                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2001

Abdul-Akbar v. McKelvie
Precedential or Non-Precedential:

Docket 98-7307




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Filed January 29, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7307

DEBRO S. ABDUL-AKBAR,

        Appellant

v.

RODERICK R. McKELVIE, Honorable; JAMES COLLINS;
JAMES D. TYNDALL; EARL MESSICK; TURRIT, Capt.;
MELVIN HENESSEY; MICHAEL DELOY;
JOE JOHNSON, Lt.; STEPHEN H. SMYK

On Appeal from the United States District Court
for the District for Delaware
(D.C. Civ. No. 98-CV-00137)
District Judge: Honorable Roderick R. McKelvie

Submitted Under Third Circuit LAR 34.1(a)
February 18, 2000

Before: BECKER, Chief Judge, ALITO and ALDISERT,
Circuit Judges.

Argued November 1, 2000

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,
SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL,
BARRY, AMBRO, FUENTES and ALDISER T,
Circuit Judges.

(Filed: January 29, 2001)
Jerold S. Solovy, Esq.
Barry Levenstam, Esq. (argued)
Paul M. Smith, Esq.
Jessie K. Liu, Esq.
JENNER & BLOCK
One IBM Plaza
Chicago, IL 60611

ATTORNEYS FOR APPELLANT

Carl Schnee
United States Attorney
Keith M. Rosen (argued)
Assistant United States Attorney
Chase Manhattan Centre
Suite 1100
1201 Market Street
P.O. Box 2046
Wilmington, DE 19899

 ATTORNEYS FOR APPELLEE,
Hon. Roderick R. McKelvie

Loren C. Meyers
Chief of Appeals Division
Robert F. Phillips (argued)
Deputy Attorney General
Stuart B. Drowos
Deputy Attorney General
Delaware Department of Justice
820 North French Street
Wilmington, DE 19801

 ATTORNEYS FOR APPELLEES,
James Collins; James Tyndall;
Earl Messick; Turrit, Capt.; Melvin
Henessey; Michael Deloy; Joe
Johnson, Lt.; Stephen Smyk

                       2
        D. Michael Fisher
        Attorney General
        John G. Knorr, III
        Chief Deputy Attorney General
        Chief, Appellate Litigation Section
        Calvin R. Coons
        Senior Deputy Attorney General
        Office of the Attorney General of
        Pennsylvania
        15th Floor, Strawberry Square
        Harrisburg, PA 17120

         ATTORNEYS FOR
        COMMONWEALTH OF
        PENNSYLVANIA, Amicus Curiae

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The primary issue for decision is whether we should
overrule the holding of Gibbs v. Roman, 116 F.3d 83 (3d
Cir. 1997), interpreting 28 U.S.C. S 1915(g). Under this
statute, popularly known as the "three strikes" rule, a
prisoner may not file a new action or appeal in forma
pauperis ("I.F.P.") if, on thr ee or more prior occasions while
incarcerated or detained, the prisoner has br ought a federal
action or appeal that was dismissed on the gr ounds that it
was frivolous, malicious or fails to state a claim, unless the
prisoner "is under imminent danger of serious physical
injury." We held in Gibbs that"imminent danger" is
measured at the time of the alleged incident, not at the
time the complaint is filed. 116 F.3d at 86. Three of our
sister courts of appeals have since rejected our teachings in
Gibbs, holding instead that the court should assess
"imminent danger" as of the time the prisoner's complaint
is filed and that a prisoner's allegation that he faced danger
in the past is insufficient to allow him to pr oceed I.F.P.
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999);
Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998);
Banos v. O'Guin, 144 F.3d 883, 884-885 (5th Cir. 1998). We
now abandon the interpretation set forth in Gibbs and

                               3
adopt that of our sister courts of appeals. W e hold also that
S 1915(g), as so interpreted, is constitutional.

I.

Appellant Debro Siddiq Abdul-Akbar was most r ecently
incarcerated by the Delaware Department of Corrections
from June 10, 1994 through May 15, 1999 on state charges
including robbery, conspiracy, assault and shoplifting.
During the time material to Appellant's underlying
proposed Complaint based on 42 U.S.C. S 1983, he was
incarcerated at the Sussex Correctional Institute in
Georgetown, Delaware. On May 17, 1999, Appellant
reported to a community confinement center , and on May
27, 1999, he was released from the custody of the
Department of Corrections.

Appellant has filed at least 180 civil rights or habeas
corpus claims. Abdul-Akbar v. Dept. of Corr ections, 910 F.
Supp. 986, 998 (D. Del. 1995). In Abdul-Akbar v. Watson,
901 F.2d 329 (3d Cir. 1990), this court reviewed a district
court order barring Appellant from filing any further S 1983
claims I.F.P. and held that a district court may enter an
injunction precluding a prisoner fromfiling any S1983
claims without leave of court and without making certain
good faith certifications. 901 F.2d at 333. We stated that
Abdul-Akbar's "history of repetitious and frivolous filings
indicates a clear intent to abuse the courts and the I.F.P.
process." Id. at 334. An injunction subsequently was
entered by the district court. Abdul-Akbar v. Dept. of
Corrections, 910 F. Supp. at 1009.

On February 10, 1998, Appellant filed a motion for leave
to file a S 1983 Complaint, a proposed Complaint and a
motion to proceed I.F.P. The pr oposed Complaint alleged
that on or about January 9, 1998, prison officials
arbitrarily sprayed Appellant with pepper gas and r efused
to provide him with medical treatment even though they
knew that he suffers from asthma. Appellant also claimed
that certain prison officials violated his civil rights by
belonging to a racist organization, that one defendant failed
to investigate properly the pepper spray incident, and that
the district court judge violated his Sixth Amendment right

                               4
of access to the courts by preventing his complaints from
being heard.

The district court denied the motion to proceed I.F.P.,
reasoning that (1) Appellant had brought actions that the
court had dismissed as frivolous on more than three prior
occasions, and (2) he did not claim to be in imminent
danger of serious physical injury.

The district court had jurisdiction over this case under
28 U.S.C. S 1331. We have jurisdiction because an order
denying leave to proceed I.F.P. is a final, collateral order
appealable under 28 U.S.C. S 1291. The appeal was timely
filed. This court reviews de novo issues of statutory
interpretation, Pennsylvania Mines Corp. v. Holland, 197
F.3d 114, 119 n.2 (3d Cir. 1999), and the constitutionality
of a statute, DeSousa v. Reno, 190 F .3d 175, 180 (3d Cir.
1999).

II.

The discretionary power to permit indigent plaintiffs to
proceed without first paying a filing fee was initially codified
in the federal statutes in 1892. See Act of July 20, 1892,
ch. 209 1-5, 27 Stat. 252. Congress enacted the I.F.P.
statute, currently codified at 28 U.S.C.S 1915, "to ensure
that administrative court costs and filing fees, both of
which must be paid by everyone else who files a lawsuit,
would not prevent indigent persons from pursuing
meaningful litigation." Deutsch v. United States, 67 F.3d
1080, 1084 (3d Cir. 1995) (citing Denton v. Hernandez, 504
U.S. 25, 31 (1992)). Congress was also awar e of the
potential for abuse, and it included a subsection allowing
for dismissal of frivolous or malicious actions. Denton, 504
U.S. at 31.

