United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 15, 2020 Decided July 7, 2020

No. 18-5331

JEREMY PINSON,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-00486)

Anthony F. Shelley, appointed by the court, argued the 

cause as amicus curiae in support of appellant. With him on the 

briefs was Dawn E. Murphy-Johnson, appointed by the court.

Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the 

cause for appellees. With him on the brief was R. Craig 

Lawrence, Assistant U.S. Attorney.
2

_____

No. 18-5375

MICHAEL S. GORBEY,

APPELLANT

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-02672)

Anthony F. Shelley, appointed by the court, argued the 

cause as amicus curiae in support of appellant. With him on the 

briefs was Dawn E. Murphy-Johnson, appointed by the court.

Michael S. Gorbey, pro se, filed the briefs for appellant.

Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the 

cause for appellees. With him on the brief was R. Craig 

Lawrence, Assistant U.S. Attorney.

Before: TATEL and RAO, Circuit Judges, and SENTELLE, 

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Under the Prison Litigation Reform 

Act’s (PLRA) three-strikes rule, indigent prisoners who have
3

had three or more actions dismissed as “frivolous, malicious, 

or [for] fail[ure] to state a claim” may not “bring a civil action 

or appeal a judgment” in forma pauperis (IFP). 28 U.S.C. 

§ 1915(g). This rule, however, has an important exception: 

three-strike prisoners may proceed IFP if they are “under 

imminent danger of serious physical injury.” Id. In these two 

related cases, Michael Gorbey and Jeremy Pinson, both

incarcerated three-strikers, seek to bring their appeals IFP on 

the ground that they face imminent danger. In the alternative, 

Pinson contends that she should be permitted to proceed IFP

because, as applied to her appeal, the three-strikes rule is 

unconstitutional. The government opposes the prisoners’ 

requests, arguing that neither Gorbey nor Pinson faced

imminent danger at the relevant time and that, even if they did, 

their underlying claims are unrelated to the dangers they 

purportedly faced. The government also insists that the threestrikes rule poses no constitutional difficulties. 

We reject the prisoners’ requests. As explained below, to

proceed under the exception, three-strike prisoners must show

an imminent danger at the time of their appeal and a nexus 

between that danger and their underlying claims. Gorbey has 

failed to demonstrate a nexus between the danger he faced and 

the claims he brought, and Pinson has failed to show that she 

faced imminent danger at the time she noticed her appeal. As 

for Pinson’s alternative argument, even assuming that some 

prisoners can make out viable as-applied constitutional

challenges to the three-strikes rule, Pinson has failed to do so.

I.

Generally, all litigants, including incarcerated litigants, 

must pay prescribed filing fees to pursue civil actions in federal 

courts. Id. § 1914(a). Courts, however, have broad authority to
4

waive such fees for indigent litigants who qualify to proceed 

IFP. Id. § 1915(a). 

In the 1990s, “Congress . . . concluded that prisoner 

litigants were abusing the [federal IFP] statute by flooding the 

courts with meritless claims.” Chandler v. District of Columbia

Department of Corrections, 145 F.3d 1355, 1356 (D.C. Cir. 

1998). It responded by passing the PLRA, which “enacted a 

variety of reforms designed to filter out the bad [prisoner]

claims and facilitate consideration of the good.” Jones v. Bock, 

549 U.S. 199, 204 (2007). 

To that end, the PLRA “established new standards for the 

grant of IFP status to prisoners.” Chandler, 145 F.3d at 1356. 

The statute requires incarcerated litigants, including indigent 

ones, “to pay the full amount of [the] filing fees.” 28 U.S.C. 

§ 1915(b)(1). Those who qualify for IFP status may pay such

fees in installments over time. Id. § 1915(b)(2). But under the 

so-called three-strikes rule, certain repeat prisoner-litigants are 

precluded from proceeding IFP at all: 

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 more prior occasions, while 

incarcerated or detained in any facility, brought 

an action or appeal in a court of the United 

States that was dismissed on the grounds that it 

is frivolous, malicious, or fails to state a claim 

upon which relief may be granted, unless the 

prisoner is under imminent danger of serious 

physical injury.

