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

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

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

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

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

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

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

danger of serious physical injury" is an exception to the 

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

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

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

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

contemplates that the "imminent danger" will exist 

contemporaneously with the bringing of the action. 

Someone whose danger has passed cannot reasonably be 

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

danger reasonably be described as "imminent." The court 

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

1998): 

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

 and `is' demonstrates, an otherwise ineligible prisoner 

 is only eligible to proceed IFP if he is in imminent 

 danger at the time of filing. Allegations that the 

 prisoner has faced imminent danger in the past ar e 

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

 authorize the prisoner to pay the filing fee on the 

 installment plan. 

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

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

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

danger sometime in the past is an insufficient basis to 

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

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

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

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

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

plainly means that a prisoner is not permitted to file his 

complaint unless he is, at that time, under imminent 

danger. Viewed from the Plain Meaning Rule, we interpret 

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

prisoner bring[s] a civil action." 

IV. 

Reinforcing the interpretation of the statute by 

application of the Plain Meaning Rule is an analysis of 

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

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

 In no event shall a prisoner be prohibited from bringing 

 a civil action or appealing a civil or criminal judgment 

 for the reason that the prisoner has no assets and no 

 means by which to pay the initial partial filing fee. 

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

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

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

condition by using the present tense of the operative verb. 

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

prohibit a prisoner from filing a new complaint for the 

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

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

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

Other provisions support this construction by focusing 

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

by the PLRA, requires that the plaintif f exhaust 

administrative remedies, but only if the plaintiff is a 

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

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

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

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

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

 9 
216 F.3d 970, 974-975 (11th Cir. 2000). Finally, the need 

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

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

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

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

V. 

Appellant argues that requiring pr oof of imminent danger 

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

Having applied the American Plain Meaning Rule and 

having determined that there is no ambiguity, we are not 

required to answer this contention of the Appellant. 

Nevertheless, we perceive the congressional intent as clear 

when we examine the purpose of the entire PLRA. 

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

limit the filing of frivolous and vexatious prisoner lawsuits. 

To accomplish this, Congress curtailed the ability of 

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

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

powerful economic incentive not to file frivolous lawsuits or 

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

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

occasions, abused the system by filing frivolous or

malicious lawsuits or appeals, no matter how meritorious 

subsequent claims may be. 

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

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

prisoner the privilege of filing before he has acquired the 

necessary filing fee. Appellant argues that a prisoner 

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

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

to bring his suit as a practical matter because of the 

difficulties of obtaining the money, the application of the 

statute of limitations, or the possible loss of necessary 

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

overlooks the fact that prisoners may seek r elief in state 

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

Potentially negative consequences in federal courts, as 

distinguished from state courts, ar e precisely the

consequences intended by Congress. The outcome predicted 

 10 
by Appellant is, for better or for worse, exactly the result 

the PLRA intends. 

Recognizing that it could take prisoners a significant 

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

Congress created a limited exception aimed at preventing 

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

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

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

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

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

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

to prevent impending harms, not those har ms that had 

already occurred. The imminent danger exception allows 

the district court to permit an otherwise barr ed prisoner to 

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

serious physical injury and does not then have the r equisite 

filing fee. 

In contrast, under the Gibbs construction, the prisoner 

need only show that he was subject to imminent danger at 

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

threat of serious physical injury always exists in the 

moments before any such injury is inflicted. Thus, under 

the Gibbs approach, any time that an otherwise disqualified 

prisoner alleges that any threat of physical injury occurred 

at any time, that prisoner automatically qualifies for the 

imminent danger exception. The Gibbs interpr etation of the 

imminent danger exception thereby swallows the rule. Like 

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

we refuse to conclude that with one hand Congr ess 

intended to enact a statutory rule that would r educe the 

huge volume of prisoner litigation, but, with the other 

hand, it engrafted an open-ended exception that would 

eviscerate the rule.1 

_________________________________________________________________ 

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

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

of 

the imminent danger exception because the Complaint, under the 

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

physical 

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

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

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

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

or judicially-created legal precept that would permit any 

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

Such a notion is entirely compatible with the precept that 

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

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

Congress has deliberately decided to legislate on this 

subject by proclaiming, as public policy, a determination to 

reduce prisoner litigation in the federal courts. As citizens, 

we may disagree with the congressional wisdom, but as 

judges, knowing the clearly stated legislative purpose, we 

may not disembowel the legislative act. Federal courts, 

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

unlimited power and authority. We are limited to that which 

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

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

constitutional right. Congress granted the right to proceed 

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

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

_________________________________________________________________ 

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

parties to argue that our construction of the imminent danger exception 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8, 

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

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

physical injury that are ongoing. 

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

how meritorious his or her subsequent claims may be, 

unless the prisoner "is under imminent danger of serious 

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

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

judges we must play it. 

VI. 