Congress subsequently enacted the Prison Litigation
Reform Act ("PLRA" or "Act"), Pub. L. No. 104-134, 110
Stat. 1321 (1996), largely in response to concerns about the
heavy volume of frivolous prisoner litigation in the federal
courts. See 141 Cong. Rec. S14408-01, S14413 (daily ed.
Sept. 27, 1995) (statement of Sen. Dole) (explaining that the
number of prisoner suits filed "has grown astronomically--
from 6,600 in 1975 to more than 39,000 in 1994"). In

                               5
enacting the PLRA, Congress concluded that the large
number of meritless prisoner claims was caused by the fact
that prisoners easily obtained I.F.P. status and hence were
not subject to the same economic disincentives tofiling
meritless cases that face other civil litigants. See 141 Cong.
Rec. S7498-01, S7526 (daily ed. May 25, 1995) (statement
of Sen. Kyl) ("Filing frivolous civil rights lawsuits has
become a recreational activity for long-term residents of
prisons."); 141 Cong. Rec. S7498-01, S7524 (daily ed. May
25, 1995) (statement of Sen. Dole) ("[P]risoners will now
`litigate at the drop of a hat,' simply because they have little
to lose and everything to gain."). To curb this trend, the
PLRA instituted a number of reforms in the handling of
prisoner litigation.

Among other things, the PLRA amended the I.F .P. statute
as it applies to prisoners. Under the statute as amended, a
prisoner who is allowed to proceed I.F.P . is not excused
from paying filing fees, but is only excused from pre-paying
them in full if they meet certain criteria. The PLRA now
requires prisoners who qualify for I.F .P. status to pay by
way of an initial partial fee, followed by installment
payments until the entire fee is paid. 28 U.S.C. S 1915(b)(1).
Congress also added S 1915(g), the "three strikes rule,"
which limits a prisoner's ability to proceed I.F.P. if the
prisoner abuses the judicial system by filing frivolous
actions. Prisoners may avoid the limitation in this
provision, however, if they are under "imminent danger of
serious physical injury."

This appeal requires us to decide when the existence of
"imminent danger" is to be assessed; specifically, whether it
is assessed as of the time the complaint is filed, or at some
time in the past, even though that danger no longer exists
when the complaint is filed.

Today we abandon the rule announced in Gibbs that
"imminent danger" is assessed at the time of the alleged
incident. We adopt, instead, the construction set forth by
the Fifth, Eighth and Eleventh Circuit Courts of Appeals,
that a prisoner may invoke the "imminent danger"
exception only to seek relief from a danger which is
"imminent" at the time the complaint is filed. We conclude
that this interpretation is consistent with the plain

                                6
language of S 1915(g), with congressional intent and with
the legislative purpose of the PLRA as a whole.

III.

This is a case of statutory construction, and we begin our
analysis with the language of S 1915(g):

        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 mor e 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.

A.

We now apply settled precepts of statutory construction
and take as our beginning point a recognition that from the
earliest times, we have adopted what is called the American
Plain Meaning Rule exemplified in Caminetti v. United
States, 242 U.S. 470, 485 (1917) (internal citations
omitted):

        It is elementary that the meaning of the statute must,
        in the first instance, be sought in the language in
        which the act is framed, and if that is plain, and if the
        law is within the constitutional authority of the law-
        making body which passed it, the sole function of the
        courts is to enforce it according to its terms. Where the
        language is plain and admits of no more than one
        meaning the duty of interpretation does not arise and
        the rules which are to aid doubtful meanings need no
        discussion.

In 1993, the Court made a modern statement of the plain
meaning rule: "Our task is to give effect to the will of
Congress, and where its will has been expr essed in
reasonably plain terms, that language must ordinarily be
regarded as conclusive." Negonsett v. Samuels, 507 U.S. 99,
104 (1993). If the language of the statute is plain, the sole

                                7
function of the court is to enforce the statute according to
its terms. United States v. Ron Pair Enters., Inc., 489 U.S.
235, 241 (1989). The plain meaning is conclusive, therefore,
"except in the `rare cases [in which] the literal application
of a statute will produce a result demonstrably at odds with
the intentions of its drafters.' " Id. at 242 (quoting Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564 (1982)).

B.

We now apply the ordinary meaning of the words chosen
by Congress in drafting S 1915(g). The phrase "in no event"
simply means "may not." This court has pr eviously held
that the word "bring" in this context plainly refers to the
time when the civil action is initiated. Gibbs v. Ryan, 160
F.3d 160, 162 (3d Cir. 1998). Putting the phrases together,
the first clause of S 1915(g) obviously means "a prisoner
may not file a new civil complaint." In the or dinary sense of
the words, this clause refers temporally to the time the new
complaint is filed. The clause "unless he is in imminent
danger of serious physical injury" is an exception to the
preclusive effect of the statute. But the exception is cast in
the present tense, not in the past tense, and the word "is"
in the exception refers back to the same point in time as
the first clause, i.e., the time of filing. The statute
contemplates that the "imminent danger" will exist
contemporaneously with the bringing of the action.
Someone whose danger has passed cannot reasonably be
described as someone who "is" in danger , nor can that past
danger reasonably be described as "imminent." The court
so held in Ashley v. Dilworth, 147 F .3d 715, 717 (8th Cir.
1998):

        As the statute's use of the present tense verbs`bring'
        and `is' demonstrates, 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 ar e
        insufficient to trigger this exception to S 1915(g) and
        authorize the prisoner to pay the filing fee on the
        installment plan.

See also Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.
1999) ("Congress' use of the present tense in S 1915(g)

                               8
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 . . . ."); Banos v.
O'Guin, 144 F.3d 883, 885 (5th Cir . 1998) ("[T]he language
of S 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."). Taking both clauses together, the statute
plainly means that a prisoner is not permitted to file his
complaint unless he is, at that time, under imminent
danger. Viewed from the Plain Meaning Rule, we interpret
"is under imminent danger" to relate to the time when "a
prisoner bring[s] a civil action."

IV.

Reinforcing the interpretation of the statute by
application of the Plain Meaning Rule is an analysis of
language found in other portions of the PLRA. For example,
another section of the Act, S 1915(b)(4), pr ovides:

        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 filing fee.

28 U.S.C. S 1915(b)(4) (emphasis added). As in subsection
(g), this provision begins with the exhortation"in no event
shall," and, as in subsection (g), it describes a necessary
condition by using the present tense of the operative verb.
Section 1915(b)(4) plainly means that the courts may not
prohibit a prisoner from filing a new complaint for the
reason that he does not possess any assets at the time of
filing. The temporal reference point for the verb "has" is the
time of filing, the time at which the fee is due.

Other provisions support this construction by focusing
on the time of filing. Section 1997e(a) of T itle 42, amended
by the PLRA, requires that the plaintif f exhaust
administrative remedies, but only if the plaintiff is a
prisoner at the time of filing. Greig v. Goord, 169 F.3d 165,
167 (2d Cir. 1999). Similarly, the applicability of the
personal injury requirement of 42 U.S.C.S 1997e(e) turns
on the plaintiff 's status as a prisoner , not at the time of the
incident, but when the lawsuit is filed. Harris v. Garner,

                                9
216 F.3d 970, 974-975 (11th Cir. 2000). Finally, the need
for the district court to screen a complaint in a civil action
filed by a prisoner, as requir ed by 28 U.S.C. S 1915A, looks
to the plaintiff 's status when the case isfiled. Johnson v.
Hill, 965 F. Supp. 1487, 1488 n.2 (E.D. V a. 1997).

V.

Appellant argues that requiring pr oof of imminent danger
as of the time of filing is inconsistent with Congress' intent.
Having applied the American Plain Meaning Rule and
having determined that there is no ambiguity, we are not
required to answer this contention of the Appellant.
Nevertheless, we perceive the congressional intent as clear
when we examine the purpose of the entire PLRA.

As noted above, Congress enacted the PLRA in or der to
limit the filing of frivolous and vexatious prisoner lawsuits.
To accomplish this, Congress curtailed the ability of
prisoners to take advantage of the privilege offiling I.F.P.
The "three strikes" rule added by the PLRA supplied a
powerful economic incentive not to file frivolous lawsuits or
appeals. In stark terms, it declared that the I.F.P. privilege
will not be available to prisoners who have, on thr ee
occasions, abused the system by filing frivolous or
malicious lawsuits or appeals, no matter how meritorious
subsequent claims may be.

