United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2014 Decided May 6, 2014

No. 12-5228

KEITH THOMAS,

APPELLANT

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL REAL PARTY 

IN INTEREST AND ANTHONY HEDGPETH, WARDEN SALINAS 

VALLEY STATE PRISON,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00459)

On Motion for Reconsideration 

Sat Nam S. Khalsa, appointed by the court, argued the 

cause as amicus curiae in support of appellant. With him on 

the briefs was Anthony F. Shelley, appointed by the court.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause 

for appellee. With her on the brief were Ronald C. Machen 

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

Attorney.
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Before: TATEL, SRINIVASAN, and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge TATEL.

TATEL, Circuit Judge: After Appellant, a state prisoner,

failed to respond to our order to show cause why he should 

not be compelled to pay a required filing fee, we dismissed 

his appeal for failure to prosecute. Now supported by amicus 

counsel, Appellant has moved for reconsideration of our 

dismissal, contending that requiring him to pay a filing fee 

would unconstitutionally deprive him of his right to access the 

courts. Without reaching this constitutional question, we deny 

the motion because the claims Appellant raises in his appeal

are devoid of merit and reinstating the appeal would therefore 

be a pointless gesture.

I.

Appellant Keith Thomas is an inmate of Salinas Valley 

State Prison in California. Acting pro se, he filed a petition 

for writ of mandamus in the district court, seeking to compel 

Attorney General Eric Holder to reclassify marijuana as a 

Controlled Substances Act (CSA) Schedule V controlled 

substance. Schedule V encompasses those drugs with a “low 

potential for abuse,” a “currently accepted medical use in

treatment,” and little potential for “physical dependence or 

psychological dependence.” 21 U.S.C. § 812(b)(5). By 

contrast, Schedule I—marijuana’s current classification—is

reserved for drugs with a “high potential for abuse,” “a lack of 

accepted safety for use . . . under medical supervision,” and 

“no currently accepted medical use in treatment in the United 

States.” Id. § 812(b)(1). Alleging that he suffered from 

arthritis and osteoarthritis, Thomas claimed that marijuana’s 
3

Schedule I classification prevented him from obtaining the 

drug in order to treat his pain. The district court denied 

Thomas’s petition for mandamus, holding that the Attorney 

General “has the discretion to reclassify a controlled 

substance, and where the action petitioner seeks to compel is 

discretionary, he has no clear right to relief and mandamus 

therefore is not an appropriate remedy.” Thomas v. Holder, 

No. 12-0459, slip op. at 2 (D.D.C. Mar. 26, 2012).

Thomas appealed. As he had before the district court, he 

moved to proceed in forma pauperis, or IFP, which would 

enable him to pay any filing fees in installments over time or 

possibly not at all. See 28 U.S.C. § 1915(b). Under what is 

known as the three-strikes provision of the Prison Litigation

Reform Act (PLRA), however, a prisoner may not proceed in 

forma pauperis “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.” Id. § 1915(g). Thomas has three strikes under the 

PLRA. See Thomas v. Bush, No. 06-5015, 2006 U.S. App. 

LEXIS 22767, at 1–2 (D.C. Cir. Sept. 6, 2006). We therefore

issued an order requiring Thomas to show cause within thirty

days “why he should not be required to pay the full appellate 

filing fee before the court will consider his appeal.” When 

Thomas failed to respond, we dismissed the case for lack of 

prosecution. See D.C. Circuit Rule 38 (providing that the 

court may impose “[s]anctions” such as “dismissal for failure 

to prosecute”). 

Subsequently, Thomas filed two motions that we have 

construed as requests for reconsideration of our dismissal of 

his appeal. See Thomas v. Holder, No. 12-5228 (D.C. Cir. 
4

Apr. 15, 2013). In these filings, he claimed that he had been 

“in the hospital for [a] mental health crisis” and had been put

on “psychotropic medication.” He also appeared to contend 

that his inability to pay the required filing fee had prevented 

him from pursuing his appeal, asserting that he had “no way 

to send a forma pauperis to the court to pay for the filing fee.”

In response to these filings, we appointed amicus counsel 

“to present arguments in favor of appellant’s position” and 

ordered both amicus and the government to brief “whether the 

‘three-strikes provision’ of the [PLRA] unconstitutionally 

denies indigent prisoners access to the courts,” as well as any 

other issues they saw fit to address. Id. They have ably 

performed that task.

