United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2015 Decided August 7, 2015

No. 13-5362

BILLY G. ASEMANI,

APPELLANT

v.

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,

USCIS, A BRANCH OF THE U.S. DEPARTMENT OF HOMELAND 

SECURITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-02268)

Kwaku A. Akowuah, appointed by the court, argued the 

cause for appellant. With him on the briefs were Jeffrey T. 

Green and Tobias S. Loss-Eaton, appointed by the court. 

Wynne P. Kelly, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Ronald C. 

Machen Jr., U.S. Attorney at the time the brief was filed, and 

R. Craig Lawrence, Assistant U.S. Attorney.

Before: ROGERS, TATEL and SRINIVASAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.
2

SRINIVASAN, Circuit Judge: Billy G. Asemani is an 

inmate in the Western Correctional Institution in Cumberland, 

Maryland. After United States Citizenship and Immigration 

Services (USCIS) denied Asemani’s application for 

naturalization, he filed a mandamus petition seeking to 

compel the agency to grant him a hearing to review the denial. 

Asemani initially obtained leave from the district court to 

pursue his petition in forma pauperis (IFP). But the court

subsequently concluded that Asemani could not proceed IFP 

because of the so-called “three-strikes rule” set out in the 

Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), 

which bars certain prisoners from proceeding IFP if three or 

more prior suits have been dismissed on specified grounds. 

Asemani now brings this appeal, arguing that he qualifies for 

IFP status under the imminent danger exception to the threestrikes rule, or, alternatively, that the three-strikes rule is 

unconstitutional as applied to his case. We reject his 

arguments and therefore deny his request to proceed IFP on 

appeal.

I.

A.

Congress enacted the PLRA in response to concern that 

prisoners were “flooding the courts with meritless claims.” 

Chandler v. D.C. Dep’t of Corr., 145 F.3d 1355, 1356 (D.C. 

Cir. 1998). The PLRA substantially altered the availability of

IFP status with respect to prisoner suits. See Tucker v. 

Branker, 142 F.3d 1294, 1296-97 (D.C. Cir. 1998). 

Under the PLRA, all prisoner-litigants must pay filing 

fees in full. A prisoner who qualifies for IFP status, however, 

need not pay the full filing fee at the time he brings suit. 28 

U.S.C. § 1915(a)(1). Rather, he can pay the filing fee in 
3

installments over time. Id. § 1915(b). But the PLRA bars 

certain prisoners from proceeding IFP under the three-strikes

rule contained in § 1915(g), which reads:

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.

The three-strikes rule thus requires a prisoner who otherwise 

qualifies for IFP status to pay the full filing fee at the time of 

filing suit rather than in installments. See generally Coleman 

v. Tollefson, 135 S. Ct. 1759, 1761-62 (2015).

As the text of the provision indicates, § 1915(g) also 

contains an exception to the exception: even if a prisoner has 

three strikes, he may proceed IFP—i.e., he may pay the filing 

fee in installments—if he is “under imminent danger of 

serious physical injury.” That exception “eases any 

constitutional tension that might result from denying access to 

the courts to prisoners facing life-threatening conditions.” 

Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415, 420 (D.C. 

Cir. 2009).

B.

Asemani is currently serving a thirty-year sentence in the 

Western Correctional Institution in Cumberland, Maryland. 
4

While incarcerated, at least three of his suits have been 

dismissed on grounds qualifying as “strikes” for purposes of 

the three-strikes rule. On December 21, 2011, Asemani filed 

a petition for a writ of mandamus in the district court. His 

petition seeks an order compelling USCIS to act upon his 

request for a hearing concerning the denial of his application 

for naturalization. He filed a motion to proceed IFP the same 

day. On February 14, 2012, the district court granted that 

motion.

On August 10, 2012, the government, citing the threestrikes rule, moved to vacate the order granting Asemani IFP 

status. In response, Asemani conceded that he has three 

strikes but argued that he nonetheless qualifies for IFP status 

under the imminent danger exception. He explained that he 

had suffered “two back-to-back acts of assaults” by other 

inmates while in prison. App. 40. As a result of those 

assaults, Asemani had been placed in protective custody, 

which “requires his placement in a segregated housing unit.” 

Id. At the time of Asemani’s response to the government’s 

motion to vacate IFP status, he had been in protective custody 

for “nearly a year,” id., and anticipated remaining in 

protective custody for the “indefinite” future, id. at 41. Even 

while in protective custody, he claimed that he faces a 

“constant threat of violence because of the maximum security 

nature” of his fellow inmates. Id. 