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

interpret it, would offend the equal pr otection guarantee 

implied in the Fifth Amendment by improperly burdening a 

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

_________________________________________________________________ 

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

interpretation of the statute runs counter to the protections assured by 

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

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

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

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

a 

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

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

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

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

of 

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

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

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

Kozakiewicz, 

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

fails 

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

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

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

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

because an assessment of the importance of a claimed constitutional 

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

inquiry 

determining the level of scrutiny that will apply to a challenged 

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

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

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

a fundamental interest for Boddie purposes. Furthermore, the dissent 

also points to several other underlying rights, including the First 

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

the 

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

fundamental interests under Boddie. What the dissent fails to recognize, 
 13 
Moreover, he argues that we must apply strict scrutiny in 

considering this contention and that, alternatively, even 

under rational basis scrutiny, the statute, as we interpret 

it, does not pass constitutional muster because it is not 

rationally related to a legitimate gover nmental interest. 

A. 

Although the Fifth Amendment contains no Equal 

Protection Clause, "the Fifth Amendment's Due Process 

Clause prohibits the Federal Government from engaging in 

discrimination that is `so unjustifiable as to be violative of 

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

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

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

Amendment to contain an equal protection guarantee. See, 

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

(1991). Fifth Amendment equal protection claims are

examined under the same principles that apply to such 

claims under the Fourteenth Amendment. Adarand 

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

(citations omitted). Statutes that substantially bur den a 

fundamental right or target a suspect class must be

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

must be narrowly tailored to serve a compelling 

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

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

fundamental right nor targets a suspect class, it does not 

violate the Fourteenth Amendment's Equal Protection

Clause, as incorporated through the Fifth Amendment's 

Due Process Clause, so long as it bears a rational 

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

U.S. 620, 631 (1996). 

_________________________________________________________________ 

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

immaterial to the question whether that right is a fundamental interest 

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

constitutional entitlement rises to the level of a Boddie fundamental 

interest only when the government blocks the sole legal means for 

safeguarding that entitlement, and not simply because the interest itself 

is a weighty one. 

 14 
This requires us first to determine whether Appellant is 

a member of a suspect class or whether a fundamental 

right is implicated. Neither prisoners nor indigents are 

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

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

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

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

Appellant argued before us that indigent prisoners,

specifically, frequent filer indigent prisoners, are a suspect 

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

construction infringes upon one of Appellant's fundamental 

rights. 

B. 

Appellant contends that the "time of filing" interpretation 

adopted by our sister courts of appeals and adopted by us 

today unconstitutionally burdens his fundamental right of 

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

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

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

this issue have consistently held that merely r equiring a 

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

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

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

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

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

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

she is simply unable to enjoy the benefits of pr oceeding 

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

under the installment plan. And, given the right of

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

said that limiting the temporal aspect of the exception to 

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

access to the courts. 

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

cases in which the State must provide access to its judicial 

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

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

unconditional right of access exists for civil cases only 

when denial of a judicial forum would implicate a 

fundamental human interest -- such as the ter mination of 

 15 
parental rights or the ability to obtain a divorce. Id. at 116- 

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

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

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

and welfare benefit determinations, Ortwein v. Schwab, 410 

U.S. 656, 659 (1973). 

In the seminal case of Boddie, the Court emphasized that 

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

refusal to admit these appellants to its courts, the sole 

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

must be regarded as the equivalent of denying them an 

opportunity to be heard upon their claimed right to a 

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

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

not precluded from filing his S 1983 Complaint in another 

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

State courts have concurrent jurisdiction overS 1983 cases. 

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

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

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

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

adequate forum for the vindication of civil rights claims. 

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

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

presumptively competent, to adjudicate claims arising 

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

Delaware substantive law nor Delaware court rules 

prevented him, as an indigent prison litigant, from

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

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

rational basis review as have our sister courts of appeals. 

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

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

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

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

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

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

C. 

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

passes the rational basis test. Appellant focuses on the 

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

purpose and effect is to prevent him and other frequent filer 

prisoner indigents from filing civil lawsuits. In addressing 

this contention, we must first examine the legislative 

purpose. 

As discussed above, the legislation was aimed at the 

skyrocketing numbers of claims filed by prisoners -- many 

of which are emotionally driven but legally deficient -- and 

the corresponding burden those filings have placed on the 

federal courts. Congress sought to put in place economic 

incentives that would prompt prisoners to "stop and think" 

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

serves as a rational deterrent mechanism, for cing potential 

prisoner litigants to examine whether their filings have any 

merit before they are filed, and disqualifying frequent filers 

who have failed in the past to carefully evaluate their 

claims prior to filing. 

_________________________________________________________________ 

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

captured in the statements of Senator Jon Kyl: 

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

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

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

 provision will deter frivolous inmate lawsuits. The modest 

monetary 

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

just 

 file reflexively. Prisoners will have to make the same decision 

that 

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

 Criminals should not be given a special privilege that other 

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

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

 overburdened by increases in nonprisoner litigation. Yet prisoners 

 have very little incentive not to file nonmeritorious lawsuits. 

Unlike 

 other prospective litigants who seek poor person status, prisoners 

 have all the necessities of life supplied, including the materials 

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

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

therefore, 

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

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

with 

 a meritorious claim, yet large enough to deter frivolous claims 

and 

 multiple filings. 

