                               Daniel C. MEDBERRY, Plaintiff-Appellant,

                                                      v.

Joe BUTLER, in his official and individual capacity, J. Johnson, in his official and individual capacity, et
al., Defendants-Appellees.

                                                No. 97-4516.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               Aug. 23, 1999.

Appeal from the United States District Court for the Southern District of Florida.(No. 97-319-CV-UUB),
Ursula Ungaro-Benages, Judge.

Before ANDERSON, Chief Judge, MARCUS, Circuit Judge, and MILLS*, Senior District Judge.

        RICHARD MILLS, Senior District Judge:

        This appeal raises two issues, one of which is an issue of first impression in this Circuit.

        The first issue raised is whether the "three strikes" in forma pauperis provision of 28 U.S.C. §

1915(g) violates the United States Constitution's guarantee against ex post facto laws.

        The second issue raised—the one which is of first impression—is what showing must a prisoner with

three strikes against him make in order to be allowed to proceed in forma pauperis because he is in imminent

danger of serious physical injury.

        We affirm.

                                            I. BACKGROUND

        Daniel C. Medberry is an inmate in the Florida Department of Corrections who is serving a 27 year

prison sentence for sexual battery. Upon arriving at the Everglades Correctional Institute on August 22, 1996,

Medberry informed the prison officials of his concern of being placed in the prison's general population.

Specifically, Medberry advised the prison officials that because his offense of conviction was considered to




   *
    Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting by
designation.
be "repugnant" by the other inmates, he feared for his physical safety if he were to be placed in the prison's

general population.

        Nevertheless, the prison officials placed Medberry in the prison's general population, and as predicted

by Medberry, he was verbally abused and harassed by the other inmates. The inmate's verbal assaults against

Medberry, however, became physical on December 6, 1996, when members of the "Latin Kings" gang

physically assaulted him and when the gang's leader threatened him with a "blade." Medberry reported the

incident to the prison officials, and that same day, the prison officials placed him in administrative

confinement.

        After exhausting all of his administrative remedies, Medberry filed suit on February 6, 1997, in the

United States District Court for the Southern District of Florida pursuant to 42 U.S.C. § 1983 against four

prison officials, Joe Butler, J. Johnson, R. Ashley, and Carl Berry, in their individual and official capacities,

alleging that these four individuals acted with deliberate indifference for his safety in violation of the Eighth

Amendment by placing him in the prison's general population. Medberry also alleged that he had been in

administrative confinement since December 6, 1996. Along with his Complaint, Medberry filed a motion

to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

        On February 10, 1997, United States Magistrate Judge Charlene H. Sorrentino entered a report and

recommendation recommending that Medberry's Complaint be dismissed pursuant to 28 U.S.C. § 1915(g)

because he had filed three or more suits which had been dismissed as frivolous, malicious, or failed to state

a cause of action upon which relief may be granted and because he had failed to allege that he was under

imminent danger of serious physical injury. Medberry filed objections to Magistrate Judge Sorrentino's report

and recommendation, and on March 11, 1997, United States District Judge Ursula Ungaro-Benages denied

his objections and adopted the report and recommendation. On March 25, 1998, Medberry filed a timely

notice of appeal and a motion to proceed in forma pauperis on appeal. On April 22, 1998, the district court

allowed Medberry's motion to proceed in forma pauperis on appeal. See Choyce v. Dominguez, 160 F.3d



                                                       2
1068, 1071 (5th Cir.1998)(noting the seeming incongruity in the district court's denying a prisoner's motion

to proceed in forma pauperis with the district court because he was not in imminent danger of serious

physical injury but allowing him to proceed in forma pauperis on appeal).

                                               II. ANALYSIS

        Title 28 U.S.C. § 1915(g) provides:

        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.

Id. Thus, if a prisoner has had three or more cases dismissed for one of these three reasons, a court must

dismiss the prisoner's case.

         Medberry does not deny that he has had three or more law suits dismissed as being frivolous,

malicious, or for failing to state a cause of action upon which relief may be granted. Rather, Medberry argues

that the cases which were dismissed should not be considered in determining whether he may proceed in

forma pauperis pursuant to 28 U.S.C. § 1915(g) because all of those previous suits were dismissed prior to

the effective date1 of the Prison Litigation Reform Act ("PLRA") which imposed the three strikes rule. As

such, Medberry asserts that considering those cases would violate the United States Constitution's guarantee

against ex post facto laws.

        However, this Court has recently held that the three strikes in forma pauperis provision of 28 U.S.C.

