## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 9 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD C. WHITE, Plaintiff-Appellant, HANS G. PRESSEL; JOSE CRESPIN; KEVIN GETCHELL; RICHARD SMITH; JAMES D. PETERS; and DONALD WOLF, Plaintiffs,

v. STATE OF COLORADO; ARISTEDES ZAVARAS; S. SMITH; M. McKENNA; DR. O. NEUFELD; DR. W.O. AUTERY, JR.; CANTWELL; DR. J. McGARRY; SANDRA CALDWELL; LISA CLANCY; WELLINGTON WEBB; MR. SIMMIONET; F. OLIVA; NANCY RICE; DIANA HICKMAN; P. SULLIVAN; SEYMORE SUNDELL; BOB GALLEGER; OFFICER BRAGG; CITY & COUNTY OF DENVER; ARAPAHOE COUNTY; COLORADO DEPARTMENT OF CORRECTIONS; DAVE WARREN, Chairperson, A.C.R.C.; CRISSY CAHILL, Case Manager, A.C.R.C.; D. MORTIN, Case Manager, C.T.C.F.; PAULINE COBBLER, Chief R.N.; and GLORIA MASTERSON, Admin. Head, C.T.C.F., Defendants-Appellees. No. 97-1011

Appeal from the United States District Court

for the District of Colorado (D.C. No. 96-K-1443)-2-

George B. Curtis of Gibson, Dunn & Crutcher, Denver , Colorado, for PlaintiffAppellant. Paul Sanzo (Gale A. Norton, Colorado Attorney Gener al; Daniel E. Muse, City Attorney; Stan M. Sharoff, Assistant City Attorney; Kathryn L. Schroeder, Arapahoe County Attorney; and Ronald A. Carl, Assis tant County Attorney, with him on the briefs), First Assistant Attorney Genera l, Denver, Colorado, for Defendants-Appellees.

Before BRORBY, McKAYand HENRY , Circuit Judges.

BRORBY , Circuit Judge.

Richard C. White, and six of his fellow state inmates, filed a pro se petition for human rights relief in federal district court n aming the State of Colorado, the City and County of Denver, Arapahoe County, and num erous individuals as defendants. After granting a series of motions to dismiss on behalf of most of the defendants, the district court dismissed the case a gainst all remaining defendants for want of jurisdiction. Mr. White filed a pro se notice of appeal, and a motion to proceed on appeal in forma pauperis

. See 28 U.S.C. § 1915; Fed. R. App. P. 24. Having satisfied itself Mr. White was not in i mminent danger of serious physical injury, the district court, in reliance onthe so-called “three strikes” provision of the Prison Litigation Reform Act, deni ed Mr. White’s motion to proceed without paying a filing fee. See 28 U.S.C. § 1915(g). Again acting pro

se , Mr. White appealed the denial of his motion to proceed in forma pauperis ,-3-

alleging he was in imminent danger of serious physi cal injury, and challenging the constitutionality of the Prison Litigation Reform A ct on equal protection grounds. He also appealed the underlying dismissal of his se lf-styled human rights action. We appointed counsel to address the issues Mr. White raised on appeal. See 10th Cir. Rules, Add. II, Plan for Appointment of Counse l in Special Civil Appeals. Counsel was ordered to address specifically the con stitutional implications of the “three strikes” provision of the Prison Litigation Reform Act. We have jurisdiction pursuant to 28 U.S.C. § 1291. We denyMr. White’s motion to proceed in forma pauperis and dismiss his appeal. In so doing, we reject Mr

. White’s challenge to the constitutionality of the “ three strikes” provision of 28 U.S.C. § 1915(g).

Background On June 13, 1996, Mr. White and six other named inm ates of the Colorado Territorial Correctional Facility (collectively, the Petitioners) filed a pro se Petition for Human Rights Relief Under United Natio ns Resolution 1503 (1970) of the United Nations General Assembly, Economic, and Social Counsel [sic], Commission on Human Rights, seeking injunctive and monetary relief from the State of Colorado, the City and County of Denver, Arapahoe County, the Colorado Department of Corrections, eighteen named individuals, and twenty-4-

John and Jane Does.