Id. § 1915(g). To pursue federal actions, then, three-strike 

prisoners must pay filing fees up front and in full, rather than 

in installments over time. Central to this case, however, the 
5

final clause of section 1915(g) creates a limited exception to 

this rule: even three-strike prisoners may proceed IFP—i.e., 

they may pay filing fees in installments—if they are “under 

imminent danger of serious physical injury.” Id. 

Here, both Gorbey and Pinson are three-strikers—that is, 

both have had three or more actions dismissed as “frivolous, 

malicious, or [for] fail[ure] to state a claim” and, consequently, 

are barred from proceeding IFP “unless [they are] under 

imminent danger of serious physical injury.” Id. Each now 

seeks leave to proceed IFP on the ground that he (Gorbey) or 

she (Pinson) falls within the imminent-danger exception. Their 

requests raise similar legal issues regarding the exception’s 

scope—whether to qualify under the exception on appeal

prisoners must (1) show that they faced imminent danger at the 

time of filing their appeals, and (2) demonstrate a nexus 

between the harms they allege and the claims they bring. We

appointed Anthony F. Shelley as amicus to present legal 

arguments on behalf of the prisoners—a role he has fulfilled 

admirably—and now resolve both cases together. We address 

the statute’s general requirements before turning to the 

specifics of each prisoner’s request.

II.

On the first question, amicus and the government agree 

that prisoner-litigants must show that they faced imminent 

danger when they noticed their appeals. We too agree.

In Asemani v. United States Citizenship & Immigration 

Services, 797 F.3d 1069 (D.C. Cir. 2015), we explained that the 

“PLRA’s three-strikes rule applies with equal force to ‘a 

prisoner bring[ing] a[n] . . . appeal,’” meaning prisonerlitigants “cannot proceed IFP unless [they] demonstrate[] that 

[they are] ‘under imminent danger of serious physical injury.’” 

Id. at 1073 (first two alterations in original) (quoting 28 U.S.C. 
6

§ 1915(g)). There, we had no need to decide whether, in 

“determin[ing] the applicability of the imminent danger 

exception on appeal, . . . the relevant conditions are those at the 

time of bringing the action in district court or instead those at 

the time of bringing the appeal,” given that the prisoner-litigant 

in that case had failed to make the requisite showing at either 

stage. Id. at 1075. We now resolve that question and conclude 

that the conditions prisoners faced at the time of noticing their 

appeals determine their eligibility to proceed under the 

exception.

Congress made this clear by including two temporal 

reference points in the statute—the act of “bring[ing] a civil 

action” and the act of “appeal[ing] a judgment”—and by 

separating those reference points with the word “or.” 28 U.S.C. 

§ 1915(g). That word’s “ordinary use is almost always 

disjunctive, that is, the [phrases] it connects are to ‘be given 

separate meanings.’” United States v. Woods, 571 U.S. 31, 45

(2013) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 

(1979)). In section 1915(g), use of the disjunctive indicates that 

prisoner-litigants must make the imminent-danger showing at 

two separate points in the litigation, upon “bring[ing] a civil 

action” and upon “appeal[ing] a judgment,” 28 U.S.C. 

§ 1915(g). As the Ninth Circuit observed in Williams v.

Paramo, 775 F.3d 1182 (9th Cir. 2015), “[h]ad the statute 

stated, ‘In no event shall a prisoner bring a civil action and

appeal a judgment in a civil action . . .’ we might conclude that 

a single determination at the time the complaint was filed is 

sufficient because the conjunctive ‘and’ would require [courts] 

to treat both the bringing of the action and the appeal as part of 

a single, conjunctive whole.” Id. at 1188. But that is not the 

statute Congress enacted; rather, section 1915(g)’s disjunctive 

construction requires prisoner-litigants proceeding under the 

exception to demonstrate that they faced imminent danger both
7

at the time they file their lawsuit and at the time they notice 

their appeal. See id. at 1189 (concluding the same).

To be sure, stray language in our prior decisions suggests 

that the only relevant conditions are those prisonersfaced when

bringing actions in district court. Most notably, in another case 

brought by Pinson, Pinson v. Samuels, 761 F.3d 1 (D.C. Cir. 

2014), we rejected the parties’ calls to consider “postcomplaint developments when assessing the applicability of 

the imminent danger exception,” explaining that section 

1915(g) “directs attention to whether the prisoner ‘is under 

imminent danger of serious physical injury’ when he ‘bring[s]’ 

his action, not to whether he later in fact suffers (or does not 

suffer) a serious physical injury.” Id. at 5 (quoting 28 U.S.C. 