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

 17 
Deterring frivolous prisoner filings in the federal courts 

falls within the realm of Congress' legitimate interests, and 

the interpretation we adopt today is rationally related to the 

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

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

Congress' Article III power to set limits on federal 

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

power to do so, Congress did not repeal any particular 

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

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

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

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

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

at 821. Preventing frequent filers fr om obtaining fee waivers 

is rationally related to the legitimate gover nment interest of 

deterring frivolous lawsuits because "Congr ess is no more 

compelled to guarantee free access to federal courts than it 

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

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

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

is insufficiently targeted to arrest frivolous filings, we have 

always recognized that constitutional constraints "require[ ] 

neither a perfect nor even best availablefit" between a 

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

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

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

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

for those cases in which it appears that judicial action is 

needed as soon as possible to prevent serious physical 

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

rationally balances the economic deterrence rationale 

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

prisoners who remain in danger of futur e grievous harm to 

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

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

concepts embodied in the Fifth Amendment. 

* * * * * 

We have considered all contentions pr esented by the 

parties and conclude that no further discussion is 

necessary. 

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

_________________________________________________________________ 

4. The court acknowledges with appreciation the able pro bono 

representation of Appellant by the lawfirm of Jenner & Block. 

 19 
MANSMANN, Circuit Judge, dissenting, with whom Judges 

Sloviter, Nygaard and McKee join. 

I. 

Today the majority interprets and applies the "three 

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

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

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

indigent prisoners who have resorted unsuccessfully to civil 

litigation -- even with respect to meritorious litigation that 

may be their sole means of vindicating a fundamental right. 

Because I believe that this case falls within a statutory 

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

statute, as interpreted and applied by the majority, 

substantially burdens fundamental rights without narrowly 

serving a compelling governmental inter est, I respectfully 

dissent. 

In 1990 we struck down a District Court injunction 

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

Appellant before us today as violative of the constitutional 

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

of an injunction that would permit such suits subject to 

certification and review calculated to test for frivolity. See 

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

not expressly repudiating our holding in Watson, the 

majority nonetheless essentially holds that what the 

District Court was then precluded from doing by the

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

holding therefore places us at odds with a well-established 

line of cases exemplified by Watson.2 

_________________________________________________________________ 

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

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

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

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

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

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

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

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

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

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

 20 
This case unfortunately illustrates the maxim that bad 

cases may sometimes make bad law. This Appellant has 

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

without merit. The three strikes rule as interpreted by the 

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

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

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

potentially meritorious litigation at the filing stage, with no 

opportunity for substantive review or appeal. 

II. 

The principal holding announced by the majority is not 

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

case to the effect that imminent danger is to be determined 

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

our sister courts of appeals that have held that danger 

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

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

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

alleged two prior attacks by inmates and death thr eats, 

each related to his identification as a gover nment

_________________________________________________________________ 

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

(providing extensive citations to circuit court cases requiring that 

injunctions be narrowly tailored to pr eserve access for legitimate 

claims). 

The sole difference between the pr eclusive effect of injunctions held 

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

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

interpreted by the majority) which is patently insufficient to safeguard 

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

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

abusive prisoner litigant to "claims alleging actual or threatened 

physical 

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

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

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

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

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

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

repeated characterization of the statutory bar as applying only to 

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

therefore somewhat misleading. 

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

danger", provided sufficient allegations of "imminent 

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

principal holding was that "a complaint alleging imminent 

danger . . . must be credited as having satisfied the 

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

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

examining an inmate's complaint filed pursuant to 

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

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

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

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

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

imminent danger"), because the same subsection elsewhere 

employs the present tense in refer ence to what are

expressly recognized as past events ("if the prisoner has 

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

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

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

the statutory provision ambiguous, and I believe that such 

ambiguity must be resolved in favor of pr eserving the right 

of access to the courts for prisoners threatened with bodily 

injury. 

As the majority has acknowledged, the purpose of the 

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

purpose is best served by a liberal interpretation of the 

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

the deterrent effect of the subsequent damages remedy 

available under section 1983. See City of Riverside v. 

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

"the damages a plaintiff recovers contribute significantly to 

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

Gibbs (rejecting argument that "suit for damages rather 

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

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

assertion, the exception as interpreted by Gibbs does not 

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

plead imminent danger of serious physical injury (rather 

than a deprivation of procedural, associational, religious or 

other rights), and the court must determine that such 

danger is or was in fact present if such allegation is 

 22 
controverted. Moreover, as discussed below, section

1915(g)'s potential encroachment into important 

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

interpretation of the exception. Finally, the importance of 

presenting an appropriately lenient interpretation in this en 

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

decisions on hundreds, if not thousands, of prisoner filings 

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

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

dismissal of prisoner litigation made pursuant ther eto will 

be effectively unreviewable, as a truly indigent plaintiff will 

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

appeal of that dismissal than for the underlying action. 

III. 

While I disagree with the majority's rejection of the 

standard enunciated in Gibbs for one which determines the 

existence of imminent danger at the time the Complaint or 

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

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

Gibbs, that I find considerably more tr oubling. 

The majority appears simply to assume that its holding 

that imminent danger must be assessed at the time offiling 

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

such danger. In so assuming, the majority seriously

undermines protection of physically endangered prisoners 

by paying too little heed to ongoing threats. 