§ 1915(g) passes constitutional muster. Rivera v. Allin, 144 F.3d 719, 721 (11th Cir.1998). Specifically, this

Court has held that § 1915(g)'s language makes it clear that the three strikes rule applies to claims dismissed

prior to the effective date of the PLRA. Id. at 728-30 (citing cases). Accordingly, Medberry's ex post facto

argument is without merit. See also Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir.1998)(holding that §

1915(g) does not violate the Constitution's Ex Post Facto Clause).



   1
    The Prison Litigation Reform Act became effective on April 26, 1996.

                                                      3
         Alternatively, Medberry argues that he falls within § 1915(g)'s exception to the three strikes rule

because he is under imminent danger of serious physical injury. Medberry asserts that in his Complaint, he

alleged that he feared for his life if he were forced to go onto the compound at the Everglades Correctional

Institution. Therefore, Medberry claims that he has properly alleged an ongoing danger which satisfies §

1915(g)'s exception to the three strikes rule.

        Exactly what a prisoner with three strikes must show in order to be allowed to proceed in forma

pauperis because he is in imminent danger of serious physical injury is an issue of first impression in this

Circuit. The three circuit courts which have addressed this issue have reached three different conclusions.

In Gibbs v. Roman, 116 F.3d 83 (3rd Cir.1997), the Third Circuit held "that the proper focus when examining

an inmate's complaint filed pursuant to § 1915(g) must be the imminent danger faced by the inmate at the time

of the alleged incident, and not at the time the complaint was filed." Id. at 86.

        On the other hand, the Eighth Circuit held in Ashley v. Dilworth, 147 F.3d 715 (8th Cir.1998), that

"an otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at the time of

filing. Allegations that the prisoner has faced imminent danger in the past are insufficient to trigger this

exception to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan." Id. at 717

(emphasis in original). Finally, the Fifth Circuit has held that

        [t]he plain language of the statute leads us to conclude that a prisoner with three strikes is entitled to
        proceed with his action or appeal only if he is in imminent danger at the time that he seeks to file his
        suit in district court or seeks to proceed with his appeal or files a motion to proceed IFP.

Baños v. O'Guin, 144 F.3d 883, 884 (5th Cir.1998).

         We agree with both the Fifth and the Eighth Circuits that the clear language of § 1915(g) establishes

that the Third Circuit's approach is incorrect. Congress' use of the present tense in § 1915(g) confirms that

a prisoner's allegation that he faced imminent danger sometime in the past is an insufficient basis to allow him

to proceed in forma pauperis pursuant to the imminent danger exception to the statute. See Ashley, 147 F.3d

at 717 (holding that "the statute's use of the present tense verbs 'bring' and 'is' demonstrates, an otherwise



                                                       4
ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at the time of filing. Allegations

that the prisoner has faced imminent danger in the past are insufficient to trigger this exception to § 1915(g)

and authorize the prisoner to pay the filing fee on the installment plan."); see also Baños, 144 F.3d at 885

(holding that "the language of § 1915(g), by using the present tense, clearly refers to the time when the action

or appeal is filed or the motion for IFP status is made.").

         However, we need not decide whether the Fifth or the Eighth Circuit approach is the proper standard

to adopt because, in the instant case, Medberry has failed to meet either standard. The only allegations which

Medberry makes in his Complaint that he was in imminent danger of serious physical injury were the alleged

events which formed the basis for his Complaint. This threat, however, had ceased prior to the filing of his

Complaint, and nothing therein may properly be construed as constituting an allegation that he was in

imminent danger of serious physical injury at the time he filed his Complaint or that he was in jeopardy of

any ongoing danger. As such, Medberry may not proceed in forma pauperis because he has "three strikes"

against him under § 1915(g) and because he has failed to qualify under the statute's imminent danger

exception.2

         Finally, contrary to Medberry's argument, the district court did not err by failing to give him the

opportunity to amend his Complaint prior to dismissing it with prejudice. Shortly after his Complaint was

filed the Florida Department of Corrections transferred him to another facility. Therefore, allowing Medberry

to amend his Complaint would have been futile because he could not have alleged that he was in imminent

danger of serious physical injury by being placed in the general population at the Everglades Correctional

Institute. Burger King Corp. v. C.R. Weaver, 169 F.3d 1310, 1319 (11th Cir.1999)(noting that futility is an

adequate basis for denying leave to amend).

                                              III. CONCLUSION



   2
    We note that 28 U.S.C. § 1915(g) does not deny prisoners the right of access to the courts; it merely
requires them to pay the filing fee immediately and in full rather than on an installment plan. Rivera, 144
F.3d at 723-24; Ashley, 147 F.3d at 717; Baños, 144 F.3d at 885 n. 1.

                                                        5
       Therefore, the district court's decision to deny Medberry in forma pauperis status pursuant to 28

U.S.C. § 1915(g) is AFFIRMED.




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