One of the petitioners, Hans Pressel, also filed a motion to instigate the action in forma pauperis pursuant to 28 U.S.C. § 1915. The district court ordered each of the Petitioners to comply with the filing r equirements of § 1915 if they wished to proceed in forma pauperis

. See 28 U.S.C. § 1915(a) (requiring, inter alia , an affidavit detailing prisoner’s assets and a ce rtified copy of the prisoner’s trust fund account statement). On July 8, 1996, th e Petitioners collectively paid the $120 filing fee.

On July 11, 1996, the Petitioners filed an Amended Petition for Human Rights Relief Under United Nations Resolution 1503. The Petitioners claimed the federal district court had jurisdiction by virtue o f the United States’ status as a signatory to the United Nations International Bill of Rights. The Petitioners collectively alleged it was the policy of the defen dants to: 1). Deliberately withhold life-sustaining medicati ons and medical treatment allowing a disease or illness which otherwise could be contained or cured to develop and spread until the human victim suffers and dies a horrible death. 2). Cram citizens into unsanitary living condition s which foster the spread of painful, deadly diseases; 3). Deliberately house very old and ill individual s on the highest levels of residence buildings causing pain, heart attacks, strokes, and-5-

death. 4). Force seriously diseased persons to work in th e food preparation areas thus fostering the spread of such deadly dise ase to other human beings. 5). Inflict physical and mental forms of torture b y a). Explicit threats of death. b). Veiled threats of death. c). Refusal to address severe illnesses. d). Arbitrary deprivation(s) of human beings freed om absent any showing of due process. e). Any other means at their disposal. (Errors and omissions in original.)

The only allegations specifically referring to Mr. White were denominated as “ ‘Reliable information attesting to gross violations’ of the United Nations ‘International Bill of Rights.’ ” (Emphasis in original.) The Petitioners asserted: Richard C. White, Richard A. Smith, Jose Crespin, D onald Wolf and others have been deprived of life sustaining medication and medical attention/treatment, have been beaten, and/or otherwise tortured and allowed to suffer great pain, so that their health degenerated to a extremely life-threatening degree due to the Respondents deliberate indifference and criminal negligence. Their quality of life, by and through these acts, or omission therefore, has beenreduced to constant pain and suffering. (Errors, omissions, and emphasis in original.)

On August 19, 1996, the Petitioners filed a motion for a preliminary1 Mr. White’s declaration appears to have been inte nded originally to

support the Petitioners’ attempt to win class certi fication.

-6- injunction seeking to enjoin the defendants from improperly withholding medical care, harassing the petitioners through pretextual infractions, and engaging in retaliatory transfers to impede the Petitioners’ ab ility to press their suit. The Petitioners’ brief in support of the motion for a p reliminary injunction included a three-page, handwritten “Declaration” from Mr. White. 1 In his declaration, dated June 2, 1996, Mr. White specifically alleges: I was denied life-sustaining medication, i.e . “nitrostat” for six hours while suffering severe chest/heart pain while ... at Denver County Jail. At 4:30 AM Sunday morning I was beaten by a Denver County Deputy Sheriff’s captain and four of his men.... A fter release I was provided with no medical care. He goes on to allege generally that “[t]he [Colorad o] Department of Corrections has refused to test, or treat me for life-threateni ng, and degenerating medical illness.” He further alleges “[b]oth state and federal courts REFUSE to act on [his habeas corpus] petitions.” (Emphasis in origi nal.)

Over the course of the litigation, the district cou rt granted a series of motions to dismiss. On October 17, 1996, the distr ict court granted the motions to dismiss filed by the State of Colorado on behalf of the State and nine individual defendants associated with state correct ional facilities and programs,2There is some ambiguity in the district court’s o rder of October 17, 1996.