The majority's lengthy explication of statutory tense 

notwithstanding, an equally crucial question of 

interpretation under section 1915(g) concer ns the meaning 

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

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

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

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

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

ongoing threat of danger looms over a prisoner for an 

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

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

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

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

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

definition accorded the same phrase in other contexts. For 

example, under the Eighth Amendment prison authorities 

must protect prisoners not only from curr ent threats, but 

also from "sufficiently imminent dangers"; the courts have 

defined that phrase as encompassing those dangers"likely 

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

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

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

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

this approach includes review of the actions taken to 

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

preliminary injunction context, we have held that standard 

met where the potential harm was not"uncertain or 

speculative", but might be expected to occur before the 

threat could otherwise be averted.5 In determining

standing, the courts have framed their inquiry into the 

"immediate threat" as one encompassing consideration of 

the likelihood of an ongoing danger, as evidenced by past 

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

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

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

Indeed, this conception of imminent danger as 

encompassing an ongoing threat has been explicitly 

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

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

_________________________________________________________________ 

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

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

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

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

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

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

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

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

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

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

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

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

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

Supp. III). 

 24 
held that a prisoner placed in continuing pr oximity to 

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

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

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

F.3d at 717.6 

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

Complaint with a certain degree of skepticism. Nonetheless, 

our precedents require us to construe pleadings, and 

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

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

allegations should be construed "in favor of the 

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

the light most favorable to Appellant, I find his claimed 

predicament alarming. 

Appellant, a black inmate, brought this action seeking, 

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

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

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

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

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

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

are engaged in a conspiracy to retaliate against Appellant 

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

Guards have made a practice of using pepper gas 

routinely to punish inmates for failing to obey orders or for 

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

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

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

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

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

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

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

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

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

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

_________________________________________________________________ 

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

(remanding for reconsideration of imminent danger determination where 

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

ongoing pattern of threats and violence" in retaliation for prior 

litigation). 

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

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

pepper gas directed at other inmates and was taken to the 

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

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

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

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

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

this incident, his request for protective custody was not 

honored. App. 12. 

On January 8, 1998 Appellant was transferred to a cell 

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

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

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

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

inmates, accused Appellant of informing, and proceeded to 

spray him with an entire can of pepper gas, whereupon 

Appellant collapsed with an asthma attack, "fighting for 

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

die." 

As far as the record reflects, none of the foregoing 

conditions had been corrected at the time Appellant filed 

his Complaint.7 

In sum, Appellant alleges that at the time of the 

Complaint (i) Appellant remained confined in an institution 

controlled by guards who believed he did not have any 

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

made a practice of spraying inmates with pepper gas (to 

which Appellant was acutely vulnerable) on slight 

provocation, and prison officials placed no r estraint on that 

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

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

_________________________________________________________________ 

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

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

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

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

the Complaint in determining imminent danger for IFP purposes, 

pending the appearance of a defendant who may contr overt the 

allegations). 

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

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

 26 
guards had incited hostility toward Appellant on the part of 

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

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

attacks by guards and inmates. These unabated conditions 

clearly give rise to an ongoing imminent danger . 

Hence, I believe the facts alleged in this case place 

Appellant squarely within a proper interpr etation of the 

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

and Choyce, there were similarly sufficient averments of 

ongoing danger that remained "imminent" at the time of 

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

Gibbs, and effectively disagrees with Ashley and Choyce, 

without carefully analyzing the sufficiency of the allegations 

of ongoing danger.11 

_________________________________________________________________ 

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

reconsideration in light of erroneous view that 17 months had passed 

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

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

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

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

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

between inmates who are being disciplined and those who would charge 

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

theoretical possibility . . . ."). 

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

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

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

unaddressed until litigation filed; prisoner was transferred during 

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

(discussing Ashley and Choyce). 

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

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

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

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

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

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

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

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

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

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

 27 
The result is that, henceforth in this Cir cuit, prisoners 

with three strikes seeking IFP status will be faced with an 

insurmountable obstacle: they must show that a serious 

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

and apparently they may not predicate their showing on an 

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

suffice? Must a prisoner be running from his attackers as 

he files? By limiting the imminent danger exception to the 

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

the exception out of the statute. Certainly, the drastically 

impoverished version of the exception allowed by the 

majority cannot well fulfill its putative office as "a safety 

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

_________________________________________________________________ 

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

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

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

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

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

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

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

deemed sufficient if it provides reasonable notice of the theories 

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

pleading review is especially important as applied to an indigent, 

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

circumscribed. 

The majority concludes that Appellant's allegations fall short because 

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

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

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

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

against 

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

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

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

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

continuing, unremedied nature of the factors that allegedly caused the 

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

time period supports rather than under mines the conclusion that 

Appellant's danger was ongoing. 

12. Cf. O'Shea, supra. 

13. The majority's narrow reading of the exception will have a farreaching effect, as persistent, ongoing imminent danger is a condition all 

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

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

contact. Tension between them is unremitting. Frustration, resentment 

and despair are commonplace."). 

 28 
A prisoner's resort to the courts may be expected to avert 

impending danger not only by correcting unlawful 

conditions,14 but by deterring prison officials from unlawful 

conduct. Under the majority's interpretation, the potential 

deterrence of civil rights damages would be lost with 

respect to indigent prisoners with a history of prior failed 

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

against such prisoners without fear of civil liability, so long 

as their conduct was not so perpetual as to trigger the 

majority's test for imminent danger. 