II.

Amicus and the government dispute several issues, 

among them whether Thomas would have standing to press 

the claims he raised in his appeal were we to reinstate it, and 

whether depriving him of the ability to proceed in forma 

pauperis would violate the Due Process or Equal Protection 

Clauses of the Constitution. But we have no need to consider

these questions because we agree with the government that 

there is an independent reason to deny Thomas’s motion for 

reconsideration: his underlying claims are wholly without 

merit.

We begin with the principles—or more accurately, the 

lack of principles—that govern this court’s disposition of 

motions for reconsideration. No Federal or Circuit Rule 

expressly gives movants like Thomas any particular 

entitlement to have their appeals reinstated. Although D.C. 

Circuit Rule 27(e)(2) provides that a party “adversely affected

by an order of the clerk disposing of a [procedural] motion 

may move for reconsideration thereof within 10 days,” it says 
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nothing about the circumstances in which such a motion will 

be granted. According to the government, the situation we 

face here is analogous to that confronting a district court 

considering a motion for relief from judgment pursuant to 

Federal Rule of Civil Procedure 60(b). In that context, it is 

well-established that movants must show that their underlying 

claims have at least some merit. They need not meet a 

particularly “high bar” to satisfy this threshold requirement, 

but they must provide at least “a hint of a suggestion” that 

they might prevail. Marino v. DEA, 685 F.3d 1076, 1080 

(D.C. Cir. 2012) (internal quotation marks omitted). This is so

even if the claims were not originally resolved on the merits

but were instead dismissed for failure to prosecute, as they 

were here. In Lepkowsi v. Department of the Treasury, 804 

F.2d 1310 (D.C. Cir. 1986), for example, the district court had 

dismissed the case after the plaintiff failed to respond to the 

defendant’s motion to dismiss, and then later denied the 

plaintiff’s Rule 60(b) motion, which had argued that this 

failure should be deemed excusable neglect. Id. at 1313. We 

affirmed, holding in part that “motions for relief under Rule 

60(b) are not to be granted unless the movant can demonstrate 

a meritorious claim or defense; we cannot escape the fact that 

the complaint and the proposed opposition were insufficient 

as a matter of law.” Id. at 1314; see also id. at 1321 

(Robinson, J., concurring) (parting ways with the majority as 

to whether there had been excusable neglect, but agreeing that 

denial should be affirmed because the claim “ha[d] little or no 

chance of ultimately surviving”). Likewise, in Murray v. 

District of Columbia, 52 F.3d 353 (D.C. Cir. 1995), the 

district court had dismissed the case after the plaintiffs failed 

to oppose a motion to dismiss, then denied their motion for 

reconsideration. Id. at 355. Affirming, we concluded that we 

had no need to consider the plaintiffs’ argument that their 

attorneys never received notice of the motion to dismiss, as

plaintiffs had failed to satisfy the “threshold requirement” of 
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showing that there was some “reason to believe that vacating 

the judgment will not be an empty exercise or futile gesture.” 

Id.; see also, e.g., Norman v. United States, 467 F.3d 773, 775

(D.C. Cir. 2006) (affirming denial of reconsideration of 

dismissal for failure to prosecute because there was no 

“underlying meritorious claim”) (internal quotation marks 

omitted).

We believe the same prerequisite should operate in this 

case. The requirement that parties seeking Rule 60(b) relief 

show some prospect of succeeding on the merits flows from 

the basic principle that courts should revive previouslydismissed claims only if they have some reason to believe that 

doing so will not ultimately waste judicial resources. See

Murray, 52 F.3d at 355. This principle holds true here: 

reviving Thomas’s appeal will constitute an “empty exercise 

or futile gesture,” id., unless Thomas has some possibility of 

prevailing. 

Indeed, we see two especially good reasons to condition

the grant of Thomas’s motion for reconsideration on his 

demonstrating a chance of succeeding on the merits. First, 

Thomas claims that his appeal should be reinstated because 

the PLRA’s three-strikes provision is unconstitutional as 

applied to him. For this court to reach out and decide this 

difficult and important question simply to reinstate a pointless 

appeal would violate the norm of constitutional avoidance to 

which we generally adhere. See Kalka v. Hawk, 215 F.3d 90, 

97 (D.C. Cir. 2000) (“Federal courts should not decide 

constitutional questions unless it is necessary to do so.”). 

