### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 08/23/99 THOMAS K. KAHN CLERK

* Honorable Richard Mills, Senior U. S. District Judge for the Central District of Illinois, sitting by designation. PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

-------------- No. 97-4516

-------------- D. C. Docket No. 97-319-CV-UUB DANIEL C. MEDBERRY, Plaintiff-Appellant,

versus
JOE BUTLER, in his official and individual capacity, J. JOHNSON, in his official and individual capacity, et al., Defendants-Appellees.

---------------------------------------------- Appeal from the United States District Court for the Southern District of Florida

---------------------------------------------- (August 23, 1999)
Before ANDERSON, Chief Judge, MARCU S, Circuit Judge, and MILLS * , Senior District Judge. RICHARD MILLS, Senior District Judge:2 This appeal raises two issues, one of wh ich is an issue of first impression in this Circuit. The first issue raised is whether the “three strikes” in forma pauperis provision of 28 U.S.C. § 1915(g) violates the Unite d States Constitution’s guarantee against ex post facto laws. The second issue raised--the one which is of first impression--is what showing must a prisoner with three strikes against hi m make in order to be allowed to proceed
in forma pauperis because he is in imminent danger of serious physical injury. We affirm. I. BACKGROUND Daniel C. Medberry is an inmate in th e Florida Department of Corrections who is serving a 27 year prison sentence for sexual battery. Upon arriving at the Everglades Correctional Institute on Augus t 22, 1996, Medberry informed the prison officials of his concern of being placed in the prison’s general population. Specifically, Medberry advised the prison officials that because his offense of conviction was considered to be “repugnant” by the other inmates, he feared for his physical safety if he were to be placed in the prison’s general population. Nevertheless, the prison officials pl aced Medberry in the prison’s general population, and as predicted by Medberry, he was verbally abused and harassed by the3 other inmates. The inmate’s verbal assaults against Medberry, however, became physical on December 6, 1996, when members of the “Latin Kings” gang physically assaulted him and when the gang’s leader threatened him with a “blade.” Medberry reported the incident to the prison officials, and that same day, the prison officials placed him in administrative confinement. After exhausting all of his administ rative remedies, Medberry filed suit on February 6, 1997, in the United States Dist rict Court for the Southern District of Florida pursuant to 42 U.S.C. § 1983 against four prison officials, Joe Butler, J. Johnson, R. Ashley, and Carl Berry, in their individual and official capacities, alleging that these four individuals act ed with deliberate indifference for his safety in violation of the Eighth Amendment by placing him in the prison’s general population. Medberry also alleged that he had been in administrative confin ement since December 6, 1996. Along with his Complaint, Medberry filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. On February 10, 1997, United States Ma gistrate Judge Charlene H. Sorrentino entered a report and recommendation reco mmending that Medberry’s Complaint be dismissed pursuant to 28 U.S.C. § 1915(g) because he had filed three or more suits which had been dismissed as frivolous, malici ous, or failed to state a cause of action upon which relief may be granted and because he had failed to allege that he was4 under imminent danger of serious physical injury. Medberry filed objections to Magistrate Judge Sorrentino’s report and recommendation, and on March 11, 1997, United States District Judge Ursula U ngaro-Benages denied his objections and adopted the report and recommendation. On March 25, 1998, Medberry filed a timely notice of appeal and a motion to proceed in forma pauperis on appeal. On April 22, 1998, the district court allowed Medberry’s motion to proceed in forma pauperis on appeal. See Choyce v. Dominguez , 160 F.3d 1068, 1071 (5th Cir. 1998)(noting the seeming incongruity in the district cour t’s denying a prisoner’s motion to proceed in forma pauperis with the district court because he was not in imminent danger of serious physical injury but allowing him to proceed in forma pauperis on appeal). II. ANALYSIS Title 28 U.S.C. § 1915(g) provides: 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 incarcerat ed or detained in any facility, brought an action or appeal in a co urt 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 gran ted, unless the prisoner is under imminent danger of serious physical injury. Id . Thus, if a prisoner has had three or mo re cases dismissed for one of these three reasons, a court must dismiss the prisoner’s case. Medberry does not deny that he has had three or more law suits dismissed as1 The Prison Litigation Reform Act became effective on April 26, 1996. 5 being frivolous, malicious, or for failing to state a cause of action upon which relief may be granted. Rather, Me dberry argues that the cases which were dismissed should not be considered in determ ining whether he may proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) because all of those pr evious suits were dismissed prior to the effective date 1 of the Prison Litigation Reform Act (“PLRA”) which imposed the three strikes rule. As such, Medberry asserts that considering those cases would violate the United States Constitution’s guarantee against ex post facto laws. However, this Court has recently held that the three strikes in forma pauperis provision of 28 U.S.C. § 1915(g) passes c onstitutional muster. Rivera v. Allin , 144 F.3d 719, 721 (11th Cir. 1998). Specifically , this Court has held that § 1915(g)’s language makes it clear that the three strikes rule applies to claims dismissed prior to the effective date of the PLRA. Id . at 728-30 (citing cases). Accordingly, Medberry’s