The majority's undermining of the protections afforded 

civil rights under section 1983 is exacerbated by other 

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

likelihood that past abuses will effectively be immunized 

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

of filing.15 

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

narrow definition of imminent danger at the time of filing, 

a prisoner is effectively denied protection against trial error. 

Under the majority's interpretation, a prisoner who has 

secured a final judgment in the District Court finds himself 

in a peculiar position: he must once again meet the

"imminent danger" requirement at that moment in time in 

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

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

appeal, following entry of judgment. 

Although the majority opinion purports to cr eate 

unanimity among the courts of appeals, it does not and 

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

_________________________________________________________________ 

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

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

the 

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

(prisoner subject to physical assaults transferr ed shortly after 

complaint 

was filed). 

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

often subject to administrative solitary confinement or hospitalization, 

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

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

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

prerequisite for filing an action underS 1983 or Bivens. 

 29 
holding cannot be reconciled with either the Eighth

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

Choyce. Those cases evaluated the danger as of the filing 

date, but both recognized that the imminent danger 

requirement may be satisfied by an ongoing threat 

evidenced by past injuries attributable to uncorr ected 

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

cannot avoid a conflict by reciting similar standards, while 

reaching inconsistent results. 

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

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

day determination of the constitutional validity of section 

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

exception.17 However, since the majority has interpreted the 

exception narrowly and has found this case within the rule 

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

constitutionality. 

IV. 

As the majority acknowledges, "[s]tatutes that 

substantially burden a fundamental right . . . must be 

narrowly tailored to serve a compelling governmental 

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

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

_________________________________________________________________ 

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

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

Circuit case relied upon by the majority. 

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

adjudication 

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

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

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

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

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

(additional citations omitted). 

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

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

prisoners nor indigents are suspect classes. It does not necessarily 

follow 

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

-- 

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

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

 30 
deemed fundamental. As long ago as 1215, this right was 

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

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

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

essence of civil liberty certainly consists in the right of 

every individual to claim the protection of the laws, 

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

has repeatedly recognized the fundamental importance of 

the right of access to courts.20 

_________________________________________________________________ 

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

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

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

prejudice against discrete and insular minorities may be a special 

condition, which tends seriously to curtail the operation of those 

political 

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

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

(citations 

omitted). 

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

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

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

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

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

follows: 

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

subject, 

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

other 

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

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

without 

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

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

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

(1967). 

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

state 

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

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

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

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

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

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

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

86 (1969), (striking down ban on prisoners assisting other inmates with 
habeas corpus petitions, explaining that "it is fundamental that access of 

 31 
In Wolff, supra, the Supreme Court held that prisoners 

have a constitutional right to bring civil rights actions 

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

founded in the Due Process Clause and assur es that no 

person will be denied the opportunity to present to the 

judiciary allegations concerning violations of fundamental 

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

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

doubt that prisoners have a constitutional right of access to 

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

The Court in Bounds described this right of access as 

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

receive "a reasonably adequate opportunity to present 

claimed violations of fundamental constitutional rights to 

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

Lewis, the Court indicated that inmates' right of court 

access recognized in Bounds applies to actions "to challenge 

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

355. 

As we have previously held, this right of court access 

applies even to litigious prisoners such as Appellant. See In 

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

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

fundamental tenet to our judicial system; legitimate claims 

should receive a full and fair hearing no matter how 

litigious the plaintiff may be."). 

In view of this long and virtually unbroken array of 

_________________________________________________________________ 

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

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

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

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

civil 

rights actions). 

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

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

- 

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

rights.' "). 

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

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

 32 
authority,23 it can scarcely be disputed that prisoners' right 

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

is doubtless correct in pointing out that the right of access 

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

protection purposes is that the right of access is 

fundamental, at least when underlying fundamental rights 

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

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

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

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

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

courts were not itself a fundamental right, denial of access 

should still be subject to strict scrutiny to the extent that 

it may impermissibly burden underlying fundamental rights 

at stake.25 

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

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

denial of a judicial forum would implicate a fundamental 

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

address whether Appellant's claims involve fundamental 

rights.26 

_________________________________________________________________ 

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

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

court. Both cases involved gratuitous government benefits, rather than 

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

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

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

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

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

it."); 

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

to access the courts and draw their attention to constitutionally 

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

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

violations."). 

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

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

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

("When 

an indigent prisoner with three strikes seeks to litigate a matter 

affecting 

a fundamental interest, any legislation that substantially burdens the 

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

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

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

right to be free from serious physical injury is as fundamental as the 
 33 
Notwithstanding the majority's avoidance of the issue, it 

is manifest that the rights underlying Appellant's suit are 

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

rights to be free from arbitrary infliction of serious physical 

injury,27 and from racially discriminatory assault.28 That 

these rights are fundamental to our constitutional system 

cannot be gainsaid.29 

_________________________________________________________________ 

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

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

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

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

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

is burdened. 

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

largely immaterial to the question whether that right is a fundamental 

interest for Boddie purposes", because "an underlying constitutional 

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

the government blocks the sole legal means for safeguarding that 

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

the 

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

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

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

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

on whether the burdened right is fundamental. 

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

cruel and unusual punishments. 

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

Protection Clause of the Fourteenth Amendment from invidious 

discrimination based on race."). 