The district court granted the government’s motion and 

revoked Asemani’s IFP status, ordering him to pay the full 

$350 filing fee within thirty days or face dismissal of his case. 

Asemani failed to pay the filing fee and his case was 

dismissed. Asemani now appeals the district court’s order

vacating IFP status and its order dismissing his case. 

Asemani also seeks leave to proceed IFP on appeal. 
5

We appointed counsel to argue as amicus curiae in favor 

of his position. In lieu of filing his own briefing in this 

appeal, Asemani asks us to “construe [amicus’s] filings as 

being his position.” Pro Se Appellant’s Mot. For Waiver of 

His Obligation to File “Appellant Br.” 3. Accordingly, we 

attribute amicus’s arguments to Asemani.

II.

As has been our practice in cases arising in the same 

posture, we first consider Asemani’s request to proceed IFP 

on appeal. See Smith v. District of Columbia, 182 F.3d 25, 27 

(D.C. Cir. 1999). The PLRA’s three-strikes rule applies with 

equal force to “a prisoner bring[ing] a[n] . . . appeal,” so 

Asemani cannot proceed IFP unless he demonstrates that he is 

“under imminent danger of serious physical injury.” 28 

U.S.C. § 1915(g). The government argues that Asemani 

should not be allowed to proceed IFP on appeal “for the same 

reasons the district court revoked the privilege below.” 

Appellee Br. 45. The court concluded that, for two 

independent reasons, Asemani failed to establish eligibility 

for the imminent danger exception. First, the court held that 

Asemani’s allegations of imminent danger were untimely and 

could not be considered. Second, the court determined that,

even if it could consider Asemani’s allegations, he fails to 

qualify for the imminent danger exception because the danger 

he alleges is unrelated to his underlying mandamus claim. 

As to the government’s timeliness argument, the parties 

both assume that the timeliness of Asemani’s allegations

before the district court necessarily determines whether those 

allegations are timely for purposes of IFP status on appeal. 

Even assuming that is true, we conclude that Asemani’s 

allegations of imminent danger were timely before the district 

court. As to the district court’s second ground for denying 
6

IFP status, this court has not resolved whether § 1915(g) 

requires that there be some nexus between the imminent 

danger alleged and the prisoner’s underlying claim. See 

Mitchell, 587 F.3d at 421. We do not resolve that issue in this 

case. Instead, we conclude that Asemani is barred from 

proceeding IFP on appeal because his allegations fail to make 

out the requisite imminent danger.

A.

Asemani’s allegations of imminent danger first appeared 

in his pro se opposition to the government’s motion to revoke 

his IFP status. The district court concluded that those 

allegations could not be considered. Asemani, the court held, 

was required to include those allegations in his complaint or 

in his motion for IFP status. The government, agreeing with 

the district court, argues that we therefore should decline to

consider Asemani’s allegations of imminent danger. We are 

unconvinced.

It is well established that a prisoner seeking to proceed 

IFP need not affirmatively plead compliance with § 1915(g)’s 

three-strikes rule. The PLRA sets forth numerous pleading 

requirements for prisoners seeking IFP status, see, e.g., 28 

U.S.C. § 1915(a)(1)-(2), and compliance with § 1915(g) is not 

among them. “[H]ad Congress intended to require prisoners 

to affirmatively show that they were not subject to the threestrikes provision, it would have included that requirement in 

the list of requirements prisoners must address in order to 

obtain IFP status.” Thompson v. DEA, 492 F.3d 428, 434 

(D.C. Cir. 2007) (internal quotation marks and ellipses 

omitted). If a prisoner is not required preemptively to negate 

the three-strikes rule in a motion for IFP status, it makes little 

sense to think he nevertheless would need preemptively to 

present facts establishing an exception to that rule.
7

Our precedent does not suggest otherwise. To be sure, 

we have held that § 1915(g) places certain temporal 

constraints on the facts that may be considered in evaluating 

whether a prisoner faces imminent danger. The text of the 

PLRA dictates that a prisoner with three strikes cannot seek 

IFP status to “bring a civil action . . . unless the prisoner is 

under imminent danger of serious physical injury.” 28 U.S.C. 

§ 1915(g) (emphasis added). Section 1915(g)’s use of the 

present tense and its concern with the initial step of bringing 

the action indicates that the exception applies only if the 

danger existed at the time the prisoner filed his complaint. 

Pinson v. Samuels, 761 F.3d 1, 5 (D.C. Cir. 2014); see 

Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 

2007). In other words, the availability of the imminent danger 

exception turns on “whether the prisoner ‘is under imminent 

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

action,” not “whether he later in fact suffers” (or earlier 

suffered) such a threat. Pinson, 761 F.3d at 5 (quoting 28 

U.S.C. § 1915(g)). 