It is important to note that S 1915(g) does not block a
prisoner's access to the federal courts. It only denies the
prisoner the privilege of filing before he has acquired the
necessary filing fee. Appellant argues that a prisoner
subject to the "three strikes" rule, but who does not
establish "imminent danger," could for ever lose his ability
to bring his suit as a practical matter because of the
difficulties of obtaining the money, the application of the
statute of limitations, or the possible loss of necessary
evidence. This argument attempts to pr ove too much. It
overlooks the fact that prisoners may seek r elief in state
court, where limitations on filing I.F .P. may not be as strict.
Potentially negative consequences in federal courts, as
distinguished from state courts, ar e precisely the
consequences intended by Congress. The outcome predicted

                               10
by Appellant is, for better or for worse, exactly the result
the PLRA intends.

Recognizing that it could take prisoners a significant
period of time to obtain the filing fee in some cases,
Congress created a limited exception aimed at preventing
future harms, and did so through the use of the word
"imminent." "Imminent" dangers ar e those dangers which
are about to occur at any moment or are impending. See
WEBSTER'S II NEW RIVERSIDE UNIVERSITYDICTIONARY 611 (1984).
By using the term "imminent," Congr ess indicated that it
wanted to include a safety valve for the "thr ee strikes" rule
to prevent impending harms, not those har ms that had
already occurred. The imminent danger exception allows
the district court to permit an otherwise barr ed prisoner to
file a complaint I.F.P. if the prisoner could be subject to
serious physical injury and does not then have the r equisite
filing fee.

In contrast, under the Gibbs construction, the prisoner
need only show that he was subject to imminent danger at
the time of the alleged incident. By definition, an imminent
threat of serious physical injury always exists in the
moments before any such injury is inflicted. Thus, under
the Gibbs approach, any time that an otherwise disqualified
prisoner alleges that any threat of physical injury occurred
at any time, that prisoner automatically qualifies for the
imminent danger exception. The Gibbs interpr etation of the
imminent danger exception thereby swallows the rule. Like
every other court of appeals that has consider ed this issue,
we refuse to conclude that with one hand Congr ess
intended to enact a statutory rule that would r educe the
huge volume of prisoner litigation, but, with the other
hand, it engrafted an open-ended exception that would
eviscerate the rule.1
_________________________________________________________________

1. The dissent devotes much effort to asserting that, even under our time
of filing construction, Appellant's S 1983 Complaint satisfied the terms
of
the imminent danger exception because the Complaint, under the
dissent's liberal construction, alleged an ongoing risk of serious
physical
injury. Importantly, at no point in the present litigation did Appellant
seek to rely on an ongoing danger theory, even through the able counsel
appointed by this court for purposes of this appeal. Inasmuch as the

                               11
This is not to suggest that we would criticize any statute
or judicially-created legal precept that would permit any
prisoner, even a frequent filer, to file such a complaint I.F.P.
Such a notion is entirely compatible with the precept that
for any injury, there should be a remedy. But we do not
write in the abstract here, nor do we write on a clean slate.
Congress has deliberately decided to legislate on this
subject by proclaiming, as public policy, a determination to
reduce prisoner litigation in the federal courts. As citizens,
we may disagree with the congressional wisdom, but as
judges, knowing the clearly stated legislative purpose, we
may not disembowel the legislative act. Federal courts,
unlike state common law King's Bench courts, do not have
unlimited power and authority. We are limited to that which
has been granted by Congress. What Congr ess gives it may
also take away. The ability to proceed I.F .P. is not a
constitutional right. Congress granted the right to proceed
I.F.P. in 1892, and it has the power to limit this statutorily
created right. Here it has taken away our ability as judges
_________________________________________________________________

dissent uses our silence with respect to an issue not raised by the
parties to argue that our construction of the imminent danger exception
eliminates a prisoner's ability to satisfy the imminent danger exception
by alleging an ongoing risk of serious physical injury, we respond only
by stressing that we by no means intend such a result.

At all events, we doubt whether the allegations in Appellant's S 1983
Complaint suffice to establish such an ongoing danger. Even under a
liberal reading of Appellant's pleading, it is evident that Appellant's
allegations center on an incident that occurr ed on or about January 9,
1998, when a prison official allegedly sprayed Appellant with pepper gas.
App. 9-10. Appellant does not identify any further incidents occurring
after that date. Moreover, although Appellant alleges that he experienced
several other acts of physical harassment by dif ferent prison officials,
these events not only all pre-date the January 9th incident, but also
appear entirely unconnected to it, and thus undermine the dissent's
claim that the danger to Appellant was ongoing. Finally, while Appellant
does allege that he complained for a year about the use of pepper gas
(App. 10), and that prison officials engaged in"continuing harassment,
ploits [sic] to hurt or kill [him], and other forms of retaliation," (App.
8,
9) such generalized allegations strike us as insufficient to connect the
separate incidents mentioned above into a patter n of threats of serious
physical injury that are ongoing.

                               12
to grant I.F.P. status to a "thr ee strikes" prisoner, no matter
how meritorious his or her subsequent claims may be,
unless the prisoner "is under imminent danger of serious
physical injury" when he or she "bring[s] a civil action."
Congress has held trump here, and it has dealt a hand. As
judges we must play it.

VI.

Appellant also mounts the argument that S 1915(g), as we
interpret it, would offend the equal pr otection guarantee
implied in the Fifth Amendment by improperly burdening a
prisoner's "fundamental right of access" to the courts.2
_________________________________________________________________

2. In his reply brief, Appellant contends for the first time that this
interpretation of the statute runs counter to the protections assured by
the Eighth Amendment. Appellant argues that"[t]he right to be free from
serious physical injury while in prison is sur ely as fundamental as the
right to divorce," citing as authority Boddie v. Connecticut, 401 U.S. 371
(1971), and that, therefore, he is entitled to a waiver of filing fees as
a
matter of law. We will not discuss the merits of this contention because
Abdul-Akbar waived this argument by not raising it in his opening brief.
Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000). "[The argument in
the reply brief comes] too late . . . . Rule 28(a)(5) of the Federal Rules
of
Appellate Procedure and our Local Rule 28.1(a) require appellants to set
forth the issues raised on appeal and to present an argument in support
of those issues in their opening brief." Id. ; see also Kost v.
Kozakiewicz,
1 F.3d 176, 182 (3d Cir. 1993) ("It is well settled that if an appellant
fails
to comply with these requirements on a particular issue, the appellant
normally has abandoned and waived that issue on appeal and it need
not be addressed by the court of appeals.").

The dissent contends that Abdul-Akbar's waiver should be ignored
because an assessment of the importance of a claimed constitutional
interest is an implicit part of any equal pr otection or due process
inquiry
determining the level of scrutiny that will apply to a challenged
government action. The dissent agrees with Abdul-Akbar that the right
to be free from serious physical injury is just as weighty as the right to
a divorce at issue in Boddie, and would hold that such a right represents
a fundamental interest for Boddie purposes. Furthermore, the dissent
also points to several other underlying rights, including the First
Amendment right to free exercise of r eligion, that are not at issue in
the
instant case, but that the dissent would also pr esumably treat as
fundamental interests under Boddie. What the dissent fails to recognize,
13
Moreover, he argues that we must apply strict scrutiny in
considering this contention and that, alternatively, even
under rational basis scrutiny, the statute, as we interpret
it, does not pass constitutional muster because it is not
rationally related to a legitimate gover nmental interest.

A.

