# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2014 Decided May 6, 2014

No. 12

- 5228

K EITH T HOMAS

, A PPELLANT

v.

E RIC H. H OLDER

, J R

., U.S. A TTORNEY G ENERAL REAL PARTY

IN INTEREST AND A NTHONY H EDG P ETH

, W ARDEN S ALINAS V ALLEY S TATE P RISON

, A PPELLEES

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 curi a e 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.2

Before: T ATEL

, S RINIVASAN

, and W ILKINS

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge T ATEL

.

Concurring opinion filed by Circuit Judge T ATEL

.

T ATEL

, 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 , contendi ng 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 Cali fornia. 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 fo r “physical dependence or psychological dependence

. ” 21 U.S.C. § 812(b)(5)

. By
contrast, Schedule I

— marijuana ’ s current classif i cation

— 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. ” I d. § 812(b)(1). Alleging that he suffered from arthritis and osteoarthritis, Thomas claimed that marijuana’s3

Schedule I classification prevented him from obtaining th e drug in order to treat his pain. Th e 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 ha s no clear right to relief and mandamus therefore is not an appropriate remedy.” Thomas v. Holder

, No. 12

- 0459, slip o p. 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 pr oceed 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
fa ils 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)

. W e 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 c ourt 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 reconsid eration of our dismissal of his appeal. See Thomas v. Holder , No. 12

- 5228 (D.C. Cir.4

A pr. 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 appeare d 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 c ou nsel “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.

A micus and the government dispute several issues, among them whether Thomas would have standing to press the claims he raised in hi s 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 underl ying 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 appeal s reinstated. Although D.C

. Circuit Rule 27(e)(2) provides that a party “ adversely affect ed by an order of the clerk disposing of a [procedural] motion may move for reconsideration thereof within 10 da ys,” it says5

nothing about the circumstances in which such a motion will be gr anted

. According to the government

, the situation we
face here is analogous to that confront ing 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 or iginally resolved on the merits
but were instead dismissed for failu re to prosecute , as they
were here

. I n 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
af

firmed, 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 m atter 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.

Dist rict 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 co nsider the plaintiffs’ argument that their
attorneys never received notice of the motion to dismiss

, as plaintiffs had failed to satisfy the “threshold requirement” of6

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 q uotation 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 court s should revive previously

dismissed claim s only if they have some reason to believe that doing so will not ultimately waste judicial resources. See Murray , 52 F.3d at 355. Th is principle holds true here : reviving Thomas’s appeal will constitute an “empty exercise
or futi le 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 un constitutional as applied to him

. For this court to reach out and decide this difficult and important question simply to reinstate a pointless appeal would v iolate 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 c ourt “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 reinsta te his appeal, we would then have to7

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 t hat 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 Th omas 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 De laware County
Valle y, Inc. v. Regan , 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en banc). Mandamus pe titioners can satisfy n either of the first two requirements if the act they s eek to compel is discretionary, as government official s have no clear duty to perform such act s 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

. Alth ough, as amicus emphasizes, t he 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 particu lar substance from one classification to another

— precisely the relief Thomas seeks

. See 21 U.S.C. § 811.

I ndeed, confirming that the Attorney Gen eral could not8

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 , 7 0 6 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 Eight h Amendment, acted with “deliberate indifference” to Thomas’s suffering, see Estelle v. Gamble , 429 U.S. 97, 104 (1976), this claim also necessarily fail s . I f the Attorney General could properly conclude that marijuana is not appropriate for m edical use, he certainly has no clear duty to see that it is provided to Thomas specifically

.

Becau se 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.T ATEL

, 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 L itigation 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 sec tion 1915(b), prisoner s granted leave to proceed IFP are , unlike non

- prisoner IFP litigants, still generall y 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 tim e

. See 28 U.S.C. § 1915(b)(1)

– (2). And for prisoner s unable to pay even the se partial installment s , 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 burden s 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 t he grounds that it is frivolous, malicious, or fails to state a claim upo n 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 implicate s 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 rais e certain type s 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 t he transcript s needed to appeal
their conviction s

. See id. at 15 , 18

– 19 (plurality opinion)

. Because criminal defendants have no constitutional right to appeal their conviction s in the first place, the decision appears
to have been grounded primarily in equal protection princi ples: if a state affords some d efendants 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, 7 09 (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 obtain ing a divorce, see Boddie v. Connecticut , 401 U.S. 371, 374 (1971)