Second, the PLRA provides that a court “shall dismiss” an 

IFP litigant’s case if the “appeal . . . is frivolous or malicious 

. . . [or] fails to state a claim on which relief may be granted.” 

28 U.S.C. § 1915(e)(2). Thus, even were we to grant Thomas 

IFP status and reinstate his appeal, we would then have to
7

promptly dismiss the case if his claims lack merit. What could

be a more “futile gesture” than reinstating an appeal only to 

then immediately dismiss it?

Amicus concedes that we must deny the motion for 

reconsideration if Thomas’s underlying claims lack merit, but 

insists that his claims actually have merit. We disagree.

Recall that Thomas seeks to compel the Attorney General 

to reclassify marijuana from Schedule I to Schedule V, 

arguing primarily that the CSA requires such action because 

of the drug’s accepted medical uses. Significantly, however,

he seeks such relief by writ of mandamus, “a drastic remedy” 

reserved for “extraordinary situations.” In re Papandreou, 

139 F.3d 247, 250 (D.C. Cir. 1998) (internal quotation marks

omitted). Mandamus may be granted only if “(1) the plaintiff 

has a clear right to relief; (2) the defendant has a clear duty to 

act; and (3) there is no other adequate remedy available to the 

plaintiff.” Council of & for the Blind of Delaware County 

Valley, Inc. v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983) 

(en banc). Mandamus petitioners can satisfy neither of the 

first two requirements if the act they seek to compel is 

discretionary, as government officials have no clear duty to 

perform such acts and petitioners have no clear right to 

compel them to do so. See Heckler v. Ringer, 466 U.S. 602, 

616–17 (1984). Here, as the district court explained, the 

Attorney General has at least some discretion in determining

whether and how to classify marijuana. Although, as amicus 

emphasizes, the statute does provide that the Attorney 

General “shall” ensure that the provisions of the CSA are 

applied to the substances as categorized, it also provides that 

the Attorney General “may” decide whether to transfer a 

particular substance from one classification to another—

precisely the relief Thomas seeks. See 21 U.S.C. § 811.

Indeed, confirming that the Attorney General could not 
8

possibly have a clear duty to act as Thomas demands, this 

court held a little more than a year ago that the agency to 

which the Attorney General has delegated his CSA 

reclassification authority engaged in no abuse of discretion 

when it refused to reclassify marijuana as appropriate for

medical use. See American for Safe Access v. DEA, 706 F.3d 

438, 449–52 (D.C. Cir. 2013). To the extent Thomas also 

contends that mandamus is warranted because the Attorney 

General has, in violation of the Eighth Amendment, acted 

with “deliberate indifference” to Thomas’s suffering, see 

Estelle v. Gamble, 429 U.S. 97, 104 (1976), this claim also 

necessarily fails. If the Attorney General could properly 

conclude that marijuana is not appropriate for medical use, he 

certainly has no clear duty to see that it is provided to Thomas

specifically. 

Because Thomas has failed to provide even a “hint of a 

suggestion” that he might succeed, Marino, 685 F.3d at 1080, 

we see no reason to reinstate his appeal. Accordingly, his 

motion for reconsideration is denied.

So ordered.
TATEL, Circuit Judge, concurring: Having written the 

court’s opinion, I obviously agree that we have no need to 

assess the constitutionality of the Prison Litigation Reform 

Act’s “three-strikes” provision. But because at our direction 

court-appointed amicus and the government have fully briefed 

that issue, and because this court, though regularly applying 

the three-strikes provision, has yet to fully examine its 

constitutionality, I write separately to explain my own doubts 

on that question.

A bit of background is in order. When Congress enacted 

the Prison Litigation Reform Act (PLRA) in 1996, it vastly 

changed the scope of in forma pauperis (IFP) status for both 

state and federal prisoners seeking to bring claims in federal 

court. Pursuant to section 1915(b), prisoners granted leave to 

proceed IFP are, unlike non-prisoner IFP litigants, still 

generally required to pay filing fees. The statute, however, 

allows them to pay the fees in installments over time—

potentially over a very long period of time. See 28 U.S.C. 