Although the Fifth Amendment contains no Equal
Protection Clause, "the Fifth Amendment's Due Process
Clause prohibits the Federal Government from engaging in
discrimination that is `so unjustifiable as to be violative of
due process.' " Schlesinger v. Ballar d, 419 U.S. 498, 500 n.3
(1975) (quoting Bolling v. Sharpe, 347 U.S. 497, 499
(1954)). Accordingly, the Court has construed the Fifth
Amendment to contain an equal protection guarantee. See,
e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616
(1991). Fifth Amendment equal protection claims are
examined under the same principles that apply to such
claims under the Fourteenth Amendment. Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995)
(citations omitted). Statutes that substantially bur den a
fundamental right or target a suspect class must be
reviewed under "strict scrutiny;" that is, to survive, they
must be narrowly tailored to serve a compelling
governmental interest. Plyler v. Doe , 457 U.S. 202, 216-217
(1982). Conversely, if a statute neither bur dens a
fundamental right nor targets a suspect class, it does not
violate the Fourteenth Amendment's Equal Protection
Clause, as incorporated through the Fifth Amendment's
Due Process Clause, so long as it bears a rational
relationship to some legitimate end. Romer v. Evans, 517
U.S. 620, 631 (1996).
_________________________________________________________________

however, is that the importance of the underlying right is largely
immaterial to the question whether that right is a fundamental interest
for Boddie purposes. As we discuss infra in Part VI.B., an underlying
constitutional entitlement rises to the level of a Boddie fundamental
interest only when the government blocks the sole legal means for
safeguarding that entitlement, and not simply because the interest itself
is a weighty one.

                               14
This requires us first to determine whether Appellant is
a member of a suspect class or whether a fundamental
right is implicated. Neither prisoners nor indigents are
suspect classes. See, e.g., Pryor v. Brennan, 914 F.2d 921,
923 (7th Cir. 1990) (noting that prisoners do not constitute
a suspect class); Harris v. McRae, 448 U.S 297, 323 (1980)
(noting that poverty is not a suspect classification). Nor has
Appellant argued before us that indigent prisoners,
specifically, frequent filer indigent prisoners, are a suspect
class. We then must inquire whether the"time of filing"
construction infringes upon one of Appellant's fundamental
rights.

B.

Appellant contends that the "time of filing" interpretation
adopted by our sister courts of appeals and adopted by us
today unconstitutionally burdens his fundamental right of
access to the courts by requiring him to pay fees. But the
right of access to the courts is not absolute. United States
v. Kras, 409 U.S. 434, 450 (1972). Courts pr esented with
this issue have consistently held that merely r equiring a
prisoner to pay filing fees in a civil case does not, standing
alone, violate that prisoner's right of meaningful access to
the courts. See, e.g., Rivera v. Allin, 144 F.3d 719, 724
(11th Cir. 1998); Roller v. Gunn, 107 F.3d 227, 231 (4th Cir.
1997). We agree. Section 1915(g) does not prevent a
prisoner with "three strikes" fromfiling a civil action; he or
she is simply unable to enjoy the benefits of pr oceeding
I.F.P. and must pay the fees at the time of filing instead of
under the installment plan. And, given the right of
Congress to limit the power of federal courts, it cannot be
said that limiting the temporal aspect of the exception to
the "three strikes" rule infringes upon Appellant's right of
access to the courts.

The Court has recognized only a "narr ow category of civil
cases in which the State must provide access to its judicial
processes without regard to a party's ability to pay court
fees." M.L.B. v. S.L.J., 519 U.S. 102, 113 (1996). An
unconditional right of access exists for civil cases only
when denial of a judicial forum would implicate a
fundamental human interest -- such as the ter mination of

                               15
parental rights or the ability to obtain a divorce. Id. at 116-
117; Boddie v. Connecticut, 401 U.S. 371, 382-383 (1971).
Examples of interests that the Court has held do not rise to
this level are bankruptcy filings, Kras , 409 U.S. at 444-445,
and welfare benefit determinations, Ortwein v. Schwab, 410
U.S. 656, 659 (1973).

In the seminal case of Boddie, the Court emphasized that
the deprivation of due process emanated fr om "the State's
refusal to admit these appellants to its courts, the sole
means in Connecticut for obtaining a divorce, [and that this]
must be regarded as the equivalent of denying them an
opportunity to be heard upon their claimed right to a
dissolution of their marriages." 401 U.S. at 380-381
(emphasis added). Unlike the parties in Boddie , Appellant is
not precluded from filing his S 1983 Complaint in another
court system that does not have a "three strikes" provision.
State courts have concurrent jurisdiction overS 1983 cases.
Howlett v. Rose, 496 U.S. 356, 358 (1990). Appellant can
seek I.F.P. status under Delawar e law because it does not
have a parallel "three strikes" rule. See generally 10 Del. C.
S 8802 (I.F.P. statute). A state court provides a fully
adequate forum for the vindication of civil rights claims.
See generally Tafflin v. Levitt, 493 U.S. 455, 458 (1990)
("[S]tate courts have inherent authority, and are thus
presumptively competent, to adjudicate claims arising
under the laws of the United States."). Because neither
Delaware substantive law nor Delaware court rules
prevented him, as an indigent prison litigant, from
pursuing his claims, we do not agree that strict scrutiny is
the appropriate test. We therefor e examine S 1915(g) using
rational basis review as have our sister courts of appeals.
See, e.g., Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir.
1999); White v. Colorado, 157 F.3d 1226, 1234 (10th Cir.
1998), cert. denied, 526 U.S. 1008 (1999); Wilson v. Yaklich,
148 F.3d 596, 604 (6th Cir. 1998), cert. denied, 525 U.S.
1139 (1999); Rivera, 144 F.3d at 727; Carson v. Johnson,
112 F.3d 818, 822 (5th Cir. 1997).

C.

We are satisfied that our interpr etation of S 1915(g)
passes the rational basis test. Appellant focuses on the

                               16
right of access to the courts, arguing thatS 1915(g)'s
purpose and effect is to prevent him and other frequent filer
prisoner indigents from filing civil lawsuits. In addressing
this contention, we must first examine the legislative
purpose.

As discussed above, the legislation was aimed at the
skyrocketing numbers of claims filed by prisoners -- many
of which are emotionally driven but legally deficient -- and
the corresponding burden those filings have placed on the
federal courts. Congress sought to put in place economic
incentives that would prompt prisoners to "stop and think"
before filing a complaint.3 The "three strikes" rule thus
serves as a rational deterrent mechanism, for cing potential
prisoner litigants to examine whether their filings have any
merit before they are filed, and disqualifying frequent filers
who have failed in the past to carefully evaluate their
claims prior to filing.
_________________________________________________________________

3. Congress's rationale for placing the fee requirements on prisoners is
captured in the statements of Senator Jon Kyl:

           Section 2 will require prisoners to pay a very small share of the
           large burden they place on the Federal judicial system by paying a
           small filing fee upon commencement of lawsuits. In doing so, the
           provision will deter frivolous inmate lawsuits. The modest
monetary
           outlay will force prisoners to think twice about the case and not
just
           file reflexively. Prisoners will have to make the same decision
that
           law-abiding Americans must make: Is the lawsuit worth the price?
           Criminals should not be given a special privilege that other
           Americans do not have . . . . The volume of prisoner litigation
           represents a large burden on the judicial system, which is already
           overburdened by increases in nonprisoner litigation. Yet prisoners
           have very little incentive not to file nonmeritorious lawsuits.
Unlike
        other prospective litigants who seek poor person status, prisoners
        have all the necessities of life supplied, including the materials
        required to bring their lawsuits. For a prisoner who qualifies for
        poor person status, there is no cost to bring a suit and,
therefore,
        no incentive to limit suits to cases that have some chance of
        success. The filing fee is small enough not to deter a prisoner
with
        a meritorious claim, yet large enough to deter frivolous claims
and
        multiple filings.

