United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2782

___________ Timothy Johnson; Michael Winn, Sr.; * Edward Allen Moore, * * Appellants, * * Michael Joseph Lewis, Sr.; Melvin * Leroy Tyler, * * Plaintiffs, * * v. * * State of Missouri, Jeremiah Nixon, * Appeals from the United States Attorney General; Dora Schriro, * District Court for the Eastern Director, Department of Corrections; * District of Missouri. Michael Bowersox, Superintendent, * Potosi Correctional Center; Carl White, * Superintendent, Algoa Correctional * Center; David Dormire, Superintendent, * Jefferson City Correctional Center, * * Appellees, *

------------------------- * Melvin Leroy Tyler, * * Plaintiff, * * v. * * Mel Carnahan, Missouri State * Governor; Jay Nixon, Mo. AG; *-2-

Dora Schriro, Director MDC; * Cranston Mitchell, Chairman MBPP, * * Appellees. *

___________ No. 97-2798

___________ Timothy Johnson; Michael Winn, Sr.; * Edward Allen Moore; Michael Joseph * Lewis, Sr., * * Plaintiffs, * * Melvin Leroy Tyler, * * Appellant, * * v. * * State of Missouri; Jeremiah Nixon, * Attorney General; Dora Schriro, * Director, Department of Corrections; * Michael Bowersox, Superintendent, * Potosi Correctional Center; Carl White, * Superintendent, Algoa Correctional * Center; David Dormire, Superintendent, * Jefferson City Correctional Center, * * Appellees, * *

-------------------------- *The Honorable Catherine D. Perry, United States District Judge for the Eastern 1 District of Missouri. -3- Melvin Leroy Tyler, * * Appellant, * * v. * * Mel Carnahan, Missouri State * Governor; Jay Nixon, Mo. AG; Dora * Schriro, Director MDC; Cranston * Mitchell, Chairman MBPP, * * Appellees. *

___________ Submitted: January 14, 1998 Filed: April 24, 1998

___________ Before WOLLMAN, HEANEY and BRIGHT, Circuit Judges.

___________ BRIGHT, Circuit Judge. In th ese consolidated appeals, Missouri inmates, Timothy Johnson, Michae l Winn, Sr., Edward Allen Moore, and Melvin Leroy Tyler, appeal from a judgment of th e district court dismissing their complaints challenging Mo. Rev. Stat. § 217.26 2 1 (199 6), which provides sanctions if an inmate files a frivolous claim with a court

. Because we agree with the district court that appellants lack standing, we affirm.
Under the statute, if a court finds that an inmate has filed a "false, frivolous or malicious action or claim[,]" the inmate could receive a delayed initial hearing on hisIn relevant part, Mo. Rev. Stat. § 217.262 provides: 2 An additional sixty days shall be added tothe time that an offender is f irst eligible for parole consideration hearing or a sum of up to fifty percent of the average balance of the offender's account for any portion of the preceding twelve months during which the offender's account had a positive balance, shall be deducted from an offender's account for each instance that a court finds that the offender has . . . [f]iled a false , frivolous or malicious action or claim with the court . . . . -4- or her p arole eligibility or a loss of funds from the inmate's account. Assistan t 2 attorneys general not

ified Johnson and Winn that they had pending lawsuits and if the suits were found to be frivolous, statutory sanctions could be imposed and furthe r warn ed that sanctions would be imposed if they filed future frivolous lawsuits

. However, at the time of the district court's decision, no statutory sanctions had bee n imposed on any of the appellants. In the circumstances of this case, we agre e with the district court that appellants lack standing to challenge the statute. The Supreme Court has "always insisted o n strict compliance with this jurisdictional standing requirement." Raines v. Byrd , 117 S. Ct. 2312, 231 7 (1997). "The standing requirement is, at its core, a constitutionally mandated prerequisite for federal j urisdiction, and 'an essential and unchanging part of the case-or-controversy requirement of Article III.'" Mausolf v. Babbitt , 85 F.3d 1295, 1301 (8th Ci r. 1996) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 56 0 (1992)). "To establis h standing, a party must, at a minimum, have suffered an 'injuryin-fact,' fairly traceable to the defendant's conduct, which is likely to be redressed by a favorable decision." Brouhard v. Lee , 125 F.3d 656, 661 (8th Cir. 1997). "A n 'injury-in-fact' is an actual or imminent invasion of a legally protected interest, which is both concrete and particularized to the appellant." Id.-5-