, or appealing the3

termination of parental rights, see M.L.B. , 519 U.S. at 123.
But the Court has declined to hold that the C onstitution requires the waiver of fees when indigent litigant s seek to
vindicate less fun damental 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 c ases, the Court has addressed the right s of prisoners to access the courts

. Griffin and Smith

—

w hich, again, struck down fees imposed on defendants challenging their convictions on direct appeal and habeas, respectively

— are among the decisions that first est ablished this right of access. See Lewis v. Casey , 518 U.S. 343, 354 (1996). But fees are hardly the only barriers that stand
be tween 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 fr om 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 conviction s and sentence s . 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,” i d. 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 req uire that inmates b e 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, t o trigger4

the right of access, these claims must qualify a s 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 in volving 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 issu ing an o rder 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.

W e 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 “mea ningful

access t o 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. A nd 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 ne cessarily be
unconstitutional. I ndeed, in Tucker v. Branker , 142 F.3d 1294 (D.C. Cir. 1998)

, we distinguished Green and upheld the5

constitutionality of those PLRA provisions that requir e non

three

- strike s prisoners to generally pay some filing fee s

. Characterizing Green as a case with “extreme” fac ts, we explained that the fees the PLRA imposes on IFP prisone rs

are “much less burdensome.” Id. at 1299. In particular, we emphasized that because the statute a llows payment by
installments

, the required fees “never exact[] more than 20% of an indigent prisoner’s assets or income.” Id. at 12 98. 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 challenge s the
PLRA’ s three

- strikes provision. The conditions the three

strikes provision imposes mirror t he “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
fu ndamental constitutional rights

. If prisoners have no ability to pay these fees, then, as in Green , they face a “total barrier”

to bring ing 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

t hree

- strikes provision in only one respect: the Green petitioner was also required to pay a $100 deposi t. T his difference, however, is constitutionally insignificant

. Green was deprived of his right to meaningful access to the courts not because of the add itional $100 deposit , but simply because “if he [was] without the necessary funds,” whatever
that sum might be, he would be comp letely unable to file a
claim. Id. at 786. The same is true of prisoner s subject to the
PLRA’s three

- strikes provision.6

The governme nt 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 c learly

, the fact that a statute postdates a constitutional
de cision can not somehow render that statute constitutional.
O therwise, 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 b y 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 priso ners 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? T he 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
prevent ed 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, r easoning that it has “ a duty to deny in forma pauperis7

status to those individuals who have abus ed the system,”
ordered that an especially abusive litigant be denied IFP status in “all future petitions for extraordinary reli ef

. ” 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 (19 94) , was limited, applying only to requests for extraordinary relief from the Court itself

, thus clos ing 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 bindi ng 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) ( deny ing 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 proceed ing IFP); Butler v. U.S. Depar tment of Justice , 492 F.3d 440,
445

– 47 (D.C. Cir. 2007) ( d eny ing prisoner leave to proceed IFP in advancing a Free dom of Information Act claim ). Thus, although IF P 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 prisoner s have a right to a reduction in fees if8

necessary to enable t hem to vindicate fundamental
constitut ion al rights, s ee Green , 669 F.2d at 786.

Consistent with the for e going, several C ourts of A ppeals have left open the possibility that a prisoner might bring a
successful as

- a pplied 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 (11 th 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 me aningful acces s to the
courts.” Rodriguez v. Cook , 169 F.3d 1176 , 1180 (9 th Cir. 1999) (emphasis added); accord White v. State of Colorado

, 157 F.3d 1226, 1233

– 34 (10 th Cir. 1998); Carson v. Johnson

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

To be sure, other Circuits have held as a categorical

matter t hat 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
f riends 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 (8 th Cir. 2001)

. These ways of cobbling together filing fees were

, however, presumably eq ually available to the petitioner in
Green , and w e nonetheless held that the financial burden9

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 fac e

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

- Akbar v. McKelvie , 239 F.3d 307, 318 (4 th Cir. 2001) (en banc) ; Wilson v. Yaklich , 148 F.3d 596, 605 (6 th Cir. 1998)

. But prisoners may be unable to bring some claims in

state court. S ee 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 , o ur 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 fee s on indigent habeas petition er s 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 stamped10

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 reason s , I have grave doubts that the PLRA’s
three

- strikes provision may be constitutionally applied to indigent prisoners who seek a ccess 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 w hen 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, i t is also undoubtedly true that some prisoners have l egitimate 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 C on g r ess’ s goal of reducing ab usive
liti gation, 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.” Br idges v. Wixon , 326 U.S. 135, 166 (1945)

.