The district court’s order referred to “Defendants’ Motion to Dismiss filed October 10, 1996.” Technically, two motions to dis miss were filed October 10, 1996, Judge Rice’s motion and the motion on behalf of the State of Colorado, et al. We read the district court’s order as granting bo th those motions. The record clearly indicates the Petitioners also interpreted the district court’s order as applying to Judge Rice’s motion. In both their res ponses to the motions to dismiss, the Petitioners name Judge Rice among the other individual defendants, and specifically address the arguments contained inher motion to dismiss.

3 The individually named defendants were WellingtonE. Webb (Mayor, Denver); John Simonet (Undersheriff, Denver); Fred Oliva (Chief Operating Officer, Denver County Jail) and Dr. Seymour Sundel l (Physician, Denver General Hospital’s Inmate Ward).

-7- and by State District Court Judge Nancy Rice. 2On November 5, 1996, the district court granted the motion to dismiss filed by State District Court Judge Deanna Hickman and Sandra Caldwell, a probation officer. In the same order, the district court granted Arapahoe County’s motion to dismiss.

The district court also granted a motion to dismiss filed by defendant City and County of Denver and four individual defendants. 3 In its motion, Denver specifically argued Mr. White’s claim was barred by the doctrine of res judicata

. In support of this argument, Denver appended a magi strate judge’s Recommendation filed December 1, 1995, in a federal habeas corpus action Mr. White had instigated. See White v. Colorado , Civil Action No. 95-D-1500 (D. Colo. Dec. 1, 1995). The magistrate judge’s Recomm endation indicates Mr.4Subsequently, the district court granted summary judgment to the

defendant State of Colorado on Mr. White’s petitionfor writ of habeas corpus, and another panel of this court affirmed that decis ion. White v. Colorado , 1998 WL 339655 (10th Cir. Jun. 23, 1998) (unpublished di sposition).

-8- White filed a habeas corpus action alleging “that h e suffers from a variety of serious medical problems and that he has not been p roperly treated for these complaints.” The magistrate judge described Mr. Wh ite’s pleading as “a laundry list of medical complaints.” The magistrate judge determined Mr. White filed one to three complaints a day regarding medical problems, and had been “seen by medical personnel approximately 110 times between F ebruary 7, 1994 and August 15, 1995 for a multitude of complaints,” notwithstanding the fact Mr. White was “hostile, disruptive and uncooperative toward medic al personnel.” The magistrate judge also noted Mr. White “has been diagnosed withsomatoform pain disorder, a psychological problem which may cause him to exagge rate his pain.” The magistrate judge concluded Mr. White had “failed to show an Eighth Amendment violation, [and] his claims should be dismissed reg ardless of whether his pleading is construed as a habeas corpus petition or a civil rights complaint.” 4

During the pendency of this action, the Petitioners filed various motions and an objection in response to defendants’ motions to dismiss. On October 24, 1996, the Petitioners filed a response to the motio ns to dismiss filed by Judge-9-

Rice and the State of Colorado et al. On October 28, 1996, the Petitioners filed an objection to dismissal without time to reply. O n October 28, 1996, the Petitioners filed a second response to defendants’ motions to dismiss, which appears to be identical to their earlier response i n all material respects.

On November 5, 1996, the district court entered an order of dismissal. In that order, the district court struck both of the P etitioners’ responses to the motion to dismiss as moot. The Petitioners’ objection to dismissal without proper time to reply was overruled. As discussed earlier, the dis trict court used this order to grant the motions to dismiss filed by Judge Hickman , Ms. Caldwell, and Arapahoe County. Finally, the district court disposed of th e claims against the remaining defendants for want of jurisdiction “to adjudicate claims arising under the United Nations’ resolution and covenants cited in the comp laint/amended petition.”