On appeal, appellants argue that although sanctions have not yet been imposed, they are "im minent." Initially, we note that in the district court appellants did no t primarily rely on an imminence argument. Instead, they argued that the statute and the letters from the assistant attorneys general chilled their "right of access to the court to fi le meritorious, as well as non-meritorious, claims and that is the injury upon whic h this case is based." Ap p. at 273. The district court rejected their "chilling" argument, cit ing e.g. , Laird v. Tatum , 408 U.S. 1, 13-14 (1972) ("[a]llegations of a subjectiv e 'chill' are not an adequat

e substitute for a claim of specific present objective harm or a threat of specific future harm"); Younger v . Harris , 401 U.S. 37, 51 (1971) ("existence of a 'chilling effect,' . . . has never been considered a sufficient basis, in and of itself, for prohibiting state action"). At oral argument appella nts appeared to have abandoned their "chilling" argument.
To the extent that the argument is before this court, we believe that the district c o urt correctly held that the letters and statute did not chill appellants' right of access to the courts, both as a factual and legal mat ter. As a factual matter, as the state notes, several of the appellants have filed lawsuits after August 28, 1995, the effective date of the statu te. As a legal matter, the Supreme Court held that in the context of a n access-to-courts claim, in order to satisfy the injury-in-fact requirement, a plaintif f must"d emonstrate that a nonfrivolous legal claim had been frustrated or was bein g impeded." Lewis v. Casey , 116 S. Ct. 2174, 2181 (1996) (footnotes omitted ). Because the statu te prohibits only frivolous claims, no such showing has been made here. I n Lewis , th e Court stated that "[d]epriving someone of a frivolous claim, . . . deprive s him of nothin g at all, except perhaps the punishment of [Fed. R. Civ. Pro.] 1 1 sanctions." Id. at 2181 n.3.
In Lyon v. Krol , 127 F.3d 763, 765 (8th Cir.1997), this court recently held that an inmate, who had sufficient funds to pay a filing fe e, lacked standing to challenge the filing fee requirements of the Prison Litigation Reform A ct, 28 U.S.C. §1915(g). CitingAt oral argument, the state informed the court tha t the statute was being applied 3 only as to conduct that occurred after the statute's effective date. -6- Lewis , thi s court stated that "it is not sufficient for standing to show that court access could be impeded. Rather, a prisoner must show that it actually has been." Id. We also reject appel lants' argument that they have standing because imposition of a statutory sanction is "imminent." It is well-settled that "[a]llegations of possible f u ture injury do not satisfy the requirements of Art. III." Whitmore v. Arkansas , 495 U.S. 149, 158 (199 0). Instead, "[a] threatened injury must be 'certainly impending' to constitute injury in fact." Id. (quoting Babbitt v. United Farm Work ers Nat. Union , 442 U.S. 289, 298 (1979)). Moreover, "allegations of future inj ury [must] be particular and concrete." Steel Co. v. Citizens For a Better Environment , 118 S. Ct. 1003, 102 0 (1998)

. The Supreme Court has explained that "[p]laintiffs must demonstrate a 'pers onal stake in the outcome' in order to 'assure that concrete adverseness whic h sharpens the presentation of issues' necessary for the prop er resolution of constitutional questions." City of Los Angeles v. Lyons , 461 U.S. 95, 101 (1983) (quoting Baker v. Carr , 369 U.S. 186, 204 (1962)). Although appellants allege that sanctions are imminent beca use Johnson, Moore, and Winn ha d cases which were dismissed as frivolous, Johnson's and Winn's case s were dismissed b efore the effective date of the statute, and thus the dismissals cannot trigger statutory sanction. As to Winn, in a July 199 6 affidavit, he asserts that after the ef fective date of the statute, a district court dismissed one of his cases as frivolous

. However, he does not as sert that sanctions were imposed as a result of the dismissal. 3 In any event, it is undis puted that statutory sanctions have not been imposed on appella nts. Although in the future, an appellant may suffer one of the statutory s anctions as a consequence of filing a frivolous lawsuit, as just explained, "[a]bstract injury is not enough." Lyons , 461 U.S. at 101. At this time, the timing and type ofFor the same reason, we agree with the state that appellants' challenge is no t 4 ripe for review. Although we realize that standing and ripeness are te chnically different doctri nes, they are closely related in that each focuses on "whether the harm asserted has matured sufficiently to warrant judicial intervention." Warth v. Seldin , 422 U.S. 490, 499 n.10 (1975) (observing "close affinity" between standing and ripeness)