§ 1915(b)(1)–(2). And for prisoners unable to pay even these

partial installments, the statute includes a “safety valve”

provision: “In no event shall a prisoner be prohibited from 

bringing a civil action or appealing a civil or criminal 

judgment for the reason that the prisoner has no assets and no 

means by which to pay the initial partial fee.” Id.

§ 1915(b)(4). 

The PLRA’s three-strikes provision, section 1915(g), 

imposes more onerous burdens on those prisoners who have 

“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.” Id. § 1915(g). Unless such prisoners file a 

habeas petition attacking the fact or duration of their 

confinement—which is not a “civil action” to which the 

PLRA applies, see Blair-Bey v. Quick, 151 F.3d 1036, 1039–
2

42 (D.C. Cir. 1998)—or allege that they are in “imminent 

danger of serious physical injury,” they are denied IFP status 

altogether. 28 U.S.C. § 1915(g). The statute contains no safety 

valve for such prisoners.

The three-strikes provision implicates two interrelated 

lines of constitutional decisions. In the first, the Supreme 

Court has held that filing and similar fees must be waived for 

indigent litigants who raise certain types of claims. In the 

foundational case of Griffin v. Illinois, 351 U.S. 12 (1956), a 

four-Justice plurality held that a state violated both due 

process and equal protection by requiring indigent convicted 

defendants to pay a fee for the transcripts needed to appeal 

their convictions. See id. at 15, 18–19 (plurality opinion).

Because criminal defendants have no constitutional right to 

appeal their convictions in the first place, the decision appears 

to have been grounded primarily in equal protection

principles: if a state affords some defendants a right to appeal

it must afford all defendants that same right. See M.L.B. v. 

S.L.J., 519 U.S. 102, 111, 120 (1996) (“‘[M]ost decisions in 

this area,’ we have recognized, ‘rest on an equal protection 

framework,’ . . . for . . . due process does not independently 

require that the State provide a right to appeal.” (internal 

citations and alterations omitted) (quoting Bearden v. 

Georgia, 461 U.S. 660, 665 (1983)); see also Griffin, 351 

U.S. at 21–23 (Frankfurter, J., concurring in the judgment) 

(relying principally on the Equal Protection Clause). The 

Court has since extended these same principles to habeas 

petitions, see Smith v. Bennett, 365 U.S. 708, 709 (1961) (“to 

interpose any financial consideration between an indigent 

prisoner of the State and his exercise of a state right to sue for 

his liberty is to deny that prisoner the equal protection of the 

laws”), as well as to litigation involving certain fundamental 

interests, such as obtaining a divorce, see Boddie v. 

Connecticut, 401 U.S. 371, 374 (1971), or appealing the 
3

termination of parental rights, see M.L.B., 519 U.S. at 123. 

But the Court has declined to hold that the Constitution

requires the waiver of fees when indigent litigants seek to 

vindicate less fundamental interests, such as securing a 

discharge in bankruptcy, see United States v. Kras, 409 U.S. 

434, 445–46 (1973), or appealing a denial of welfare benefits, 

see Ortwein v. Schwab, 410 U.S. 656, 659–60 (1973) (per 

curiam). 

In the second line of cases, the Court has addressed the 

rights of prisoners to access the courts. Griffin and Smith—

which, again, struck down fees imposed on defendants 

challenging their convictions on direct appeal and habeas, 

respectively—are among the decisions that first established 

this right of access. See Lewis v. Casey, 518 U.S. 343, 354 

(1996). But fees are hardly the only barriers that stand 

between prisoners and the courts, and the Supreme Court has 

held that the right of access also includes the right to 

“adequate law libraries or adequate assistance from persons 

trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 

(1977). The Court has also made clear that prisoners’ right of

access extends beyond litigation attacking their convictions

and sentences. In Wolff v. McDonnell, 418 U.S. 539 (1974), 

the Court, perceiving in this regard “no reasonable distinction 

between” habeas and civil rights actions, id. at 580, held that 

the right encompasses prisoner litigation seeking to vindicate 

“basic constitutional rights,” id. at 579. Thus, although the 

Constitution “does not guarantee inmates the wherewithal to 

transform themselves into litigating engines capable of filing 

everything from shareholder derivative actions to slip-and-fall 

claims,” it does require that inmates be provided “[t]he tools” 

they “need in order to attack their sentences, directly or 

collaterally, and in order to challenge the conditions of their 

confinement.” Lewis, 518 U.S. at 355. Moreover, to trigger
4

the right of access, these claims must qualify as nonfrivolous. 