§ 1915(g)). But in Asemani, decided the following year, we

clarified that the question of “[w]hether the relevant conditions 

are those at the time of bringing the action in district court or 

instead those at the time of bringing the appeal” remained open,

while acknowledging that our “prior decisions” had focused on 

“the conditions faced by a prisoner when initially filing suit in 

the district court.” 797 F.3d at 1075 (citing Pinson, 761 F.3d at 

4–5). In any event, Pinson’s holding fully squares with the 

interpretation of section 1915(g) we adopt today because the 

“developments” that we refused to consider in that case 

occurred not only “post-complaint” but also post-appeal: the 

prisoner appealed in March 2010 and, in assessing the 

imminent-danger showing, we refused to consider incidents 

that occurred in August 2010 and January 2011. Pinson, 761 

F.3d at 3–4. 

Having established when prisoner-litigants must make the 

imminent-danger showing, we confront two additional 

questions: (1) whether we may consider imminent-danger

allegations made for the first time on appeal; and (2) whether 
8

we may venture beyond the prisoners’ allegations in evaluating 

that showing.

Aligning again, amicus and the government agree that we

may consider imminent-danger allegations newly offered on 

appeal. Once more, we concur, as it would make little sense for 

the PLRA to demand prisoners show they faced imminent 

danger at the time of their appeals only then to prohibit them 

from introducing allegations to support that showing. To be 

sure, having appellate courts parse such allegations “deviates 

from the typical approach of having a district court take a first 

look at a factual matter,” Gorbey Appellee’s Br. 23, but 

Congress can, and in the PLRA did, assign atypical roles to 

courts in particular circumstances, see, e.g., 28 U.S.C. § 1253 

(providing for direct Supreme Court review of an injunction 

issued by a district court of three judges). 

On the second question—how to evaluate prisoners’

allegations—our caselaw makes clear that we generally look to 

prisoners’ “timely filing[s]” and “accept [those] factual 

allegations as true.” Asemani, 797 F.3d at 1075. This comports 

with section 1915(g)’s “limited office” as a “mere screening 

device.” Pinson, 761 F.3d at 5 (internal quotation marks 

omitted). A contrary approach would “spawn[] additional 

litigation and creat[e] mini-trials over whether a prisoner has 

shown an imminent danger,” adding to, rather than reducing, 

“the flood of litigation brought by prisoners.” Williams, 775 

F.3d at 1190.

The government recognizes as much. See Gorbey

Appellee’s Br. 44 (“[I]mminent danger allegations generally 

are construed liberally and accepted as true.”). It nevertheless 

insists that in these cases we should “scrutinize [the prisoners’] 

IFP allegations and . . . solicit additional information about 

[those] allegations” because other federal courts have rejected 
9

similar requests by Gorbey and Pinson to proceed under the 

imminent-danger exception. Id. at 47; see also id. at 24 

(“[O]ther courts, including the Fourth Circuit, already have

concluded [that] the imminent danger allegations offered here 

by Gorbey do not suffice for the [exception]”); Pinson

Appellees’ Br. 43 (citing a decision from the Northern District 

of California rejecting Pinson’s request to proceed IFP based 

on similar allegations). We have no need to decide, however,

whether and under what circumstances section 1915(g)’s 

“limited office,” Pinson, 761 F.3d at 5 (internal quotation 

marks omitted), permits courts to venture beyond prisoners’ 

allegations in making the imminent-danger determination, cf. 

Shepehrd v. Annucci, 921 F.3d 89, 94 (2d Cir. 2019) 

(“[D]istrict courts—upon challenge by a defendant—may 

conduct a narrow evidentiary inquiry into the prisonerlitigant’s fear of imminent danger”). As explained below, even 

limiting ourselves to Gorbey’s and Pinson’s “timely filing[s]” 

and “accept[ing] [those] factual allegations as true,” Asemani, 

797 F.3d at 1075, neither qualifies under the exception.

This brings us to the final issue common to both cases—

whether prisoners must demonstrate a nexus between the harms

they allege and the claims they bring. 