. Indeed , "in cases like this one [the doctrines] perhaps overlap entirely." Smith v

. Wisconsin Dep't of Agric., Trade & Consumer Protection , 23 F.3d 1134, 1141 (7th Cir. 1994). Thus, "[w]hether this principle is labeled 'standing' or 'ripeness', [appellants' ] claim presents no justiciable case or controversy." Id. at 1142. -7- injury to the appellants cannot be determined. See Iowa Utilities Bd. v. F.C.C. , 12 0 F.3d 753, 817 (8th Cir. 1997) (no standing because court could not determ ine if "takings were imminently likely to occur"), cert. granted , 118 S. Ct. 879 (1998). As the stat e points out, a number of things must occur before appella nts will suffer an actual or even an imminent injury. First, an appellant must engage in the conduct prohibited b y 4 statute, that is he must file a lawsuit, which a court finds to be frivolous or malicious. We note that the Sup reme Court has cautioned that where "acts necessary to make the injury happen are at least partly within the plaintiff's own control[,] . . . the injury [must] proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all." Lujan , 504 U.S. at 565 n.2.
As a pra ctical matter, the state argues that even if an appellant files a lawsui t which is dismissed a s frivolous, sanctions may not be imposed. The state reasons that if a federal court dismisses a suit as frivolous under 28 U.S.C. § 1915(d), the state or prison officials would not

be served with the notice of the dismissal and thus would be unaware of the finding of frivolity, which is a prerequisite to the im position of sanctions.
The state goes on to argue that even if it receives notice of a dismissal o n grounds of frivolity, the statutory sanctions differ depending on an inmate' s circumstances, and that the record here is undeveloped as to any sanction that might beBeca use appellants did not submit this material to the district court an d 5 ordinarily we do not allow a party to expand the record on appeal, see Barry v. Barry , 78 F.3d 375, 3 79 (8th Cir. 1996), the state has filed a motion to strike portions o f appe llants' reply brief. However, we have considered the additional material in th e reply brief, includin g the regulations implementing Mo. Rev. Stat. § 217.262, but find that the material does not aid appe llants' standing arguments. We thus deny the state's motion to strike. -8- imposed upon any of the appellants. Although the st ate concedes that the record shows that Tyler has already received his fir st parole hearing and thus would not be subject to the sanction of a delayed parole hearing, the state also notes he may not be subject to a loss of funds from his account because the statute provides that funds will not b e de ductedif an account has less than ten dollars. See Mo. Rev. Stat. § 217.262.4

. Moreov er, the state argues that the monetary sanction is no different than Rule 1 1 sanctions for filing frivolous lawsuits. The state alsoargues that an appellant would not have standing to c hallenge a delayed parole hearing, since he would not have a legally protected interest in a parole eligibility hearing date. See Raines , 117 S. Ct. at 231 7 ("alleged injury must be legally and judicially cognizable").
We need not address the state's a rguments concerning the nature of the statutory sanc tions. Our review of the record convinces us that appellants' alleged injuries ar e "too speculative to invoke t he jurisdiction of an Art. III court." Whitmore , 495 U.S. at 157. Apparently re cognizing the weakness of their standing arguments, in their reply brie f, appellants submit evidence that the state has imposed statutory sanctions o n another inmate. However, as a generalrule litigants are prevented "'from asserting the

5 rights or leg al interests of others in order to obtain relief from injury to themselves.' " Iowa Utilities Bd. , 120 F.3d at 817 (quoting Ben Oehrleins & Sons & Daughter, Inc

. v. Hennepin County , 115 F.3d 1372, 1379 (8th Cir.), cert. denied , 118 S. Ct. 62 9 (1997)) . "Before a litigant will be allowed to assert a claim on behalf of a third party,We do not consider the arguments raised for the first time on appeal in Tyler's 6 and Johnson's pro se briefs. -9- the litigant must show, among other things, that the third party is unable to protect its own interests." Iowa Utilities Bd. , 120 F.3d at 817. Appellants do not make such a sho wing here. See id. ; see also Printz v. United States , 117 S. Ct. 2365, 2384 (1997) (Court "decline[s] to speculate regarding the rights . . . o f parties not before the Court").
The claims of the prisoners present an important issue, but the issue is bette r addressed with a record for a court to review in determining the constitutionality of the statute in question. In the present posture of the case, we properly do not proceed to the merits of the prisoners' claims. Accordingly, we affirm the district court's judgment dismissing appellants ' complaints for lack of standing. 6 A true copy.

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