On November 29, 1996, Mr. White alone filed a notic e of appeal. On December 9, 1996, Mr. White filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and Federal Rule of Ap pellate Procedure 24. Mr. White described the issues he wished to raise on ap peal as follows: Jurisdictional issues. The District Court does hav e jurisdiction in the matter before the court in this action. The Distri ct Court Judge unlawfully struck the Petitioner’s “Reply Briefs,” and dismissed the case.5Section 1915(g), the so-called “three strikes” pr ovision of the in forma

pauperis statute, provides: In no event shall a prisoner bring a civil action o r appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated ordetained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivol ous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physic al injury. 28 U.S.C. § 1915(g).

-10- He made no allegations as to his personal well-bein g.

On December 20, 1996, the district court denied Mr. White’s motion for leave to proceed on appeal in forma pauperis . In denying Mr. White’s motion, the district court specifically invoked § 1915(g) of the in forma pauperis statute. 5 See 28 U.S.C. § 1915(g). Noting “Mr. White d[id] not allege in [his] motion and affidavit that he is under imminent danger of serio us physical injury,” the district court then determined three of Mr. White’s previous pro se civil actions had been dismissed for failure to state a claim. Accordingl y, the district court denied Mr. White’s motion to proceed on appeal without prepaym ent of fees.

On December 30, 1996, Mr. White filed a motion for review from the judgment and order denying his motion to proceed un der 28 U.S.C. § 1915. For-11-

the first time, Mr. White “ ‘ declares under penalty of perjury under the laws of the United States that he is “under imminent dangerof serious physical injury” .’ ” (Emphasis in original.) He specifically urged the district court to review “Case Number 95-D-1500,” the case discussed in the magistrate judge’s Recommendation contained in Denver’s motion to dism iss, before ruling on his motion. In his motion, Mr. White also for the firs t time alleged the Prison Litigation Reform Act violated the equal protectionclause of the Fourteenth Amendment. See U.S. Const. amend. XIV, § 1. The district court d enied Mr. White’s motion.

On January 7, 1997, Mr. White filed a notice of app eal with a motion to proceed in forma pauperis with this court. In his notice, Mr. White again a sserted he came under the imminent danger of serious physic al injury exception to 28 U.S.C. § 1915(g). He again challenged the constitutionality of the Prison Litigation Reform Act on equal protection grounds. On September 12, 1997, this court appointed counsel to address the issues raise d by Mr. White’s appeal. Counsel specifically was ordered to “address the [P rison Litigation Reform Act’s] ‘three strikes’ provision and the constitutional implications of denying litigants access to the courts if they have a history of friv olous filings.”-12-

Mr. White, through counsel, raises three issues. F irst, Mr. White alleges the district court erred in dismissing his case forlack of jurisdiction because the district court should have construed his pleading a s a civil rights claim arising under 42 U.S.C. § 1983. Second, he contends the di strict court erred in denying his motion for leave to proceed in forma pauperis because the “three strikes” provision contained in 28 U.S.C. § 1915(g) is uncon stitutional. Finally, Mr. White alleges he is in imminent danger of serious p hysical injury and, therefore, qualifies for the exception to 28 U.S.C. § 1915(g). We first address the question of whether Mr. White is in imminent danger of serio us physical injury. If we determine Mr. White falls under the exception to § 1915(g), we need not reach his constitutional challenge to the “three strikes” pro vision. If we reach the constitutional question and determine § 1915(g) is constitutional, we need not address the merits of his underlying case.

Imminent Danger of Serious Physical Injury Section 1915(g) precludes in forma pauperis status for indigent inmates seeking to proceed in a civil action if, on three p rior occasions, the litigant has had a case dismissed as frivolous, malicious, or fo r failure to state a claim on6Mr. White does not challenge the district court’s finding that he has

“three strikes,” i.e. , three actions dismissed for failure to state a cl aim.