Recall that Congress enacted the PLRA “to filter out the 

bad claims and facilitate consideration of the good.” Jones, 549 

U.S. at 204. The three-strikes rule effectuates that goal by 

imposing more onerous burdens on prisoner-litigants that have 

thrice been bounced from court. Within this statutory scheme, 

“the imminent danger exception is designed to provide a safety

valve for the ‘three strikes’ rule[,] . . . permit[ting] an indigent 

three-strikes prisoner to proceed IFP in order to obtain a 

judicial remedy for an imminent danger.” Pettus v.

Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (internal 

quotation marks omitted). Put differently, with the final clause 
10

of section 1915(g), “Congress created a limited exception 

aimed at preventing future harms.” Abdul-Akbar v. McKelvie, 

239 F.3d 307, 315 (3d Cir. 2001) (en banc).

Given that limited purpose, we hold that prisoners must 

demonstrate a nexus between the harms they allege and the 

claims they bring. Cf. King v. Burwell, 135 S. Ct. 2480, 2496 

(2015) (“A fair reading of legislation demands a fair 

understanding of the legislative plan.”). Otherwise, “an 

indigent prisoner with a history of filing frivolous complaints 

could, by merely alleging an imminent danger, file an 

unlimited number of lawsuits, paying no filing fee, for anything 

from breach of a consumer warranty to antitrust conspiracy.” 

Pettus, 554 F.3d at 297. And those claims would need not relate 

to, much less relieve, the alleged harms. Indeed, “a prisoner 

could pass through the safety valve with no intention of asking 

the courts to protect him.” Meyers v. Commissioner of Social

Security Administration, 801 F. App’x 90, 95 (4th Cir. 2020)

(per curiam). It would make little sense to “conclude that with 

one hand Congress intended to enact a statutory rule that would 

reduce the huge volume of prisoner litigation, but, with the 

other hand, it engrafted an open-ended exception that would 

eviscerate the rule.” Abdul-Akbar, 239 F.3d at 315. For that

reason, every court of appeals to have passed on this question

has concluded that section 1915(g) contains a nexus

requirement, albeit largely in unpublished decisions. See

Meyers, 801 F. App’x at 96 (collecting cases).

Amicus argues that the Supreme Court’s decision in 

Coleman v. Tollefson, 135 S. Ct. 1759 (2015), requires the 

PLRA to be read literally and that, because no nexus 

requirement appears on the face of section 1915(g), Coleman

precludes us from reading such a requirement into the statute.

Not quite. In Coleman, the Supreme Court confronted a 

different statutory interpretation question involving the three-
11

strikes rule—whether “a dismissal on a statutorily enumerated 

ground counts as a strike even if the dismissal is the subject of 

an appeal.” 135 S. Ct. at 1763. Given that “the ‘three strikes’ 

provision applies where a prisoner ‘has, on 3 or more prior 

occasions . . . brought an action or appeal . . . that was

dismissed,’” the Court concluded that dismissals subject to 

appeal count as strikes because “[t]hat, after all, is what the 

statute literally says.” Id. (alterations in original) (quoting 28 

U.S.C. § 1915(g)). The Court went on, however, to explain that 

this “literal reading” also comported with the statute’s structure 

and purpose. Id. at 1764. Coleman, then, stands for the 

unremarkable proposition that, as with any question of 

statutory interpretation, we construe section 1915(g) in light of 

the statute’s “text, structure, purpose, and legislative history.”

Pharmaceutical Research & Manufacturers of America v.

Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001). And as 

explained above, those “traditional tools of statutory 

interpretation,” id., establish that section 1915(g) requires a

nexus between the harms prisoners allege and the claims they

bring.

With that established, we turn to Gorbey’s and Pinson’s 

requests to proceed IFP on appeal. We address Gorbey’s 

eligibility to proceed under the imminent-danger exception in 

Part III, Pinson’s eligibility in Part IV, and the as-applied 

challenge in Part V.

III.

Gorbey is serving a twenty-year prison term and, during 

that time, has become a prolific litigator, filing scores of suits 

across the country. In this latest action, Gorbey alleged that 

various federal judges who presided over his previous cases 

and appeals violated the Federal Tort Claims Act, 28 U.S.C. 

§§ 2671 et seq. Specifically, Gorbey claimed that the judges 
12

restricted his access to the courts by reading section 1915(g)’s 

imminent-danger exception too narrowly. According to 

Gorbey, this purported judicial misconduct exacerbated the 

conditions of his confinement and subjected him “to pain, 

serious physical injuries, [and] threat of death.” Gorbey Compl. 