141 CONG. REC. S7498-01, S7526 (daily ed. May 25, 1995) (statement of
Sen. Kyl) (citation omitted).

                                17
Deterring frivolous prisoner filings in the federal courts
falls within the realm of Congress' legitimate interests, and
the interpretation we adopt today is rationally related to the
achievement of that interest. "[T]he right of access to federal
courts is not a free floating right, but rather is subject to
Congress' Article III power to set limits on federal
legislation." Roller, 107 F.3d at 231. Although it had the
power to do so, Congress did not repeal any particular
cause-of-action available to prisoners. Rather , Congress
changed only the rules regarding I.F .P. status. Under
S 1915(g), prisoners are still able tofile civil actions; they
are merely prohibited from enjoying I.F.P. status. Lyon v.
Krol, 127 F.3d 763, 765 (8th Cir . 1997); Carson, 112 F.3d
at 821. Preventing frequent filers fr om obtaining fee waivers
is rationally related to the legitimate gover nment interest of
deterring frivolous lawsuits because "Congr ess is no more
compelled to guarantee free access to federal courts than it
is to provide unlimited access to them." Roller, 107 F.3d at
231. Although the dissent claims that the "thr ee strikes"
rule embodied in S 1915(g) is too blunt an instrument and
is insufficiently targeted to arrest frivolous filings, we have
always recognized that constitutional constraints "require[ ]
neither a perfect nor even best availablefit" between a
statute's goal and the means employed in that statute to
further that goal. United States v. Mariani, 212 F.3d 761,
774 (3d Cir. 2000) (en banc).

Congress included an exception to the "thr ee strikes" rule
for those cases in which it appears that judicial action is
needed as soon as possible to prevent serious physical
injuries from occurring in the meantime. Thus,S 1915(g)
rationally balances the economic deterrence rationale
behind the "three strikes" rule with the need for those
prisoners who remain in danger of futur e grievous harm to
be able to file immediately. Accordingly, we hold that our
interpretation of S 1915(g) does not violate equal protection
concepts embodied in the Fifth Amendment.

* * * * *

We have considered all contentions pr esented by the
parties and conclude that no further discussion is
necessary.

                               18
The judgment of the district court will be affir med.4
_________________________________________________________________

4. The court acknowledges with appreciation the able pro bono
representation of Appellant by the lawfirm of Jenner & Block.

                               19
MANSMANN, Circuit Judge, dissenting, with whom Judges
Sloviter, Nygaard and McKee join.

I.

Today the majority interprets and applies the "three
strikes" rule of the Prison Litigation Refor m Act of 1995
("PLRA"), 28 U.S.C. S 1915(g), in a manner destined to bar
the doors of our courts against a disfavored gr oup --
indigent prisoners who have resorted unsuccessfully to civil
litigation -- even with respect to meritorious litigation that
may be their sole means of vindicating a fundamental right.
Because I believe that this case falls within a statutory
exception, as properly interpreted in Gibbs,1 and that the
statute, as interpreted and applied by the majority,
substantially burdens fundamental rights without narrowly
serving a compelling governmental inter est, I respectfully
dissent.

In 1990 we struck down a District Court injunction
barring in forma pauperis ("IFP") suits by the same
Appellant before us today as violative of the constitutional
right of access to the courts, and we directed instead entry
of an injunction that would permit such suits subject to
certification and review calculated to test for frivolity. See
Abdul Akbar v. Watson, 901 F.2d 329 (3d Cir. 1990). While
not expressly repudiating our holding in Watson, the
majority nonetheless essentially holds that what the
District Court was then precluded from doing by the
Constitution it is now required to do by statute. Today's
holding therefore places us at odds with a well-established
line of cases exemplified by Watson.2
_________________________________________________________________

1. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).

2. In both Watson and our prior decision in In re Packer Avenue
Associates, 884 F.2d 745 (3d Cir. 1989), we adopted the approach of the
District of Columbia Circuit in the leading case of In re Green, 669 F.2d
779 (D.C. Cir. 1981). See also Procup v. Strickland, 792 F.2d 1069,1072
n.6 (11th Cir. 1986) (en banc) ("Several courts have held that a total ban
on all IFP filings by a particular litigant as a sanction for abuse is
impermissible.") (citing Green and cases from Second, Ninth and Tenth
Circuits); Joseph T. Lukens, The Prison Litigation Reform Act: Three
Strikes and You're Out of Court -- It May Be Effective, But Is It

                               20
This case unfortunately illustrates the maxim that bad
cases may sometimes make bad law. This Appellant has
clearly abused the IFP system, filing some 200 cases, most
without merit. The three strikes rule as interpreted by the
majority, however, will burden other would-be litigants who
have not filed 200 cases, and whose "strikes" were racked
up without any bad faith or abuse.3 It will, moreover, bar
potentially meritorious litigation at the filing stage, with no
opportunity for substantive review or appeal.

II.

The principal holding announced by the majority is not
very far-reaching. It rejects a statement in our earlier Gibbs
case to the effect that imminent danger is to be determined
as of the time of the incident complained of, and joins with
our sister courts of appeals that have held that danger
must exist at the time the Complaint or appeal isfiled. I
joined in, and continue to adhere to, the able opinion of
Judge Garth in Gibbs. In Gibbs we held that a prisoner who
alleged two prior attacks by inmates and death thr eats,
each related to his identification as a gover nment
_________________________________________________________________

Constitutional?, 70 Temp. L. Rev. 471, n. 90-91 (Summer 1997)
(providing extensive citations to circuit court cases requiring that
injunctions be narrowly tailored to pr eserve access for legitimate
claims).
The sole difference between the pr eclusive effect of injunctions held
impermissible in the cited cases and the statutory bar of section 1915(g)
is that the latter includes a narrow exception (extremely narrow, as
interpreted by the majority) which is patently insufficient to safeguard
the broad scope of rights jeopardized by the IFP ban. Cf. Procup, 792
F.2d at 1074 (Clark, J., concurring) (construing limitation of IFP for
abusive prisoner litigant to "claims alleging actual or threatened
physical
harm" to be "an unconstitutional denial of access").

3. Although dismissals for failure to state a claim do not necessarily
signify abuse, they nonetheless count as "strikes" for purposes of
section 1915(g). Moreover, the many procedural and substantive hurdles
erected in the path of civil rights claims against government actors might
easily trip up a pro se litigant with a bona fide claim. The majority's
repeated characterization of the statutory bar as applying only to
prisoners who "abuse" the judicial system byfiling frivolous actions is
therefore somewhat misleading.

                               21
informant, and who alleged that his "life[was] in constant
danger", provided sufficient allegations of "imminent
danger" to survive the "three strikes" rule. Although our
principal holding was that "a complaint alleging imminent
danger . . . must be credited as having satisfied the
threshold criterion of S 1915(g) unless[that] element is
challenged", we also stated that "the pr oper focus when
examining an inmate's complaint filed pursuant to
S 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." 116 F.3d at 86.

No clear intent may be discerned from section 1915(g)'s
use of the present tense ("unless the prisoner is under
imminent danger"), because the same subsection elsewhere
employs the present tense in refer ence to what are
expressly recognized as past events ("if the prisoner has
brought an action or appeal . . . that was dismissed on the
grounds that it is frivolous, malicious or fails to state a
claim . . ."). This erroneous combination of tenses renders
the statutory provision ambiguous, and I believe that such
ambiguity must be resolved in favor of pr eserving the right
of access to the courts for prisoners threatened with bodily
injury.