-13- which relief may be granted. 628 U.S.C. § 1915(g). There is an exception if th e inmate litigant “is under imminent danger of serious physical injury.” Id . In denying Mr. White’s motion to proceed on appeal in forma pauperis , the district court specifically found “Mr. White d[id] not alleg e ... that he is under imminent danger of serious physical injury.” Mr. White cont ends “[t]his ruling is inconsistent with [his] pleadings and flies in the face of the facts.”

Mr. White admits he did not raise the issue of immi nent danger in his motion to proceed under 28 U.S.C. § 1915. He conte nds, however, “[o]ne need only glance at [his] allegations [in the Amended Pe tition] in order to decide that, if proven, they constitute an imminent threat to hi s physical well-being,” specifically pointing to the “allegations of depriv ation of necessary medical treatment.” He further argues that denying him “th e protection of the ‘imminent danger’ exception to § 1915(g) simply because he fa iled to reallege the basis for qualifying for the exception would be not only drac onian, but would also violate the liberal interpretation that pro se pleadings impose upon the court.”

We begin by noting the district court also rejectedMr. White’s motion for7Even if this court were to consider the allegatio ns contained in Mr.

White’s Declaration, appended to the Petitioners’ m otion for a preliminary -14- review from judgment and order denying leave to proceed in forma pauperis , wherein Mr. White did allege he was in imminent dan ger of serious physical harm. In that motion, Mr. White specifically direc ted the district court’s attention to his Amended Petition and the case in which he wa s pressing his habeas claim.

The Petitioners’ Amended Petition is largely a coll ection of vague and utterly conclusory assertions. Mr. White does not have standing to assert the alleged injuries of the six inmates who did not app eal from the district court’s dismissal of their collective action. See Swoboda v. Dubach , 992 F.2d 286, 290 (10th Cir. 1993). Therefore, we must assume Mr. Wh ite is relying on the following assertion contained in the Amended Petiti on: Richard C. White ... ha[s] been deprived of life su staining medication and medical attention/treatment, ha[s] been beaten, and/or otherwise tortured and allowed to suffer great pain, so that [his] health degenerated to a[n] extremely life-threatening degr ee .... On its face, Mr. White’s allegation contains no spe cific reference as to which of the defendants may have denied him what medication or treatment for what ailment on what occasion. Neither the Amended Peti tion nor Mr. White’s subsequent filings ever specifies even the general nature of the “serious physical injury” he asserts is imminent. 7injunction, his claim would still fail because thos e appear to be the same

allegations raised and dismissed in Mr. White’s pet ition for writ of habeas corpus. See White , 1998 WL 339655.

-15- As for Mr. White’s habeas action, the district court had before it the magistrate judge’s Recommendation, appended to Denv er’s motion to dismiss, indicating Mr. White had, in fact, been seen by med ical personnel on more than one hundred occasions over the course of twenty months for a veritable panoply of ailments. The magistrate judge’s Recommendationfurther indicated Mr. White was diagnosed as suffering somatoform pain disorder . We also now notice that another panel of this court recently determined: [Mr. White] has been seen in the prison infirmary avery considerable number of times over a three-year period for [a bro ad range of physical] complaints.... [He] has failed to show that [state authorities] have been deliberately indifferent to his serious medical needs. White v. Colorado , 1998 WL 339655 at *1 (10th Cir. Jun. 23, 1998) (unpublished disposition); see St. Louis Baptist Temple, Inc. v. Federal Deposit Ins. Corp. , 605 F.2d 1169, 1172 (10th Cir. 1979) (noting that a fed eral court may take notice of proceedings in other federal courts when those proc eedings are relevant to matters at issue). Like the district court, we conclude M r. White has failed to raise a credible allegation that he is in imminent danger o f serious physical harm, and, therefore, he does not come under the exception to § 1915(g). Cf. Gibbs v.-16-

Roman , 116 F.3d 83 (3rd Cir. 1997) (granting evidentiaryhearing on question of “imminent physical danger” under § 1915(g) where pr isoner made credible, uncontroverted allegations of physical threats and attacks). Because Mr. White does not fall under the imminent danger of serious physical harm exception, we reach his constitutional challenge to the “three strikes” provision of the Prison Litigation Reform Act. See 28 U.S.C. 1915(g).