See id. at 352 n.2, 353 n.3. 

This court applied these constitutional principles in In re 

Green, 669 F.2d 779 (D.C. Cir. 1981), a case involving an 

indigent prisoner categorically denied IFP status. The plaintiff 

in Green had filed an incredible number of frivolous lawsuits, 

apparently trying to “deliberately flood[] the courts with his

complaints and petitions . . . in a vain attempt to gain his 

release from prison.” Id. at 782. The district court responded 

by issuing an order providing that the prisoner could file an 

action in this district only if he first paid all filing fees upfront 

and made a deposit of $100 as security for costs. Id. at 784. 

We vacated this order for two separate and independent 

reasons. First, in prospectively denying IFP status in all future 

cases, the order violated section 1915(a) of the IFP statute, 

which, we held, required that a district court exercise its 

discretion to determine whether to grant leave to proceed IFP 

in each case. Id. at 786. Second, and of more relevance here, 

we held that the order violated Green’s right of “meaningful 

access to the courts” because it “erect[ed] a potentially 

prohibitive financial barrier that encompasses all civil suits 

including habeas corpus petitions as well as those involving a 

fundamental constitutional right.” Id. We explained: “because 

Green cannot comply with the court’s order if he is without 

the necessary funds, the order effectively denies Green any 

and all access to the district court.” Id. And because “[e]ven a 

new, nonfrivolous claim submitted in good faith would not be 

heard if Green could not meet the filing fee and cash deposit,” 

the district court’s order was unconstitutional. Id.

Of course, nowhere in Green did we hold that any

requirement that a prisoner pay filing fees will necessarily be 

unconstitutional. Indeed, in Tucker v. Branker, 142 F.3d 1294 

(D.C. Cir. 1998), we distinguished Green and upheld the 
5

constitutionality of those PLRA provisions that require nonthree-strikes prisoners to generally pay some filing fees. 

Characterizing Green as a case with “extreme” facts, we 

explained that the fees the PLRA imposes on IFP prisoners 

are “much less burdensome.” Id. at 1299. In particular, we 

emphasized that because the statute allows payment by

installments, the required fees “never exact[] more than 20% 

of an indigent prisoner’s assets or income.” Id. at 1298. And 

given the safety valve provision, “even a destitute prisoner 

may file his suit if he wants to, without having to pay any 

initial fee.” Id. at 1297–98. 

I struggle to see how we could similarly distinguish 

Green in a case in which an indigent prisoner challenges the 

PLRA’s three-strikes provision. The conditions the threestrikes provision imposes mirror the “extreme” facts of the 

order struck down in Green. Like the order in Green, not only 

does the three-strikes provision require prisoners to pay all 

filing fees upfront, but it applies even to claims involving

fundamental constitutional rights. If prisoners have no ability 

to pay these fees, then, as in Green, they face a “total barrier” 

to bringing their claims—again, three-strikers enjoy no 

statutory safety valve. Green, 669 F.2d at 785. The financial 

conditions at issue in Green differ from those imposed by the 

three-strikes provision in only one respect: the Green

petitioner was also required to pay a $100 deposit. This

difference, however, is constitutionally insignificant. Green 

was deprived of his right to meaningful access to the courts 

not because of the additional $100 deposit, but simply 

because “if he [was] without the necessary funds,” whatever 

that sum might be, he would be completely unable to file a 

claim. Id. at 786. The same is true of prisoners subject to the 

PLRA’s three-strikes provision.
6

The government attempts to distinguish Green in several 

ways. First, it points out that “Green predates the passage of 

the PLRA by approximately fifteen years.” Appellees’ Br. 43. 

But clearly, the fact that a statute postdates a constitutional 

decision cannot somehow render that statute constitutional. 

Otherwise, freedom of choice might have been constitutional

just because it emerged following Brown v. Board of 

Education, 347 U.S. 483 (1954). But see Green v. County 

School Board of New Kent County, 391 U.S. 430 (1968). 

