United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-4082

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Ricky Ashley, *

 *

Appellant, *

 *

v. * Appeal from the United States

 * District Court for the

E. Dilworth, CO-1, Maximum Security * Eastern District of Arkansas.

Unit, Arkansas Department of *

Correction, * [PUBLISHED]

 *

Appellee. *

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 Submitted: April 16, 1998

 Filed: June 19, 1998

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Before FAGG, BEAM, and HANSEN, Circuit Judges.

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PER CURIAM.

Ricky Ashley brought a 42 U.S.C. § 1983 action in July 1997, claiming that

defendant prison officials caused him to suffer injury when they repeatedly placed him

in proximity to inmates on his enemy alert list. The district court denied him in forma

pauperis (IFP) status under the “three strikes” provision of the Prison Litigation

Reform Act, 28 U.S.C. § 1915(g), and dismissed his complaint without prejudice, and

Ashley appeals. We reverse and remand for further proceedings.
Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996) (codified at 28 U.S.C. 1

§ 1915 (West Supp. 1997)).

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In denying leave to proceed IFP, the district court found that Ashley had made

the requisite poverty showing under 28 U.S.C. § 1915(a), but that he had had at least

three prior complaints dismissed as frivolous, had not alleged any facts to indicate he

was under imminent danger of serious physical injury, and was thus ineligible for IFP

status under section 1915(g) (prisoner may not bring civil action or appeal if prisoner

has had three prior actions or appeals dismissed for frivolousness, maliciousness, or

failure to state a claim, “unless the prisoner is under imminent danger of serious

physical injury”). While denying Ashley leave to file his complaint IFP, the district

court did grant him leave to proceed IFP on appeal. Ashley continues to argue that he

is in imminent danger of physical injury by defendants' repeated placement of him

around his enemies.

The in forma pauperis statute, 28 U.S.C. § 1915, was substantially amended by

the Prison Litigation Reform Act of 1995. The purpose of the Act was to require all 1

prisoner-litigants to pay filing fees in full, with the only issue being whether the inmate

pays the entire filing fee at the initiation of the proceeding or in installments over a

period of time. See Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (citing

McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). Section 1915(g) denies

the installment payment method to those prisoners who have had three previous cases

or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which

relief can be granted ("three strikes"). We stress that the Act does not close the

courthouse doors to prisoners who frequently file frivolous lawsuits; rather, it merely

makes them pay the full ordinary filing fees sooner rather than later.

There is one exception to the "three strikes" rule: Section 1915(g) further

provides that, even if a prisoner has exhausted his three strikes, he will be permitted to

proceed IFP (i.e., pay the filing fee in installments rather than up front) if he is under
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imminent danger of serious physical injury. 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 are insufficient to trigger this exception

to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan.

Contra Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997) (proper focus must be the

imminent danger faced by the inmate at the time of the alleged incident and not at the

time the complaint is filed).

After a careful review of the pleadings, we agree with Ashley that he sufficiently

alleged imminent danger of serious physical injury to meet the exception to the "three

strikes" rule of section 1915(g). According to the sworn allegations of his amended

complaint, Ashley first notified defendants in September 1993 that he was being placed

near inmates on his enemy list. In June 1996, defendants threatened to transfer him so

as to place him near an enemy, intending that he be harmed, and in July 1996, he

actually was placed near his enemy and was attacked with a sharpened, nine-inch

screwdriver. Ashley again notified defendants in May 1997 of his placement near

listed enemies, and on June 28, 1997, he was again attacked by the same enemy who

was then armed with a butcher knife, as a result of defendants' actions. Ashley

supported the allegations of his complaint with documentary evidence, including

corroborative prison disciplinary reports. In short, because Ashley has properly alleged

an ongoing danger, and because his complaint was filed very shortly after the last

attack, we conclude that Ashley meets the imminent danger exception in § 1915(g).

Accordingly, we reverse the judgment of the district court and remand the case

for further proceedings with directions that Ashley be permitted to file his complaint

pursuant to § 1915 without the full payment of the filing fee up front.

BEAM, Circuit Judge, dissenting.
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I respectfully dissent from that portion of the court's opinion that will allow a

prisoner to utilize section 1915(g) to assert a claim for past damages. In my view, the

court today creates "a loophole Congress surely did not intend in its stated goal of

discouraging frivolous and abusive prison lawsuits." In re Tyler, 110 F.3d 528, 529 (8th

Cir. 1997) (quotations omitted). Here, Ashley seeks compensatory and punitive

damages for alleged events that are months--if not years--old, as well as declaratory

and injunctive relief of a more immediate nature. Under the statute, I believe we are

limited by the "three strikes" provision to the remedy of prospective relief only.

Congress enacted the Prison Litigation Reform Act with the principal purpose

of deterring frivolous prisoner litigation by instituting economic costs for prisoners

wishing to file civil claims. Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997). To that

end, it created a system of "monetary and procedural disincentives to the filing of

meritless cases." Christiansen v. Clarke, 1998 WL 271536, *2 (8th Cir. May 29,

1998). That system withstands Constitutional scrutiny. Id. at *3. 

The "three strikes" provision directs that prisoners who have had three previous

civil suits or appeals dismissed as malicious, frivolous, or for failure to state a claim

must prepay the entire filing fee. 28 U.S.C. § 1915(g). In passing the "three strikes"

provision, members of Congress stated that the purpose of the provision is to require

prisoners to pay for filing a lawsuit in the same way as nonprisoners. See Lyon, 127

F.3d at 767 (Heaney, J., dissenting). The requirement of up-front payment for repeat

frivolous filers has one narrow and important exception: a prisoner who "is under

imminent danger of serious physical injury" will be permitted to file in forma pauperis

(IFP) and to make installment payments. 28 U.S.C. § 1915(g).

By requiring that the prisoner "is," in imminent danger of being physically

harmed, the statute implies that his or her remedy is protection from such harm. In

other words, by its plain language, the statute limits the relief we can offer such a

prisoner to prospective relief for the actions that have caused the immediate risk of
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harm. There is no authority for a wholesale consideration of issues unrelated to the

threat of imminent danger. But see Gibbs v. Roman, 116 F.3d 83, 87 n.7 (3d Cir.

1997). I find no authority under this statutory exception to file a lawsuit on the

installment plan seeking an award of damages for alleged actions that have happened

in the past. Relevant as such actions may be as evidence of a risk of present danger,

they cannot form the basis of a claim for which a prisoner can obtain IFP status under

this narrow exception. Such a prisoner is, of course, free to pursue such a claim and

pay for it. We are concerned here with the narrow circumstance in which a court can

and should allow a prisoner who is in immediate danger of harm to proceed IFP.

Accordingly, to the extent that today's decision will allow Ashley to seek damages for

alleged events dating back to 1993, I respectfully dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.