Constitutionality of 28 U.S.C. § 1915(g) Mr. White contends the district court’s denial of h is motion for leave to proceed in forma pauperis was erroneous because 28 U.S.C. § 1915(g), the bas is of the district court’s decision, is unconstitution al. Mr. White argues that because § 1915(g) substantially burdens indigent prisoners’ right of access to the courts to litigate claims, it violates both the Due Process C lause and the Equal Protection Clause. See U.S. Const. amend. V, amend. XIV. These are quest ions of law we review de novo

. Stephens v. Thomas , 19 F.3d 498, 500 (10th Cir.), cert. denied , 513 U.S. 1002 (1994).

At issue here is § 1915(g), the “three strikes” provision of the in forma pauperis statute as amended by the Prison Litigation ReformAct. 28 U.S.C. § 1915(g), as amended by the Prison Litigation Refo rm Act of 1995, Pub. L. No.-17-

104-134, §§ 804-810, 110 Stat. 1321 (Apr. 26, 1996) . This provision requires socalled “frequent filer” prisoners to prepay the ent ire filing fee before federal courts may consider their civil actions and appeals. See Lyon v. Krol , 127 F.3d 763, 764 (8th Cir. 1997). The only exception conta ined in § 1915(g) is the “imminent danger of serious physical injury” provision discussed supra . 28 U.S.C. § 1915(g).

Mr. White contends that if he, an indigent inmate, is denied leave to proceed in forma pauperis pursuant to § 1915(g), he will be denied access to the courts available to similarly situated non-indigentinmates. He asserts that because he is raising a claim arising under the Eig hth Amendment, his right of access to the courts is “fundamental.” Thus, he cl aims, the strict scrutiny standard applies, and § 1915(g) fails constitutiona l review under both equal protection and due process principles because it is not narrowly tailored.

Several of our sister circuits already have rejecte d constitutional challenges to 28 U.S.C. § 1915(g). See Wilson v. Yaklich , 148 F.3d 596 (6th Cir. 1998) (rejecting equal protection, right of access, subst antive due process, bill of attainder, and ex post facto challenges); Rivera v. Allin , 144 F.3d 719 (11th Cir. 1998) (rejecting right of access, separation of pow ers, due process, and equal8In Roller, the Fourth Circuit rejected a prisoner’s claim thatthe filing fee

and cost provisions of the Prison Litigation ReformAct, 28 U.S.C. §§ 1915(b)(1), (b)(2) and (b)(4) violated his constitutional rightof access to the courts. Roller , -18- protection challenges), cert. dism’d 1998 WL 480078 (S. Ct. Sep. 17, 1998) (No. 98-5572); Carson v. Johnson , 112 F.3d 818 (5th Cir.) (rejecting right of acces s, due process and equal protection challenges), cert. denied , 117 S. Ct. 1711 (1997). We now join those courts, and reject Mr. White’s constitutional challenges to § 1915(g).

The right of access to which Mr. White refers flows from the First Amendment, which provides that “Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances.” U.S. Const. amend. I. However, the Supreme Court h as never held the Due Process Clause of the Fourteenth Amendment requires that all individuals be guaranteed a right of access to the courts in all circumstances. United States v. Kras , 409 U.S. 434, 450 (1973). The Supreme Court has “stopped short of an unlimited rule that an indigent at all times and inall cases has the right to relief without the payment of fees.” Id . Accordingly, “Congress is no more compelled to guarantee free access to federal courts than it is to provide unlimited access to them.” Roller v. Gunn , 107 F.3d 227, 231 (4th Cir.), cert. denied , 118 S. Ct. 192 (1997). 8 By its terms, § 1915(g) “does not prevent a priso ner with three strikes107 F.3d at 231-33. Section 1915(g) was not specif ically challenged in Roller

.