We have never held, though, that a prisoner’s allegations 

about the conditions he faces at the time “he ‘bring[s]’ his 

action,” id., must be made in any particular type of filing. 

While certain of our decisions have described a prisoner’s 

allegations by reference to the specific document in which he 

happened to have made those allegations, that language was 

merely descriptive, not prescriptive. In Pinson v. Samuels, for 

example, we held that the imminent danger inquiry turns on

“the alleged danger at the time [the prisoner] filed his 

complaint,” and thus we looked “only to the documents 

attesting to the facts at that time, namely his complaint and 

the accompanying motion for IFP status.” Id. (first alteration 

in original). While it is descriptively true that the only 

“documents attesting to the facts” at the time Pinson filed his 

complaint were the “complaint and the accompanying motion 
8

for IFP status,” the operative question under § 1915(g) is 

always whether some timely filing avers facts suggesting a 

prisoner was “under imminent danger of serious physical 

injury” at the time he “br[ought]” his complaint. 28 U.S.C. 

§ 1915(g). Here, Asemani’s response to the government’s 

motion to vacate IFP status “attest[ed] to the facts” in 

existence at the time he filed this action. Pinson, 761 F.3d at

5. We therefore conclude that those allegations were timely 

before the district court.

B.

We must determine whether the facts alleged by Asemani

demonstrate that he faced “imminent danger of serious 

physical injury.” 28 U.S.C. § 1915(g); see Pinson, 761 F.3d 

at 4. The parties, relying on our approach in prior decisions, 

see Pinson, 761 F.3d at 4-5; Mitchell, 587 F.3d at 420, assume 

that the conditions faced by a prisoner when initially filing 

suit in the district court determine the applicability of the 

imminent danger exception on appeal. Whether 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, the distinction makes no difference in this case. 

Nothing in the record suggests that Asemani’s conditions 

have changed in any way between the time he filed his 

complaint and the time he filed this appeal. We therefore 

assess whether he qualifies for the imminent danger exception 

on appeal based on the allegations he submitted to the district 

court when seeking to proceed IFP below. In conducting that 

inquiry, we accept his factual allegations as true. Ibrahim v. 

District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006). 

According to those allegations, at the time Asemani filed 

this action, he was “housed under protective custody status.” 

App. 40. Protective custody status “requires his placement in 
9

a segregated housing unit.” Id. Asemani’s placement in 

protective custody, he explains, came about because of “two

back-to-back acts of assaults on him by other inmates.” Id. 

Those assaults apparently occurred because “Asemani has

many inmate enemies” in prison. Id. at 41. Asemani further 

claims that, even under protective custody, he is “faced with a 

constant threat of violence because of the maximum security 

nature of the other inmates[,] . . . many of whom are serving 

life sentences.” Id. 

Those allegations, we conclude, are materially

indistinguishable from allegations this court has previously

deemed insufficient to establish “imminent danger.” In 

Mitchell v. Federal Bureau of Prisons, the prisoner alleged 

that, “even though BOP knew he had testified for the 

government, it illegally transferred him” to “a prison known 

for murders and assaults on . . . anyone who has been known 

as a snitch, and where he was nearly murdered in October 

2003.” 587 F.3d at 420-21 (internal quotation marks 

omitted). We found Mitchell’s allegations inadequate to 

demonstrate “that the danger he face[d] [wa]s imminent.” Id. 

at 421. Even though Mitchell alleged that he had suffered a 

violent assault in the past, that assault took place seventeen 

months before he filed his action. That the prison was 

generally dangerous and was “known for murder and 

assaults” on known “snitches” like Mitchell, we determined,

was also insufficient to demonstrate that he faced an ongoing 

threat of imminent danger. Id. at 420-21. 

We reached the same conclusion in Pinson. Pinson 

claimed that, “as a homosexual and former gang member, his 

designation to [a special unit of the prison] alongside 

members of rival gangs placed him in imminent danger of 

death or serious bodily injury.” Pinson, 761 F.3d at 5. We 

held that Pinson’s allegations of danger, like those in 
10

Mitchell, failed to demonstrate that the danger he faced was 

imminent. Id. We therefore denied Pinson’s motion for IFP 

status on appeal. Id. at 5-6.