6, Gorbey Appendix (Gorbey App.) 9. He sought $800,000 in 

damages and asked that section 1915(g) “be reformed to 

require immediate inquiries into allegations of imminent 

danger.” Id. at 22, Gorbey App. 25. 

Gorbey also applied to proceed IFP. The district court 

denied the request, finding that “[t]his plaintiff has 

accumulated at least three strikes” and “does not qualify under 

the imminent danger exception.” Order, Gorbey App. 3. 

Gorbey appealed and the clerk of this court ordered him to 

show cause “why he should not be required to pay the full 

appellate filing fee before the court will consider this appeal.” 

Order, Gorbey v. United States, No. 18-5375 (D.C. Cir. Dec. 

31, 2018). In response, Gorbey claimed that he “[wa]s still 

under and suffering” from “conditions which . . . []resulted in[]

serious bodily injuries,” namely that the Bureau of Prisons 

(BOP): (1) assigned him a top bunk without a ladder, despite 

the fact that Gorbey suffered from chronic injuries that made 

climbing to a top bunk difficult and put him at risk of falling; 

(2) cancelled his December 2018 eye-doctor appointment, 

leaving him without medication or treatment for his glaucoma; 

(3) exposed him to “toxic black mold causing a list of 

infections and . . . posing a risk of serious sickness or death”; 

and (4) forced him to wear broken shoes, leading to wet feet 

and “a []threat of[] serious sickness.” Resp. to Order to Show

Cause 4–6, Gorbey App. 50–52. A motions panel discharged 

the show cause order and referred Gorbey’s request to a merits

panel. 
13

The government now arguesthat we should deny Gorbey’s 

application to proceed IFP because his allegations fail to 

establish imminent danger and because those allegations lack 

an adequate nexus to his underlying claims. We concur in the

second point and, accordingly, have no need to address the 

first.

Amicus and the government offer different views as to

what section 1915(g)’s nexus requirement entails. Analogizing 

to standing principles, the government argues that prisoners’ 

claims must be “fairly traceable” to the harms alleged and that 

the relief requested must “redress” those harms. Pinson

Appellees’ Br. 18 (quoting Pettus, 554 F.3d at 297). Amicus, 

by contrast, contends that “if [a nexus requirement] is to be 

engrafted onto the statute,” then we should require only that 

prisoners’ “claims on the merits . . . be related to the 

allegations of imminent harm.” Pinson Amicus Br. 41.

We see no need to articulate a precise test for evaluating 

section 1915(g)’s nexus requirement because, whatever the 

standard, Gorbey’s claims bear no relationship at all to the 

dangers alleged. His claims neither address the conditions of 

his confinement nor “aim[] at preventing [the] future harms” 

he purportedly faced. Abdul-Akbar, 239 F.3d at 315. Were

Gorbey to prevail and obtain all the relief he requested, that

relief would in no way redress the complained-of dangers. The 

BOP could still assign him a top bunk, his glaucoma would 

remain untreated, and so on and so forth. Because Gorbey’s 

claims do not seek “to obtain a judicial remedy for an imminent 

danger,” Pettus, 554 F.3d at 297 (emphasis added), they lack 

even a minimal nexus to the harms alleged and, accordingly, 

cannot support Gorbey’s IFP request. 
14

IV.

Pinson is also serving a twenty-year prison term and, like 

Gorbey, has become a prodigious litigator while incarcerated. 

Initiating this action in December 2016, she sought leave to

proceed IFP under the imminent-danger exception. The district 

court denied the request, and Pinson challenged the denial via 

mandamus. On appeal, the clerk of this court ordered Pinson to

show cause why she “should not be required to pay the full 

appellate filing fees.” Order, Pinson v. Department of Justice, 

No. 18-5331 (D.C. Cir. June 15, 2017). Pinson responded in

July 2017, asserting that she faced imminent danger because 

she “ha[d] previously cooperated with law enforcement and her 

cooperation ha[d] unfortunately become public . . . le[ading] to 

many attempts to kill her.” Resp. to Order to Show Cause 1, 

Pinson Appendix (Pinson App.) 98. In light of those 

allegations, we discharged the show cause order, granted 

mandamus, and directed the district court to allow Pinson to 

proceed IFP.