9In Bounds , actions were brought by state inmates alleging th e State of North Carolina’s failure to provide them with adequ ate legal library facilities denied them reasonable access to the courts and equ al protection as guaranteed by the First and Fourteenth Amendments. Bounds , 430 U.S. at 817-821. The Supreme Court held “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in th e preparation and filing of meaningful legal papers by providing prisoners withadequate law libraries or adequate assistance from persons trained in the law .” Id. at 828.

-19- from filing civil actions; it merely prohibits him from enjoying [ in forma pauperis ] status.” Carson , 112 F.3d at 821. As the Eleventh Circuit observe d, “proceeding [ in forma pauperis ] in a civil case is a privilege, not a right – fundamental or otherwise.” Rivera , 144 F.3d at 724.

Mr. White concedes that “access to the courts is no t an unlimited fundamental right.” However, Mr. White contends th at because his underlying case “asserts a civil rights claim that he has beensubjected to cruel and unusual punishment in violation of the Eighth Amendment,” h is right of access is “fundamental” under Bounds v. Smith , 430 U.S. 817 (1977) and its progeny. 9 See also M.L.B. v. S.L.J. , 519 U.S. 102, ___, 117 S. Ct. 555, 562-64 (1996) (indicating fee waivers are required in “a narrow c ategory of civil cases” where the litigant has a “fundamental interest” at stake)

.-20-

While most of “the access-to-courts cases in the Bounds line involved attempts by inmates to pursue direct appeals,” Lewis v. Casey , 518 U.S. 343, 354 (1996) (citing multiple cases), the Supreme Court did expand the reach of Bounds to civil rights claims arising under 42 U.S.C. § 19 83 that seek to vindicate “basic constitutional rights.” Id. , 518 U.S. at 354 (citing Wolff v. McDonnell , 418 U.S. 539 (1974)). In Lewis , however, the Supreme Court made it plain that a Bounds violation requires more than the bald assertion of a violation of a basic constitutional right under 42 U.S.C. § 1983; “an in mate alleging a violation of Bounds must show actual injury.” Id. at 348-49, 351-52.

Mr. White asserts his “fundamental” right to access flows from a violation of the Eighth Amendment prohibition against “cruel and unusual punishments.” U.S. Const. amend. VIII. “In order to state a cogn izable claim [under the Eighth Amendment], a prisoner must allege acts or omission s sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Estelle v. Gamble , 429 U.S. 97, 106 (1976).

As we noted earlier, another panel of this court, a fter thoroughly reviewing Mr. White’s medical records, concluded he “failed t o show that [state authorities]10The Eleventh Circuit rejected a similar right of access claim relying on

the M.L.B. line of cases in Rivera

. See Rivera , 144 F.3d at 724. In Rivera , the prisoner was also trying to assert an Eighth Amendm ent claim in the context of a 42 U.S.C. § 1983 action. Id

.
-21- have been deliberately indifferent to his serious medical needs.” White , 1998 WL 339655 at *1. Nothing in the record in this case i ndicates Mr. White has had less access to medical care since that determination or that the quality of his care has deteriorated. Simply put, Mr. White has failed to state an injury as required under the Bounds line of cases. 10 Moreover, if Mr. White could demonstrate he was, in fact, in danger of grave harm, he would qualify und er the imminent danger of serious physical injury exception of § 1915(g). Ac cordingly, we find no violation of Mr. White’s First Amendment right to access the courts; he simply must prepay the filing fee like most other litigants. Accord Wilson , 148 F.3d at 605 (rejecting right of access claim arising from the assertion of an Eighth Amendment claim); Rivera , 144 F.3d at 724 (same); Carson , 112 F.3d at 821 (rejecting right of access challenge to § 1915(g) arising from the assertion of double jeopardy and ex post facto claims).