The government further contends that the three-strikes 

provision, unlike the In re Green order, “only blocks access to 

the court . . . without prepayment of fees for claims not 

brought by prisoners in imminent danger of serious bodily 

injury.” Appellees’ Br. 43. To be sure, the three-strikes 

provision’s imminent danger exception may permit prisoners 

to bring some of the claims they have a constitutional right to

bring. But what about prisoners advancing constitutional 

claims that involve no imminent danger of serious bodily 

injury, such as free speech, religious liberty, or right to refuse 

medical treatment claims? The right to meaningful access to 

the courts extends as well to these sorts of claims that seek to 

vindicate “fundamental constitutional rights.” Lewis, 518 U.S. 

at 351 (internal quotation marks omitted); Wolff, 418 U.S. at 

579. The fatal flaw in the Green order was that it would have 

prevented the prisoner from filing claims that he had a 

constitutional right to access the courts in order to file. See

Green, 669 F.2d at 786. The three-strikes provision suffers 

from the very same deficiency. 

The government also repeatedly asserts that IFP status is 

a “privilege” and not a “right.” E.g., Appellees’ Br. 25. As 

support for this proposition, it relies primarily on In re 

Sindram, 498 U.S. 177 (1991). In that case, the Supreme 

Court, reasoning that it has “a duty to deny in forma pauperis
7

status to those individuals who have abused the system,” 

ordered that an especially abusive litigant be denied IFP status 

in “all future petitions for extraordinary relief.” Id. at 180. As 

we have since held, Sindram and cases like it overruled

Green’s statutory holding that section 1915(a) prohibits a 

court from imposing “prospective denials of IFP status.” Hurt 

v. SSA, 544 F.3d 308, 310 (D.C. Cir. 2008). But the Supreme

Court’s order in Sindram, like other orders the Court imposed 

in similar cases, see In re Anderson, 511 U.S. 364, 365 

(1994), was limited, applying only to requests for 

extraordinary relief from the Court itself, thus closing just one 

of the litigant’s potential avenues of access to that or any 

court. Sindram therefore has little bearing on Green’s separate 

constitutional holding, which remains binding in this Circuit. 

See Aamer v. Obama, 742 F.3d 1023, 1033 (D.C. Cir. 2014)

(“[A]lternative grounds for a decision are nonetheless 

precedential.”). The same goes for our own decisions denying 

litigants leave to proceed IFP in circumstances that did not 

require us to consider whether denial would prevent a 

prisoner from raising a nonfrivolous constitutional claim. See 

Mitchell v. Federal Bureau of Prisons, 587 F.3d 415, 417 

(D.C. Cir. 2009) (denying application to proceed IFP of

prisoner who complained of improper notation in 

administrative files and made vague claims regarding need for 

medical treatment); Hurt, 544 F.3d at 310 (prospectively 

denying “non-incarcerated litigant[]” privilege of proceeding

IFP); Butler v. U.S. Department of Justice, 492 F.3d 440, 

445–47 (D.C. Cir. 2007) (denying prisoner leave to proceed 

IFP in advancing a Freedom of Information Act claim). Thus, 

although IFP status may well be a “privilege” for most 

litigants raising most types of claims, the Supreme Court has 

unequivocally held that waiver of filing fees is in some cases 

constitutionally required, see, e.g., Smith, 365 U.S. at 712; 

Griffin, 351 U.S. at 18–19, and our decision in Green makes 

clear that prisoners have a right to a reduction in fees if 
8

necessary to enable them to vindicate fundamental 

constitutional rights, see Green, 669 F.2d at 786.

Consistent with the foregoing, several Courts of Appeals 

have left open the possibility that a prisoner might bring a 

successful as-applied challenge to the PLRA’s three-strikes 

provision. For example, although the Eleventh Circuit 

rejected a claim that the three-strikes provision impeded the 

right to access the courts, it did so only after observing that 

the plaintiff’s “well-pled allegations . . . plainly advance no 

cognizable fundamental interest.” Rivera v. Allin, 144 F.3d 

719, 724 (11th Cir. 1998). Likewise, the Ninth Circuit held 

that “where a fundamental right is not at stake, § 1915(g) 

does not infringe upon an inmate’s meaningful access to the 

courts.” Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 

1999) (emphasis added); accord White v. State of Colorado, 

157 F.3d 1226, 1233–34 (10th Cir. 1998); Carson v. Johnson, 

112 F.3d 818, 821 (5th Cir. 1997).

To be sure, other Circuits have held as a categorical 

matter that the three-strikes provision does not infringe 

prisoners’ right of access to the courts. These decisions rest

on two primary rationales, both of which are foreclosed in this 

Circuit by Green and are in any event unconvincing.