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

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

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

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

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

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

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

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

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

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

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

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

suits seeking to vindicate basic constitutional rights, but concluding 

that 

 34 
Moreover, other fundamental rights ar e sure to be 

implicated in cases barred by the three strikes rule. For 

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

freedom in violation of the First Amendment is not likely to 

involve an element of imminent danger, and so will fall 

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

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

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

prisoner's free exercise of religion claim pursuant to three 

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

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

exercise of religion).30 

It seems clear that section 1915(g) substantially burdens 

affected prisoners' access to the courts and thereby 

burdens their enjoyment of whatever underlying rights they 

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

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

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

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

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

long, justice will be denied to them.32 

_________________________________________________________________ 

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

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

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

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

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

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

(citations omitted). 

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

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

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

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

right 

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

Eighth Amendment as among those left unprotected as to prisoners 

barred from litigation by section 1915(g)). 

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

delay or denial of justice). 

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

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

cases". Supra at 11. 

 35 
In response to the apparent burden on fundamental 

rights, the majority makes two arguments: First, the 

majority argues that section 1915(g) does not prevent 

affected prisoners from filing their actions, but only from 

enjoying IFP status. The same argument was pr eviously 

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

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

surprising disregard for the practicalfinancial constraints 

faced by indigent prisoners, and appears to ignor e the 

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

prepayment obligation can pose an insur mountable hurdle. 

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

valid fee may "offend due process because it operates to 

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

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

requirement as a "potentially pr ohibitive financial barrier" 

to court access on the part of the affected indigent 

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

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

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

it concludes that precluding suit in federal court as a 

practical matter is precisely what Congr ess intended. See 

supra at 10-11.33 

Because it ultimately recognizes the practical reality that 

access to the federal courts will be delayed or denied for 

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

foreclosing the federal forum imposes no r eal burden, as 

prisoners may bring the same civil rights claims in state 

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

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

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

expressly predicated on the presumed availability of a state 

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

substantive law nor Delaware court rules pr evented

_________________________________________________________________ 

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

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

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

in 

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

thereby be precluded from litigating or appealing his case on the 

merits."). 

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

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

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

Boddie, 

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

proposition that availability of a state forum justifies selective denial 

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

claims. 

 36 
[Appellant] . . . from pursuing his claims, we do not agree 

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

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

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

access to the courts was not infringed upon because he 

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

constitutional causes of action in forma pauperis in state 

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

place reliance on availability of state forum). 

Even assuming that a state forum is available, however, 

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

not in itself impose a substantial burden on the right of 

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

inmates can also bring S 1983 claims in state court, 

plaintiffs have an important interest in access to federal 

courts for vindication of their federal constitutional 

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

bar against a prisoner filing any suit in federal court would 

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

(concluding that "constitutional right of access to the 

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

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

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

prohibiting subsequent filings in federal court could "not be 

allowed to stand").36 

_________________________________________________________________ 

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

applied 

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

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

guide the District Courts. 

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

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

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

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

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

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

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

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

of prison inmates") (citations omitted). 

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

the converse argument that the availability of a federal remedy justified 

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

See 

 37 
Although the alternative forum argument may have 

superficial appeal, I do not believe it can withstand 

searching examination. In the first place, the argument 

neglects to consider foreclosure of the courts to the "threestrikes" prisoner in states which have adopted parallel 

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

Commonwealth of Pennsylvania appeared as an amicus 

curiae in this case and explained that the "many thousands 

of prisoners" housed in Pennsylvania's thirty-nine 

correctional facilities "annually file hundreds of federal civil 

actions directed against state officials and employees", and 

implied that a substantial number of those actions would 

be affected by the decision announced her ein. Because 

Pennsylvania has adopted a three strikes limitation of IFP 

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

forum available to indigent Pennsylvania prisoners with 

three strikes unless they can satisfy the majority's virtually 

preclusive test for imminent danger, no matter how 

meritorious their claims and no matter how fundamental 

the rights at stake.38 

In the second place, the alternative forum ar gument also 

neglects the potential implications of removal to federal 

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

generally may be removed by the defendants, with the likely 

_________________________________________________________________ 

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

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

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

its 

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

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

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

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

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

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

71 

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

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

otherwise precluded from bringing suit in forma pauperis"). 

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

available, but inexplicably neglects to notify us that the purported 

alternative is generally unavailable to Pennsylvania prisoners with claims 

concerning prison conditions. 

 38 
effect that an indigent plaintiff subject to the three strikes 

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

of such an important procedural safeguar d is a very 

substantial burden on affected litigants. 40 

Because section 1915(g) does impose a substantial 

burden on the fundamental rights of many if not all

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

step is to examine whether it is narrowly tailored to serve 

a compelling governmental interest. 

As identified by the majority, the congressional purpose 

behind section 1915(g) was to deter frivolous lawsuits 

through "economic incentives that would pr ompt prisoners 

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

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

a powerful economic incentive not to file frivolous lawsuits 

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

frequent filers who have failed in the past to carefully 

_________________________________________________________________ 

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

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

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

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

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

pendent state claims over which the district court exercised 

jurisdiction). 