The facts alleged by Asemani are materially 

indistinguishable from those presented in Mitchell and 

Pinson. While Asemani alleges that he suffered two beatings 

in the past, he also alleges that, as a result of those beatings, 

he was moved into protective custody. The beatings, which 

took place while Asemani was in the general prison 

population, do not indicate that Asemani continued to face

imminent danger at the time he filed his complaint—i.e., after 

he had been moved into protective custody. And he makes no 

allegation that he has suffered any beatings or received 

specific threats while in protective custody. Rather, he 

alleges a generic “threat of violence” due to the “maximum 

security nature of other inmates” housed in the prison 

population. App. 41. 

Asemani also alleges that he might face added danger—

perhaps even in protective custody—because he has “inmate

enemies.” Id. But that allegation is no stronger than the ones

we deemed insufficient in Pinson and Mitchell: Mitchell and 

Pinson effectively alleged that they had “enemies” in prison 

due to certain characteristics they possessed. Just as in 

Pinson and Mitchell, Asemani’s allegations with respect to 

the danger he faced in protective custody are insufficient for 

us to conclude he faces an imminent danger.

Asemani’s allegations, moreover, fall considerably short 

of the circumstances courts have deemed adequate to 

demonstrate “imminent danger.” The Ninth Circuit, for 

example, recently held that an inmate established imminent 

danger when she alleged that she had been “receiving 

constant, daily threats of irreparable harm, injury and death” 
11

due to rumors allegedly started by prison officials. Williams 

v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). Similarly, 

the Second Circuit observed that “[a]n allegation of a recent 

brutal beating, combined with three separate threatening 

incidents, some of which involved officers who purportedly 

participated in that beating, is clearly the sort of ongoing 

pattern of acts that satisfies the imminent danger exception.” 

Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Here, 

by contrast, Asemani’s principal allegation is that a 

background threat inheres in his placement in a certain 

population. Unlike the prisoners in Williams and Chavis, he 

does not identify a particular recent threat (or pattern of 

threats) substantiating a danger that is sufficiently “imminent” 

under § 1915(g).

III.

Because we conclude that the three-strikes rule bars 

Asemani from proceeding IFP on appeal, we must address his

contention that the rule is unconstitutional as applied to his 

case. The Supreme Court has held that, in certain situations, a 

litigant is constitutionally entitled to a waiver of filing fees. 

The primary circumstance in which the Constitution requires

waiver of court fees is when an indigent person challenges his 

criminal conviction. See Griffin v. Illinois, 351 U.S. 12, 17-

18 (1956). Outside the criminal context, the Supreme Court 

has recognized only “a narrow 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). Asemani asserts that the 

action he brings falls within that “narrow category of civil 

cases” because it involves an important interest—a claim of 

right to naturalized United States citizenship. Because the 

PLRA’s three-strikes rule would effectively deny him the 
12

ability to vindicate that interest, he argues, the statute is 

unconstitutional as applied to his case.

Even assuming arguendo that the PLRA’s three-strikes 

rule might raise constitutional concerns when a prisoner seeks 

access to the courts to vindicate certain fundamental rights, 

see Thomas v. Holder, 750 F.3d 899, 909 (D.C. Cir. 2014) 

(Tatel, J., concurring), we conclude that this is not such a 

case. The Supreme Court has cautioned repeatedly that “a 

constitutional requirement to waive court fees in civil cases is 

the exception, not the general rule.” M.L.B., 519 U.S. at 114 

(citing United States v. Kras, 409 U.S. 434 (1973)). The 

Court has recognized such a requirement only in a handful of 

cases involving “state controls or intrusions on family 

relationships.” Id. at 116. Those cases differ from “the mine 

run of [civil] cases,” according to the Court, because 

“[c]hoices about marriage, family life, and the upbringing of 

children are among associational rights [the] Court has ranked 

as ‘of basic importance to our society.’” Id. (quoting Boddie

v. Connecticut, 401 U.S. 371, 376 (1971)). 

Apart from that context, however, the Court has

consistently rejected claims that other important interests

merit the same constitutional treatment. For example, the 

Court has held that securing bankruptcy discharge in order to 

obtain a “desired new start in life” is an “important” interest, 

but does “not rise to the same constitutional level” as averting 

state intrusions into family life. Kras, 409 U.S. at 444-45. 

The Court has likewise rejected a claim of constitutional 

entitlement to a waiver of filing fees in connection with a

challenge to the termination of welfare benefits. Ortwein v. 

Schwab, 410 U.S. 656 (1973) (per curiam).

Asemani argues that his action asserting “a claim of right 

to U.S. citizenship and a concomitant right against removal to 
13

Iran,” Amicus Br. 40, should be added to the “narrow 

category of civil cases” in which access to the courts must be 

guaranteed regardless of a party’s ability to pay, M.L.B., 519 

U.S. at 113. But Asemani points to no case in which a court 

has recognized an alien’s claim of right to the grant of

naturalized citizenship to be on par with the claimed right to 

avoid “state controls or intrusions on family relationships” 

discussed by the Supreme Court in M.L.B. Id. at 116. 