As the majority has acknowledged, the purpose of the
exception is to "prevent[ ] futur e harms." Supra at 11. This
purpose is best served by a liberal interpretation of the
exception, one which gives scope to -- and so facilitates --
the deterrent effect of the subsequent damages remedy
available under section 1983. See City of Riverside v.
Rivera, 477 U.S. 561, 575 (1986) (plurality) (stating that
"the damages a plaintiff recovers contribute significantly to
the deterrence of civil rights violations in the future"). Cf.
Gibbs (rejecting argument that "suit for damages rather
than injunctive relief . . . was not seeking to protect . . .
physical safety"). 116 F.3d at 85. Contrary to the majority's
assertion, the exception as interpreted by Gibbs does not
"eviscerate" the three strikes rule. A would-be litigant must
plead imminent danger of serious physical injury (rather
than a deprivation of procedural, associational, religious or
other rights), and the court must determine that such
danger is or was in fact present if such allegation is

                               22
controverted. Moreover, as discussed below, section
1915(g)'s potential encroachment into important
 665<!>constitutional rights also counsels for a br oad

interpretation of the exception. Finally, the importance of
presenting an appropriately lenient interpretation in this en
banc opinion -- which will guide the district courts in their
decisions on hundreds, if not thousands, of prisoner filings
-- is heightened by the preclusive natur e of section 1915(g).
That is, the denial of in forma pauperis status and resultant
dismissal of prisoner litigation made pursuant ther eto will
be effectively unreviewable, as a truly indigent plaintiff will
no more be able to afford the r equisite filing costs for
appeal of that dismissal than for the underlying action.

III.

While I disagree with the majority's rejection of the
standard enunciated in Gibbs for one which determines the
existence of imminent danger at the time the Complaint or
appeal is filed, it is the majority's application of that
standard to the facts of this case, and implicitly to those of
Gibbs, that I find considerably more tr oubling.

The majority appears simply to assume that its holding
that imminent danger must be assessed at the time offiling
is dispositive of this case, and that Appellant was not in
such danger. In so assuming, the majority seriously
undermines protection of physically endangered prisoners
by paying too little heed to ongoing threats.

The majority's lengthy explication of statutory tense
notwithstanding, an equally crucial question of
interpretation under section 1915(g) concer ns the meaning
of "imminent danger". The majority's definition of
"imminent" dangers as those "which ar e about to occur at
any moment or impending", supra at 11, is far too
restrictive. In a real-world prison setting, the timing of an
attack cannot be so neatly predicted. It may be that an
ongoing threat of danger looms over a prisoner for an
extended period. At any given moment, the har m might not
be "about to" occur; then again, it might. Such is the
nature of "danger". It involves risk, not certainty.

                                23
The phrase "imminent danger" is not defined in the
PLRA. It may be instructive, however, to consider the
definition accorded the same phrase in other contexts. For
example, under the Eighth Amendment prison authorities
must protect prisoners not only from curr ent threats, but
also from "sufficiently imminent dangers"; the courts have
defined that phrase as encompassing those dangers"likely
to cause harm in the `next week, month, or year.' " Horton
v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995) (quoting
Helling v. McKinney, 509 U.S. 25 (1993); Payne v. Collins,
986 F. Supp. 1036, 1052 (E.D. Tex. 1997) (observing that
this approach includes review of the actions taken to
alleviate the threat).4 In discussing "imminent harm" in the
preliminary injunction context, we have held that standard
met where the potential harm was not"uncertain or
speculative", but might be expected to occur before the
threat could otherwise be averted.5 In determining
standing, the courts have framed their inquiry into the
"immediate threat" as one encompassing consideration of
the likelihood of an ongoing danger, as evidenced by past
events. See, e.g., O'Shea v. Littleton , 414 U.S. 488, 496
(1974) ("past wrongs are evidence bearing on whether there
is a real and immediate threat of r epeated injury").

Indeed, this conception of imminent danger as
encompassing an ongoing threat has been explicitly
recognized by one of our sister circuits. In Ashley v.
Dilworth, 147 F.3d 715 (8th Cir. 1998), the Eighth Circuit
_________________________________________________________________

4. See also, e.g., Maze v. Hargett, 1998 WL 378369 *3 (Apr. 27, 1998
N.D. Miss.) (finding "sufficiently imminent danger of future physical
harm" during prisoner's "tenure" in light of continuing conditions).

5. BP Chemicals Ltd. v. Formosa Chemical & Fibre Corp., 229 F.3d 254,
263 (3d Cir. 2000) (citing Charles Alan W right, Arthur R. Miller, Mary
Kay Kane, Federal Practice and Procedur e S 2948.1 at 139 (2d ed. 1995)
as "explaining that imminence requires that the harm will occur before
a trial on the merits can be had"). Another statute similarly "defines the
threat of `imminent danger' as the existence of a condition . . . which
could `[r]easonably be expected to cause substantial harm . . . before
such condition . . . can be abated.' " Hodel v. Va. Surface Mining &
Reclamation Assn., 452 U.S. 264, 301 (1981), quoting the Surface
Mining Control and Reclamation Act, 30 U.S.C.S 1291(8) (1976 ed.,
Supp. III).

                               24
held that a prisoner placed in continuing pr oximity to
inmates on his "enemy alert list" and subject to prior
assaults "properly alleged an ongoing danger" and so "[met]
the imminent danger exception of section 1915(g)." 147
F.3d at 717.6

Appellant's litigious history may incline us to r ead his
Complaint with a certain degree of skepticism. Nonetheless,
our precedents require us to construe pleadings, and
especially pro se pleadings, liberally. See Gibbs, 116 F.3d at
86 (observing that "[u]nder our liberal pleading rules" all
allegations should be construed "in favor of the
complainant") (citations omitted). Reading the Complaint in
the light most favorable to Appellant, I find his claimed
predicament alarming.

Appellant, a black inmate, brought this action seeking,
inter alia, an injunction against white prison guar ds "from
continuing . . . plots to hurt or kill [him]". App. 8. The
guards in question are asserted to be racists who "don't
accept . . . Black people as human beings" and thus do not
respect rights of any black person. App. 13. Appellant is a
particular target of the guards' animus, as he asserts they
are engaged in a conspiracy to retaliate against Appellant
for filing complaints against them for past abuses. App. 9.

Guards have made a practice of using pepper gas
routinely to punish inmates for failing to obey orders or for
"saying something an officer don't like." App. 10. "[M]ajor
problems happen on the white [guards'] shifts, especially
Black inmate's [sic] getting sprayed arbitrarily with pepper
gas." App. 13. Although Appellant complained for over a
year about the abuse of pepper gas, no restraint was placed
on the use of pepper gas. App. 10, 11.

Defendants "know [Appellant has] asthma . .. and
they've seen [him] suffer whenever that pepper gas has
been sprayed." App. 12. The danger faced by Appellant was
not limited to attacks directed against him. Rather, the use
_________________________________________________________________

6. See also Choyce v. Dominguez, 160 F .3d 1068 (5th Cir. 1998)
(remanding for reconsideration of imminent danger determination where
prisoner alleged incident complained of "was only one episode in an
ongoing pattern of threats and violence" in retaliation for prior
litigation).

                               25
of pepper gas "effects [sic] every inmate . . . in the area".
For example, in December, 1997, Appellant was exposed to
pepper gas directed at other inmates and was taken to the
hospital with an asthma attack. App. 10-11.

In September or October of 1997, in a "deliberate attempt
to have [Appellant] hurt or killed", a guar d told an inmate
that Appellant had "snitched" on him and other inmates.
App. 12. Although Appellant feared for his life as a result of
this incident, his request for protective custody was not
honored. App. 12.