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

by 

the Federal Constitution to provide appellate courts or a right to 

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

grant 

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

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

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

an appeal is not constitutionally guaranteed, equal protection concerns 

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

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

(1963)). 

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

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

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

vary 

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

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

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

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

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

demanding one's rights." Id. 
 39 
evaluate their claims" can serve as a "deterr ent 

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

long a disqualified prisoner such as Appellant stops, no 

matter how carefully he thinks, and no matter how 

meritorious his claims, he will remain disqualified. It is 

simply not possible to deter frivolous filings that have 

already occurred. At a minimum, ther efore, the 

retrospective application of the thr ee strikes rule to past 

filings cannot further the statute's asserted deterrent 

purpose.42 

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

three strikes rule functions solely as an economic deterrent. 

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

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

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

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

the perceived problem of inmates filing suits with no 

financial consequences, while at the same time ensuring 

that the truly indigent prisoner will not be denied access to 

the courts solely because he lacks the requisite funds.43 

The disincentive supplied by the three strikes rule, on the 

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

the rule threatens a loss of the fundamental right of access 

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

economic deterrent.44 

_________________________________________________________________ 

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

Appellant's disqualifying dismissals occurred after the effective date of 

the PLRA. App. 20. 

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

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

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

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

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

section 

1915(g). 

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

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

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

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

obtaining fee waivers is rationally related to the legitimate government 

interest of deterring frivolous lawsuits because `Congress is no more 

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

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

 40 
In any event, even assuming that the goal of deterring 

frivolous suits is a compelling governmental interest, and 

that the three strikes rule somehow furthers that goal, the 

statute nevertheless cannot withstand strict scrutiny 

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

and means. As a mechanism for deterring frivolous claims, 

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

one hand, it leaves unchecked the flow of frivolous lawsuits 

filed by indigent non-prisoners and by prisoners and nonprisoners with sufficient funds.45 On the other hand, it cuts 

off non-frivolous claims filed by indigent prisoners within 

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

privilege will not be available . . . no matter how

meritorious subsequent claims may be.").46 These 

shortcomings precisely echo those of the pr epayment 

requirements disapproved in Green and its progeny.47 Cf. 

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

requiring reimbursement of cost of criminal appeal 

transcript only as to prisoners held unconstitutional: 

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

otherwise valid, the present statutory classification is no 

less vulnerable under the Equal Protection Clause when 

_________________________________________________________________ 

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

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

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

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

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

she wants."). 

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

right where blanket bar to IFP filings failed to "consider[ ] the effects 

on 

a legitimate claim"). 

47. Illustrating the "general inappropriateness of withdrawing the in 

forma pauperis privilege as a means to curtail. . . abuse", the Green 

court observed: 

 On the one hand, Green is totally free toflood the courts with 

paper 

 provided that he pays the going rate: or ders erecting financial 

 barriers are only as effective as the litigant is truly 

impoverished. On 

 the other hand, these restrictions are clumsily overinclusive: if 

 Green does not have the money to file a frivolous claim, he also 

does 

 not have the money to file a legitimate one. 

669 F.2d 779. 
 41 
viewed in relation to that function. By imposing a financial 

obligation only upon inmates of institutions, the statute 

inevitably burdens many whose appeals, though 

unsuccessful, were not frivolous, and leaves untouched 

many whose appeals may have been frivolous indeed.") 

Moreover, much better targeted means are available to 

arrest chronic frivolous filings.48 

It is therefore not surprising that courts which have 

applied strict scrutiny have found section 1915(g) wanting. 

See Lyon, 940 F. Supp. 1433 (S 1983 action alleging denial 

of participation in Jewish services and other r eligious 

practices);49 Ayers v. Norris , 43 F.Supp.2d 1039 (E.D. Ark. 

1999). See also Wilson, 148 F.3d at 604 (upholding section 

1915(g) under a rational basis test, but noting the court 

"might not believe [S 1915(g)] to be . . . even a prudent[ ] 

response to the problem presented").50 

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48. The injunction that apparently r emains in effect against Appellant, 

setting special filing preconditions in r esponse to his history of abuse, 

is 

but one example. See supra at 4. Another example is the PLRA's own 

provision for judicial screening. Under section 1915A, a court may review 

and assess the merit of a prisoner's claims befor e docketing. See 28 

U.S.C. S 1915A(a)-(b) (Supp. III 1997). These measures, directed at 

particular abusers and particular frivolous claims, are clearly more 

narrowly tailored to serve their pr oper end than the three strikes 

classification, which lumps good faith err or with abuse and stifles 

meritorious claims along with frivolous ones. See Lukens, The Prisoner 

Litigation Reform Act, 70 Temp. L. Rev. at 505-06 (observing that 

"Section 1915(g) . . . treats the prisoner who has filed otherwise 

meritorious claims, but failed to name the pr oper party, . . . in the 

same 

manner as the litigant who sued the President .. . for stealing the 

multiplication tables from him.") 

49. The District Court in Lyon noted that, unlike the traditional 

discretionary power of the courts to limit abusive litigation by an 

individual prisoner based on his particular cir cumstances, the "three 

dismissal rule" gave no consideration to, e.g., length of incarceration, 

number of meritorious actions, or "other pertinent information that 

might guide a federal court in properly limiting abuse . . . ." Lyon, 940 

F. Supp. at 1438. Applying a strict scrutiny review, the District Court 

held section 1915(g) violative of equal pr otection. The Eighth Circuit 

undertook no constitutional review, finding instead that the plaintiff 

lacked standing because he had sufficient funds. 