First, some courts have reasoned that a three-strikes 

litigant may simply find a way to pay the required fees. As the 

Seventh Circuit put it, prisoners may pay “using assets on 

hand,” “[s]ave up in advance,” “[b]orrow the filing fee from 

friends or relatives,” or “[b]orrow the filing fee from a 

lawyer.” Lewis v. Sullivan, 279 F.3d 526, 530 (7th Cir. 2002); 

accord Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir. 

2001). These ways of cobbling together filing fees were, 

however, presumably equally available to the petitioner in 

Green, and we nonetheless held that the financial burden 
9

imposed by the district court’s order—again, essentially the 

same as that imposed by the three-strikes provision—

effectively deprived him of access to the courts. See Green, 

669 F.2d at 786. In so doing, we adhered to the logic the 

Supreme Court has applied in holding that even minimal fees 

must sometimes be waived, logic that I believe better reflects 

the reality prisoners face. As the Court explained in Smith,

“While $4 is, as the State says, an ‘extremely nominal’ sum, if 

one does not have it and is unable to get it the fee might as 

well be $400.” 365 U.S. at 712.

Second, other courts have held that the three-strikes

provision does not deny indigent prisoners access to the 

courts because such prisoners may simply “[s]ue in state 

rather than federal court.” Lewis, 279 F.3d at 530; accord

Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 (4th Cir. 2001) 

(en banc); Wilson v. Yaklich, 148 F.3d 596, 605 (6th Cir. 

1998). But prisoners may be unable to bring some claims in 

state court. See Richard S. Arnold, The Power of State Courts 

to Enjoin Federal Officers, 73 Yale L.J. 1385 (1964) 

(discussing limits on state courts’ ability to entertain claims 

against federal officials). And in any event, the plaintiff in 

Green was also capable of filing claims in state court, as he in 

fact had. See Green, 669 F.2d at 781. Although we never said

so expressly, our conclusion that the Green petitioner had 

been deprived of his right to meaningful access likely 

reflected, in part, our application of the equal protection 

principles that underlie that right: Green was entitled to 

litigate his claims in this court because other litigants may do 

so. Such reasoning would echo the Supreme Court’s rejection 

of the argument that a state could impose filing fees on 

indigent habeas petitioners because they could simply seek 

the writ in a federal court. “But even though this be true,” the 

Court declared, “it would ill-behoove this great State [(Iowa)], 

whose devotion to the equality of rights is indelibly stamped 
10

upon its history, to say to its indigent prisoners seeking to 

redress what they believe to be the State’s wrongs: ‘Go to the 

federal court.’” Smith, 365 U.S. at 713.

For these reasons, I have grave doubts that the PLRA’s 

three-strikes provision may be constitutionally applied to 

indigent prisoners who seek access to the courts in order to

bring claims involving fundamental constitutional rights. In 

the appropriate case, this court should address this unsettled 

issue. In so suggesting, I fully understand that Congress was 

responding to a very real problem when it enacted the PLRA. 

It is undoubtedly true that much prisoner litigation is not only 

frivolous and abusive, but also imposes substantial costs on 

the federal courts. That said, it is also undoubtedly true that 

some prisoners have legitimate constitutional claims. See, 

e.g., Brown v. Plata, 131 S. Ct. 1910 (2011) (upholding order 

requiring California to reduce prison overcrowding that had 

produced pervasive constitutional violations). So while 

faithfully honoring Congress’s goal of reducing abusive 

litigation, the federal courts remain constitutionally obligated 

to hear such claims, for “[o]nly by zealously guarding the 

rights of the most humble, the most unorthodox and the most 

despised among us can freedom flourish and endure in our 

land.” Bridges v. Wixon, 326 U.S. 135, 166 (1945).