Instead, Asemani relies on Trop v. Dulles, 356 U.S. 86 (1958) 

(plurality op.). In that case, the Court suggested that a nativeborn United States citizen has a “fundamental right” to retain 

his citizenship as long as he does not “voluntarily renounce or 

abandon” it. Id. at 93. But Trop and other such cases speak 

to the government’s ability to revoke a citizen’s citizenship, 

however acquired. See, e.g., Fedorenko v. United States, 449 

U.S. 490, 505-06 (1981); Afroyim v. Rusk, 387 U.S. 253, 267-

68 (1967). There is no argument here that Asemani’s

citizenship or immigration status has been revoked or altered 

by USCIS. In fact, the argument is the opposite—Asemani is 

an alien who believes that USCIS erred when it failed to alter 

his immigration status through the naturalization process. 

We are aware of no case suggesting that an alien has the 

sort of fundamental right associated with obtaining 

naturalized citizenship status that would qualify for a 

constitutional entitlement to a fee waiver under the Supreme 

Court’s decision in M.L.B. To the contrary, the naturalization 

process lacks many of the indicators the Court has found 

important in delimiting the “narrow 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., 

519 U.S. at 113. Unlike the interests at issue in M.L.B. and 

Boddie v. Connecticut, 401 U.S. 371, Asemani’s interest in 

obtaining citizenship through naturalization does not involve 

state-imposed “controls or intrusions on family relationships.” 
14

M.L.B., 519 U.S. at 116. Nor is the naturalization process 

“quasi criminal in nature,” unlike the “State’s devastatingly 

adverse action” considered in M.L.B., in which the plaintiff, 

“[l]ike a defendant resisting criminal conviction,” sought to 

withstand “the State’s authority to sever permanently a 

parent-child bond.” Id. at 116, 124-25. Instead, citizenship 

granted via naturalization—like bankruptcy discharge, Kras, 

409 U.S. 434, or welfare benefits, Ortwein, 410 U.S. 656—

involves a discretionary benefit conferred by statute. The 

Court has made clear that Congress enjoys “broad power over 

naturalization and immigration,” Demore v. Kim, 538 U.S. 

510, 521 (2003) (quoting Mathew v. Diaz, 426 U.S. 67, 79-80 

(1976)), and that “[n]o alien has the slightest right to 

naturalization unless all statutory requirements are complied 

with,” United States v. Ginsberg, 243 U.S. 472, 475 (1917). 

The specific claims made in this case thus fall “with[in]

the generality of civil cases, in which indigent persons have 

no constitutional right to proceed in forma pauperis.” M.L.B., 

519 U.S. at 119. In such a situation, “the applicable equal 

protection standard ‘is that of rational justification.’” Id. at 

115-16 (quoting Ortwein, 410 U.S. at 660). The three-strikes 

rule readily meets that standard in these particular 

circumstances. “The State’s need for revenue to offset costs, 

in the mine run of cases, satisfies the rationality requirement.” 

Id. at 123. The three-strikes rule also furthers Congress’s 

expressed interest in stemming a perceived “flood[]” of 

“meritless claims.” Chandler, 145 F.3d at 1356. We 

therefore conclude that the three-strikes rule is constitutional

as applied to this action.

* * * * *

For the foregoing reasons, we deny Asemani’s motion to 

proceed IFP and do not reach the merits of his appeal. See 
15

Pinson, 761 F.3d at 5-6; Smith, 182 F.3d at 30. Under this 

circuit’s precedent, Asemani now has a choice. If he wishes

to proceed with this appeal, he has thirty days from the date of 

this opinion to pay the filing fee up front. See Mitchell, 587 

F.3d at 422. But Asemani may also elect not to proceed with 

his appeal, in which case his appeal will be dismissed and no 

fees will be collected. See Smith, 182 F.3d at 30; Wooten v. 

D.C. Metro. Police Dep’t, 129 F.3d 206, 208 (D.C. Cir.1997). 

We note that Asemani’s arguments in favor of 

proceeding IFP on appeal directly mirror his arguments 

challenging the district court’s decision to revoke IFP status. 

As we have already rejected those arguments in this opinion, 

Asemani, were he to choose to pay the filing fee and proceed 

with his appeal, would likely be paying “to have us say 

essentially what we have already said about his case.” 

Wooten 129 F.3d at 208.

So ordered.