50. The majority's response that constitutional constraints require 

"neither a perfect nor even best availablefit" between statutory ends and 

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

a compelling governmental purpose, its substantial 

infringement of indigent prisoners' fundamental right of 

access to the courts, and of the constitutional rights at 

stake in the potential litigation thwarted ther eby, amounts 

to an unconstitutional deprivation of the equal pr otection of 

the laws and of the due process of law guaranteed by the 

Fifth Amendment.51 Cf. Romer v. Evans, 517 U.S. 633

(1996) ("A law declaring that in general it shall be more 

difficult for one group of citizens than for all others to seek 

aid from the government is itself a denial of equal

protection of the laws in the most literal sense.").52 

_________________________________________________________________ 

means, supra at 18, quoting United States v. Mariani, 212 F.3d 761, 774 

(3d Cir. 2000) (en banc), is not entir ely apt. Section 1915(g) is not 

constitutionally deficient because it is mer ely imperfect or sub-optimal; 

rather, its very high degree of both under- and over-inclusiveness 

renders it an extremely poor fit. Cases such as Mariani, which permit a 

certain degree of under-inclusiveness in statutes that burden First 

Amendment rights, therefore do not advance the inquiry. In the context 

of an equal protection challenge to a bur den on access to the courts, the 

Supreme Court has found the same type of under - and overinclusiveness at issue here to be constitutionally impermissible. See 

Rinaldi, supra at 41-42. 

51. This conclusion is in accord with an apparent consensus among 

commentators who have addressed the constitutionality of the PLRA's 

three strikes provision. See, e.g., Lukens, The Prison Litigation Reform 

Act, supra n. 36; Franklin, Three Strikes, supra n. 25; David C.Leven, 

Justice for the Forgotten and Despised, 16 Touro L. Rev. 1, 15 (Fall 

1999); Mary Tushnet and Larry Yackle, Symbolic Statutes and Real Laws: 

The Pathologies of the Antiterrorism and Ef fective Death Penalty Act and 

the Prison Litigation Reform Act, 47 Duke L. J. 1, 70 (Oct. 1997); Simone 

Schonenberger, Access Denied: The Prison Litigation Reform Act, 86 Ky. 

L. J. 457 (1997-1998); Catherine G. Patsos, The Constitutionality and 

Implications of the Prison Litigation Reform Act, 42 N.Y.L. Sch. L. Rev. 

205 (1998). 

52. In addition to its infirmity on equal protection grounds, section 

1915(g) raises troubling questions concer ning the constitutional 

prohibition against bills of attainder and ex post facto laws, in that it 

operates as an extra-judicial punishment against an identified group 

based on their past conduct. As noted by the majority, the three strikes 

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A True Copy: 

Teste: 

Clerk of the United States Court of Appeals 

for the Third Circuit 

_________________________________________________________________ 

rule seeks to deter prisoner litigation by "disqualifying frequent filers 

who have failed in the past to carefully evaluate their claims prior to 

filing." Supra at 17. Cf. Hughes Aircraft Co. v. United States, 520 U.S. 

939, 947 (1997) (stating that a statute which "attaches a new disability, 

in respect to transactions . . . already past, must be deemed 

retrospective") (quoting Soc. for Propagation of the Gospel v. Wheeler, 22 

F. Cas. 756, 767 (No. 13,156) (C.C.N.H. 1814) (Story, J.)). 

The Supreme Court has identified three r equirements for finding that 

a challenged statute is a bill of attainder: "specification of the 

affected 

persons, punishment, and lack of a judicial trial." Selective Service 

System v. Minnesota Public Interest Resear ch Group, 468 U.S. 841, 847 

(1984). As to the first element, section 1915(g) plainly is directed 

toward 

"specifically designated persons or groups". Id., quoting United States v. 

Brown, 381 U.S. 437, 447 (1965). The af fected prisoners are identified by 

an objectively ascertainable, immutable characteristic -- three or more 

prior "strikes" -- and are commonly r eferred to in cases and 

congressional debate by a common pejorative title ("frequent filers"). As 

to the second element, the majority appears to acknowledge a punitive 

purpose and effect: "Potentially negative consequences in federal courts 

. . . are precisely the consequences intended by Congress. The outcome 

predicted by Appellant [i.e., that a prisoner "could forever lose his 

ability 

to bring his suit as a practical matter"] is . .. exactly what Congress 

intended." Supra at 10-11. Cf. Green, 669 F.2d at 786 (characterizing as 

"simply punitive" a prepayment requirement which "is not geared to 

discerning whether each claim presents a new nonfrivolous issue" and 

whichs seeks to "deter" by "assum[ing]" that the affected prisoner "will 

not be able to meet the required filing fee"). Finally, as to the third 

element, section 1915(g) imposes its deprivation without any judicial 

trial. Cf. Lyon, 940 F. Supp. at 1438 (contrasting blanket bar of section 

1915(g) with particularized discretion attendant on judicial proceeding to 

limit abusive litigation). 

 44