On January 8, 1998 Appellant was transferred to a cell
block with no window "for the express purpose's [sic] of
having [him] in an area where the[racist guards] could
harass, set up and try to kill [him]". The very next day, one
of the defendant guards, again in the pr esence of other
inmates, accused Appellant of informing, and proceeded to
spray him with an entire can of pepper gas, whereupon
Appellant collapsed with an asthma attack, "fighting for
breath on the floor" and the guard"left [him] on the floor to
die."

As far as the record reflects, none of the foregoing
conditions had been corrected at the time Appellant filed
his Complaint.7

In sum, Appellant alleges that at the time of the
Complaint (i) Appellant remained confined in an institution
controlled by guards who believed he did not have any
rights and who had a vendetta against him; (ii) the guards
made a practice of spraying inmates with pepper gas (to
which Appellant was acutely vulnerable) on slight
provocation, and prison officials placed no r estraint on that
practice; (iii) Appellant had been injured twice by pepper
gas within just the past 10 weeks prior to filing; 8 (iv) the
_________________________________________________________________

7. Although many of the foregoing allegations may strike the reader as
improbable, they are as yet uncontr overted, and I believe that we are
required to accept them as true for pr esent purposes. Cf. Gibbs, 116
F.3d at 86 (holding that a district court should accept the allegations in
the Complaint in determining imminent danger for IFP purposes,
pending the appearance of a defendant who may contr overt the
allegations).

8. Cf. Ashley, 147 F.3d at 717 (concluding imminent danger exception
met in part because "complaint was filed very shortly [within one month]

                               26
guards had incited hostility toward Appellant on the part of
other prisoners by labeling Appellant as an infor mant;9 and
(v) Appellant was housed in a cell block selected to facilitate
attacks by guards and inmates. These unabated conditions
clearly give rise to an ongoing imminent danger .

Hence, I believe the facts alleged in this case place
Appellant squarely within a proper interpr etation of the
exception to the three strikes rule. In Gibbs, as in Ashley
and Choyce, there were similarly sufficient averments of
ongoing danger that remained "imminent" at the time of
filing.10 The majority today disposes of this case, overrules
Gibbs, and effectively disagrees with Ashley and Choyce,
without carefully analyzing the sufficiency of the allegations
of ongoing danger.11
_________________________________________________________________

after the last attack"); Choyce, 160 F .3d at 1071 n. 4 (suggesting
reconsideration in light of erroneous view that 17 months had passed
since last injury, where actually complaint wasfiled in 40 days).

9. Cf. Wolff v. McDonnell, 418 U.S. 539, 562 (1974) ("Relationships
among the inmates are . . . perhaps subject to the unwritten code that
exhorts inmates not to inform on a fellow prisoner. . . . . The reality is
that disciplinary hearings . . . necessarily involve confrontations . . .
between inmates who are being disciplined and those who would charge
or furnish evidence against them. Retaliation is much more than a
theoretical possibility . . . .").

10. See Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (inmates' awareness
of prisoner's status as informer subjected him to threats and attacks;
Gibbs claimed his "life [was] in constant danger" and conditions were
unaddressed until litigation filed; prisoner was transferred during
pendency of appeal); see also supra n. 6 and accompanying text
(discussing Ashley and Choyce).

11. The majority neglects duly to consider the actual averments of
Appellant's complaint, instead observing that "at no point in the present
litigation did Appellant seek to rely on an ongoing danger theory". Supra
at 11 n.1. To the contrary, Appellant's counsel stated at oral argument
that "if you look to the complaint itself, . . . he alleges a continuing
course of conduct." Moreover, Appellant's counsel expressly "embrace[d]"
the argument that the time at which imminent danger is assessed is not
controlling, because "imminent really doesn't mean impending."

In any event, the majority opines as to the sufficiency of allegations of
ongoing harm, and in doing so applies too exacting a standard. Turning

                               27
The result is that, henceforth in this Cir cuit, prisoners
with three strikes seeking IFP status will be faced with an
insurmountable obstacle: they must show that a serious
physical injury is "about to" befall them"at any moment",
and apparently they may not predicate their showing on an
ongoing risk based on past events.12 What, then, will
suffice? Must a prisoner be running from his attackers as
he files? By limiting the imminent danger exception to the
"sword of Damocles" situation, the majority all but writes
the exception out of the statute. Certainly, the drastically
impoverished version of the exception allowed by the
majority cannot well fulfill its putative office as "a safety
valve . . . to prevent impending harms". Supra at 1113
_________________________________________________________________

briefly to the complaint, the majority expr esses "doubt whether [it]
suffice[s] to establish such an ongoing danger." Supra at 12 n.1. Of
course, under our liberal pleading rules such a doubt should be resolved
for, rather than against, Appellant. Similarly, the majority's observation
that some of Appellant's allegations are "generalized" should not control
our reading of the complaint. Even if those general allegations were not
supported with specific facts, as they are here, a pleading should be
deemed sufficient if it provides reasonable notice of the theories
presented. See Conley v. Gibson, 355 U.S. 41, 47 (1957). This lenity in
pleading review is especially important as applied to an indigent,
incarcerated, pro se litigant whose access to the courts is narrowly
circumscribed.

The majority concludes that Appellant's allegations fall short because
the several acts of which he complains are"unconnected", and do not
form a "pattern". Supra at 12 n.1. A fair reading of the complaint
indicates, however, that the events ar e connected by two alleged ongoing
factors: a long-established practice of arbitrary use of pepper gas
against
black inmates, and a specific animus on the part of the guards against
Appellant. Moreover, in suggesting that the mere passage of time
between the incidents and after the last incident means that the danger
was no longer imminent at the time of filing, the majority disregards the
continuing, unremedied nature of the factors that allegedly caused the
incidents. Indeed, the occurrence of multiple incidents over a substantial
time period supports rather than under mines the conclusion that
Appellant's danger was ongoing.
12. Cf. O'Shea, supra.

13. The majority's narrow reading of the exception will have a far-
reaching effect, as persistent, ongoing imminent danger is a condition all
too often encountered in our nation's prisons. Cf. Wolff, 418 U.S. at 562
(In many prisons, "[g]uards and inmates co-exist in direct and intimate
contact. Tension between them is unremitting. Frustration, resentment
and despair are commonplace.").

                               28
A prisoner's resort to the courts may be expected to avert
impending danger not only by correcting unlawful
conditions,14 but by deterring prison officials from unlawful
conduct. Under the majority's interpretation, the potential
deterrence of civil rights damages would be lost with
respect to indigent prisoners with a history of prior failed
suits. That is, guards would be free to abuse or retaliate
against such prisoners without fear of civil liability, so long
as their conduct was not so perpetual as to trigger the
majority's test for imminent danger.

The majority's undermining of the protections afforded
civil rights under section 1983 is exacerbated by other
factors which, by delaying access to courts, incr ease the
likelihood that past abuses will effectively be immunized
because a danger will no longer be "imminent" at the time
of filing.15

Finally, even in the rare case that satisfies the majority's
narrow definition of imminent danger at the time of filing,
a prisoner is effectively denied protection against trial error.
Under the majority's interpretation, a prisoner who has
secured a final judgment in the District Court finds himself
in a peculiar position: he must once again meet the
"imminent danger" requirement at that moment in time in
order to file an appeal IFP. It is highly improbable that the
danger would still be "about to" occur at the time of an
appeal, following entry of judgment.

Although the majority opinion purports to cr eate
unanimity among the courts of appeals, it does not and
cannot achieve that purpose. As discussed above, today's
_________________________________________________________________

14. Such correction may occur through formal intervention of the courts
or through voluntary redress in r esponse to a prisoner's invocation of
the
judicial process. Cf. Medberry v. Butler , 185 F.3d 1189 (11th Cir. 1999)
(prisoner subject to physical assaults transferr ed shortly after
complaint
was filed).