ex post facto argument is without merit. See also Wilson v. Yaklich , 148 F.3d 596, 606 (6th Cir. 1998)(holding that § 1915(g) does not violate the Constitution’s Ex Post Facto Clause). Alternatively, Medberry argues that he falls within § 1915(g)’s exception to the three strikes rule because he is under i mminent danger of serious physical injury. Medberry asserts that in his Co mplaint, he alleged that he feared for his life if he were6 forced to go onto the compound at the Everglad es Correctional Institution. Therefore, Medberry claims that he has properly a lleged an ongoing danger which satisfies § 1915(g)’s exception to the three strikes rule. Exactly what a prisoner with three strike s must show in orde r to be allowed to proceed in forma pauperis because he is in imminent danger of serious physical injury is an issue of first impression in this Ci rcuit. The three circuit courts which have addressed this issue have reached three di fferent conclusions. In Gibbs v. Roman , 116 F.3d 83 (3rd Cir. 1997), the Third Circuit he ld “that the proper focus when examining an inmate’s complaint filed pursuant to § 1915(g) must be the imminent danger faced by the inmate at the time of the alleged inci dent, and not at the time the complaint was filed.” Id . at 86. On the other hand, the Eighth Circ uit held in Ashley v. Dilworth , 147 F.3d 715 (8th Cir. 1998), that “an otherwise ineligib le 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 in sufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay th e filing fee on the installment plan.” Id

. at 717 (emphasis in original). Finally, the Fifth Circuit has held that [t]he plain language of the statute l eads us to conclude that a prisoner with three strikes is entitled to pro ceed with his action or appeal only if he is in imminent danger at the tim e that he seeks to file his suit in district court or seeks to proceed with his appeal or files a motion to7 proceed IFP. Baños v. O’Guin , 144 F.3d 883, 884 (5th Cir. 1998). We agree with both the Fifth and the Ei ghth Circuits that the clear language of § 1915(g) establishes that the Third Circuit’ s approach is incorrect. Congress’ use of the present tense in § 1915(g) confirms th at 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 pursuant to the imminent dange r exception to the statute. See Ashley , 147 F.3d at 717 (holding that “the stat ute’s use of the present tense verbs `bring’ and `is’ demonstrates, an otherwis e 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 da nger in the past are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pa y the filing fee on the installment plan.”);

see also Baños , 144 F.3d at 885 (holding that “the language of § 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.”). However, we need not decide whether the Fifth or the Eighth Circuit approach is the proper standard to adopt because, in the instant case, Medberry has failed to meet either standard. Th e only allegations which Medbe rry makes in his Complaint that he was in imminent da nger of serious physical injury were the alleged events2 We note that 28 U.S.C. § 1915(g) does not deny prisoners the right of access to the courts; it merely requires them to pay the filing fee immediately and in full rather that on an installment plan. Rivera , 144 F.3d at 723-24; Ashley , 147 F.3d at 717; Baños , 144 F.3d at 885 n. 1. 8 which formed the basis for his Complaint. This threat, however, had ceased prior to the filing of his Complaint, and nothing therein may properly be construed as constituting an allegation that he was in imminent danger of serious physical injury at the time he filed his Complaint or th at he was in jeopar dy of any ongoing danger. As such, Medberry may not proceed in forma pauperis because he has “three strikes” against him under § 1915(g) and because he has failed to qualify under the statute’s imminent danger exception. 2 Finally, contrary to Medberry’s argumen t, the district court did not err by failing to give him the opportunity to ame nd his Complaint prior to dismissing it with prejudice. Shortly after his Complain t was filed the Florida Department of Corrections transferred him to another facility. Therefore, allowing Medberry to amend his Complaint would have been futile because he could not have alleged that he was in imminent danger of serious physical injury by being placed in the general population at the Everglades Correctional Institute. Burger King Corp. v. C. R. Weaver , 169 F.3d 1310, 1319 (11th Cir. 1999)(noting that futility is an adequate basis for denying leave to amend). III. CONCLUSION9 Therefore, the district court’s decision to deny Medberry in forma pauperis status pursuant to 28 U.S.C. § 1915(g) is AFFIRMED.