Back before the district court, Pinson submitted several 

filings relevant to this appeal. She first amended her complaint

to bring claims against the Department of Justice under the

First and Eighth Amendments. In particular, Pinson alleged 

that in retaliation for her frequent lawsuits, BOP officials, inter 

alia, transferred her to a “remarkably harsher and more 

dangerous” facility in Tucson and leaked a rape complaint 

Pinson filed to other inmates. Am. Compl. 2–3, Pinson App.

120–21. Pinson also filed three preliminary injunction motions

seeking emergency relief on the grounds that BOP officials

hindered her access to the courts by, among other things, 

blocking the email address she used to communicate with her 

lawyer and excluding her from the prison’s law library. The 

district court denied all three motions, finding that Pinson faced 

no irreparable harm and was unlikely to succeed on the merits. 
15

Instead of proceeding with her amended complaint, on 

which the district court has taken no action, Pinson filed this

interlocutory appeal on November 9, 2018. Although the

district court permitted Pinson to file the appeal IFP, the clerk

of this court again issued Pinson an order to show cause why 

she should not be required to pay the full appellate filing fees. 

In response, Pinson asserted that “in light of the” district 

court’s order, this court’s “order to show cause [wa]s moot.” 

Appellant’s Resp. to Show Cause Order 1, Pinson App. 186. A

motions panel discharged the order and referred Pinson’s 

request to a merits panel. Since the referral, Pinson has 

submitted several letter motions seeking to supplement the 

record with documentation of assaults she allegedly suffered at 

the hands of fellow inmates, all of which purportedly occurred 

after June 2019.

Out of that procedural tangle, we are left with the question 

of whether Pinson may bring her interlocutory appeal under the 

imminent-danger exception. The government argues that the 

“facts proffered by Pinson do not establish a danger of 

imminent serious physical injury in November 2018”—when 

she lodged her notice of appeal—and that her request to 

proceed under the exception should therefore be denied. Pinson

Appellees’ Br. 40. Once more, we agree.

As explained above, to bring this appeal under the 

exception, Pinson must show that she faced imminent danger 

at the time of noticing her appeal. She has failed to do so, as all 

of her allegations concern incidents that occurred several 

months before or several months after she took her appeal. The 

allegations in Pinson’s mandamus petition and amended 

complaint predate her notice of appeal by sixteen and eight 

months, respectively. See Resp. to Order to Show Cause 1, 

Pinson App. 98 (complaining of harm she faced no later than

June 2017); Am. Compl. 1–2, Pinson App. 119–20 (raising 
16

vague allegations that she faced threats in February 2018). As

for the allegations in Pinson’s letter motions, they all concern 

incidents that occurred post-June 2019, more than six months 

after Pinson noticed her appeal. Mot. for Order to Suppl. R. 1, 

Pinson App. 191. None of those allegations can support 

Pinson’s request to proceed under the imminent-danger 

exception because “the availability of the . . . exception turns 

on ‘whether the prisoner is under imminent danger of serious 

physical injury when’” she brings an appeal, “not ‘whether 

[s]he later in fact suffers’ (or earlier suffered) such a threat.” 

Asemani, 797 F.3d at 1074 (quoting Pinson, 761 F.3d at 5). 

Relying on Williams, amicus contends that “there should

be a presumption in favor of the prisoner that imminent-danger 

conditions found at the district court stage continue at the time 

of the filing of a related appeal” and that “[t]he presumption 

applies fully in Pinson’s case.” Pinson Amicus Br. 17. True, in 

Williams, the Ninth Circuit “conclude[d] that a prisoner who 

was found by the district court to sufficiently allege an 

imminent danger is entitled to a presumption that the danger 

continues at the time of the filing of the notice of appeal.” 775 

F.3d at 1190. But the court also cautioned that for a prisonerlitigant to avail herself of the presumption, she must submit

something, like “[a]n affidavit or declaration[,] that alleges an 

ongoing danger at the time of the filing of the notice of appeal.” 

Id. Pinson proffered no such filing: nowhere in her various 

submissions to this court and the district court does she identify 

any harm, continuing or otherwise, that she faced at the time of 

her appeal. Thus, even were we to adopt the Ninth Circuit’s 

presumption, Pinson would not qualify for it. 
17

V.