Mr. White also claims § 1915(g) violates the Equal Protection Clause of the Fourteenth Amendment as guaranteed by the Due Proce ss Clause of the Fifth Amendment. Moreover, he argues that “[b]ecause § 1 915(g) substantially burdens-22-

[his] fundamental right of access to the courts, to be constitutional it must satisfy th[e] strict scrutiny standard.”

Unless a legislative classification either burdens a fundamental right or targets a suspect class, it need only bear a “ratio nal relation to some legitimate end” to comport with the Equal Protection Clause of the Fourteenth Amendment, as incorporated through the Due Process Clause of the Fifth Amendment. Romer v. Evans , 517 U.S. 620, 631 (1996). Because we have reject ed Mr. White’s assertion that he has a fundamental interest at stake, and he does not claim to be a member of a suspect class, we must reject his invit ation to review § 1915(g) under the strict scrutiny standard. See Carson , 112 F.3d at 821-22 (“Neither prisoners nor indigents constitute a suspect class. ”).

The Fifth Circuit observed, “[i]t can hardly be dou bted that deterring frivolous and malicious lawsuits, and thereby prese rving scarce judicial resources, is a legitimate state interest.” Id . at 822. “Unquestionably, the ends that Congress enacted section 1915(g) to achieve – the c urtailment of abusive prisoner tort, civil rights and conditions litigation and pr eserving scarce judicial resources – are legitimate.” Rivera , 144 F.3d at 727 (internal quotation marks and cit ation omitted); see also Wilson , 148 F.3d at 604 (noting Congress’ legitimate inte rest in-23-

deterring frivolous prisoner litigation).

Section 1915(g) is rationally related to the legiti mate end of deterring frivolous and malicious prisoner lawsuits. We alre ady have joined with many of our sister circuits in holding that the general fee provisions of the Prison Litigation Reform Act, requiring prisoner indigents to prepay a partial filing fee, are rationally related to the legitimate goal of de terring abuse of the federal judicial system. See Shabazz v. Parsons , 127 F.3d 1246, 1248-49 (10th Cir. 1997); accord Mitchell v. Farcass , 112 F.3d 1483, 1487-89 (11th Cir. 1997); Roller , 107 F.3d at 231-34; Hampton v. Hobbs , 106 F.3d 1281, 1286-87 (6th Cir. 1997). We now conclude “[i]t is equally rational f or Congress to separate frequent filer prisoner indigents from prisoner ind igents who file less frequently and disqualify the former class from the luxury of having to advance only a partial amount (or, if the prisoner is destitute, n o amount) of the filing fee.” Rivera , 144 F.3d at 728. As the Fifth Circuit concluded, “[i]t is ... undebatable that prohibiting litigants with a history of frivol ous or malicious lawsuits from proceeding [ in forma pauperis ] will deter such abuses.” Carson , 112 F.3d at 822.

Accordingly, we now join the Eleventh, Sixth, and F ifth Circuits in concluding that § 1915(g) does not violate the guar antees of equal protection and-24-

due process. See Wilson , 148 F.3d at 604-05; Rivera , 144 F.3d at 727-28; Carson , 112 F.3d at 821-22.

We reject Mr. White’s constitutional challenge to § 1915(g) of the in forma pauperis statute. See 28 U.S.C. § 1915(g). Mr. White fails to persuade us the “three strikes” provision denies him “adequate, eff ective, and meaningful” access to the federal courts. Bounds , 430 U.S. at 822. He simply has to prepay the $10 5 filing fee to pursue his appeal. Nor are we convin ced § 1915(g) impermissibly intrudes upon his equal protection or due process r ights to pursue his lawsuit. Furthermore, Mr. White fails to make a credible all egation that he is in imminent danger of serious physical harm; thus, we find no r eason not to apply § 1915(g).

Accordingly, the judgment of the district court in denying Mr. White’s motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is AFFIRMED . Mr. White’s motion for leave to proceed in forma pauperis in this court is DENIED . His appeal on the merits is DISMISSED

.