Because the three-strikes rule precludes Pinson from 

proceeding IFP on appeal, we must address the contention that 

the rule is unconstitutional as applied to her. 

Amicus likens this case to In re Green, 669 F.2d 779 (D.C. 

Cir. 1981) (per curiam), in which we vacated a district-court 

order that prospectively denied IFP status in all future cases to 

a particularly prolific prison-litigant. Id. at 786. The order, we 

explained, “erect[ed] a potentially prohibitive financial barrier” 

that “effectively denie[d] [the prisoner] any and all access to 

the district court.” Id. Because “[e]ven a new, nonfrivolous

claim submitted in good faith,” including one “involving a 

fundamental constitutional right,” “would not be heard if [the 

prisoner] could not meet the filing fee,” we found the order “so 

burdensome as to deny the litigant meaningful access to the 

courts.” Id.

According to amicus, applying the three-strikes rule to this

appeal would be equally unconstitutional because it

“categorically . . . denie[s] [Pinson] access to the courts . . . in 

a case in which she [too] seeks to vindicate fundamental 

rights.” Pinson Amicus Br. 48. But even assuming that the rule 

might raise constitutional concerns when it “total[ly] bar[s]” 

prisoner-litigants from accessing the courts, Green, 669 F.2d at 

785, Pinson’s as-applied challenge fails because she has yet to 

encounter such a barrier, see Asemani, 797 F.3d at 1077 

(assuming that the rule “might raise constitutional concerns 

when a prisoner seeks access to the courts to vindicate certain 

fundamental rights” but concluding that the prisoner-litigant in 

that case failed to raise such claims (citing Thomas v. Holder, 

750 F.3d 899, 909 (D.C. Cir. 2014) (Tatel, J., concurring)).

Where, as here, “‘the essence’” of a prisoner-litigant’s 

denial-of-access claim “‘is that official action’”—e.g., the 
18

imposition of filing fees—“‘is presently denying an 

opportunity to litigate,’” “[t]he Supreme Court’s 

jurisprudence . . . reveals at least two necessary elements: an 

arguable underlying claim and present foreclosure of a 

meaningful opportunity to pursue that claim.” Broudy v.

Mather, 460 F.3d 106, 117, 120–21 (D.C. Cir. 2006) (quoting 

Christopher v. Harbury, 536 U.S. 403, 413 (2002)). The first 

element requires a nonfrivolous underlying claim “attack[ing] 

[the prisoner’s] sentence[]” or “conditions 

of . . . confinement.” Lewis v. Casey, 518 U.S. 343, 355 (1996).

The second requires the prisoner to “show that a meaningful 

opportunity to pursue the[] underlying claim[] was completely 

foreclosed.” Broudy, 560 F.3d at 121 (internal quotation marks 

omitted).

Pinson falters on the second element. Her request to 

proceed IFP pertains only to her interlocutory appeal 

challenging the district court’s denial of her preliminaryinjunction motions. Critically, her amended complaint and the 

constitutional claims contained therein remain pending before 

the district court. Thus, Pinson can “still meaningfully press 

h[er] underlying [constitutional] claims.” Broudy, 560 F.3d at 

121. Although the three-strikes rule limits Pinson’s ability to 

obtain the extraordinary remedy of a preliminary injunction, 

that limitation does not “total[ly] bar[]” Pinson from bringing 

her claims. Green, 669 F.2d at 785; cf. In re Sindram, 498 U.S.

177, 180 (1991) (per curiam) (ordering the clerk to deny a

prisoner-litigant IFP status in “all future petitions for 

extraordinary relief”). Unlike the prisoner-litigant in Green,

then, Pinson has not yet been “den[ied] . . . any and all access” 

to the courts. 669 F.2d at 786. 

To be clear, we take no position on whether the outcome 

would be different were the three-strikes rule to prevent Pinson 

from pursuing her constitutional claims on direct appeal. 
19

Because we confront only Pinson’s interlocutory appeal, our 

holding is similarly limited.

VI.

For the reasons set forth above, we deny Gorbey’s and 

Pinson’s requests to proceed IFP on appeal. If the prisoners 

wish to proceed with their appeals, they have thirty days from 

the date of this opinion to pay the full filing fees. Asemani, 797 

F.3d at 1078. But they may also elect not to proceed with their 

appeals, in which case the appeals will be dismissed and no fees 

will be collected. See id. 

So ordered.