15. For example, prisoners who have been thr eatened or attacked are
often subject to administrative solitary confinement or hospitalization,
respectively. Moreover, our recent decisions in Booth v. Churner, 206
F.3d 289, 291 (3d Cir. 2000) and Nyhuis v. Reno, 204 F.3d 65, 67 (3d
Cir. 2000) require the exhaustion of internal prison remedies as a
prerequisite for filing an action underS 1983 or Bivens.

                                29
holding cannot be reconciled with either the Eighth
Circuit's decision in Ashley or the Fifth Circuit's decision in
Choyce. Those cases evaluated the danger as of the filing
date, but both recognized that the imminent danger
requirement may be satisfied by an ongoing threat
evidenced by past injuries attributable to uncorr ected
conditions. See supra n. 6 and accompanying text.16 We
cannot avoid a conflict by reciting similar standards, while
reaching inconsistent results.

I would hold that the exception applies, in accor d with
Gibbs, Ashley and Choyce; and I would leave for another
day determination of the constitutional validity of section
1915(g) in a case that clearly falls outside of its saving
exception.17 However, since the majority has interpreted the
exception narrowly and has found this case within the rule
barring IFP status, I will proceed to addr ess the statute's
constitutionality.

IV.

As the majority acknowledges, "[s]tatutes that
substantially burden a fundamental right . . . must be
narrowly tailored to serve a compelling governmental
interest. Plyler v. Doe, 457 U.S. 202, 216-17 (1982)." Supra
at 14.18 The right of access to the courts has long been
_________________________________________________________________

16. It should be noted that Choyce took a noticeably different approach
from Banos v. O'Guin, 144 F.3d 883 (5th Cir. 1998), the earlier Fifth
Circuit case relied upon by the majority.

17. "It is a well established rule that needless constitutional
adjudication
is to be avoided, and, toward that end, that when `a construction of the
statute is fairly possible by which the [constitutional] question may be
avoided,' such construction should be given" Roe v. Casey, 623 F.2d 829
(3d Cir. 1980) (Hunter, J., concurring) (quoting Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring)
(additional citations omitted).

18. The same level of scrutiny also applies to laws that impose burdens
based on a "suspect" classification. The majority reasons that neither
prisoners nor indigents are suspect classes. It does not necessarily
follow
that the intersection of these classes -- the class of indigent prisoners
--
is not suspect. After all, possessing neither means nor liberty (and
having incurred the disapprobation of society), indigent prisoners are a

                               30
deemed fundamental. As long ago as 1215, this right was
articulated in Chapter 29 of the Magna Carta.19 In the
seminal case of Marbury v. Madison, 5 U.S. (1 Cranch) 137,
163 (1803) the Supreme Court observed that"[t]he very
essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws,
whenever he receives an injury." Mor e recently, the Court
has repeatedly recognized the fundamental importance of
the right of access to courts.20
_________________________________________________________________

discrete, insular minority that is perhaps the group least able to protect
its fundamental rights through majoritarian pr ocesses. Cf. United States
v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938) ("whether
prejudice against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of those
political
processes ordinarily to be relied upon to protect minorities, and which
may call for a correspondingly more sear ching judicial inquiry")
(citations
omitted).

19. Chapter 29 of the Magna Carta provided:"To none will we sell, to
none will we deny or delay, right or justice." Magna Carta, c. 29 [c. 40
of King John's Charter of 1215; c. 29 of King Edwar d's Charter of 1297]
(1225), quoted in Burkett v. Cunningham, 826 F.2d 1208, 1219 (3d Cir.
1987). The effect of this guaranty was explained by Sir Edward Coke as
follows:

           [E]very subject . . . for injury done to him .. . , by any other
subject,
           be he . . . free, or bond, . . . or be he outlawed, . . . or any
other
           without exception, may take his remedy by the course of the law,
           and have justice, and right for the injury done to him, freely
without
           sale, fully without any deniall, and speedily without delay.

Coke, The Second Part of the Institutes of the Laws of England 55
(Brooke, 5th ed. 1797), quoted in Klopfer v. North Carolina, 386 U.S. 213
(1967).

20. See, e.g., Griffin v. Illinois , 351 U.S. 12 (1956) (holding that
state
courts may not deny appellate review to criminal defendants due to their
inability to pay transcript fees); Burns v. Ohio, 360 U.S. 252 (1959)
(requiring states to waive filing fees for indigent prisoners in criminal
cases); Boddie v. Connecticut, 401 U.S. 371, 380 (1971) (extending Griffin
to civil divorce context, reasoning that"a cost requirement, valid on its
face, may offend due process because it operates to foreclose a particular
party's opportunity to be heard."); Johnson v. Avery, 393 U.S. 483, 485-
86 (1969), (striking down ban on prisoners assisting other inmates with
habeas corpus petitions, explaining that "it is fundamental that access of

                               31
In Wolff, supra, the Supreme Court held that prisoners
have a constitutional right to bring civil rights actions
before the courts. "The right of access to the courts . . . is
founded in the Due Process Clause and assur es that no
person will be denied the opportunity to present to the
judiciary allegations concerning violations of fundamental
constitutional rights." Wolff , 418 U.S. at 579.21

By 1977, the Supreme Court found it to be "beyond
doubt that prisoners have a constitutional right of access to
the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977).22
The Court in Bounds described this right of access as
"fundamental", and held that it requir es that prisoners
receive "a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to
the courts." Bounds, 430 U.S. at 825, 828. Finally, in
Lewis, the Court indicated that inmates' right of court
access recognized in Bounds applies to actions "to challenge
the conditions of their confinement". Lewis , 518 U.S. at
355.

As we have previously held, this right of court access
applies even to litigious prisoners such as Appellant. See In
re Oliver, 682 F.2d 443, 446 (3d Cir. 1982), quoted in
Walton, 901 F.3d at 332 ("Access to the courts is a
fundamental tenet to our judicial system; legitimate claims
should receive a full and fair hearing no matter how
litigious the plaintiff may be.").

In view of this long and virtually unbroken array of
_________________________________________________________________

prisoners to the Courts for the purpose of pr esenting their complaints
may not be denied or obstructed", and observing that "a State may not
validly make the writ available only to prisoners who could pay a $4
filing fee."); Wolff,supra (applying holding and rationale ofAvery to
civil
rights actions).

21. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (stating that Wolff
"extended the right of access to the courts" to " `civil rights actions' -
-
i.e., actions under 42 U.S.C. S 1983 to vindicate `basic constitutional
rights.' ").

22. Cf. Lewis, 518 U.S. at 350 (describing the "right of access to the
courts" as "already well-established" when Bounds was decided).

                               32
authority,23 it can scarcely be disputed that prisoners' right
of access to the courts is a fundamental right. The majority
is doubtless correct in pointing out that the right of access
is "not absolute"; no rights are. What is important for equal
protection purposes is that the right of access is
fundamental, at least when underlying fundamental rights
are involved. See McCarthy v. Madigan, 503 U.S. 140, 153
(1992) ("[T]he right to file a court action might be said to be
[a prisoner's] remaining `most fundamental political right,
because preservative of all rights.' ") (quoting Yick Wo v.
Hopkins, 118 U.S. 356, 370 (1886)).24 Even if access to
courts were not itself a fundamental right, denial of access
should still be subject to strict scrutiny to the extent that
it may impermissibly burden underlying fundamental rights
at stake.25

Indeed, the majority opinion acknowledges that "[a]n
unconditional right of access exists for civil cases. . . when
denial of a judicial forum would implicate a fundamental
human interest". Supra at 15. However, it declines to
address whether Appellant's claims involve fundamental
rights.26
_________________________________________________________________

23. Only twice in our history has the Supr eme Court approved exaction
of fees which had the effect of excluding an indigent would-be party from
court. Both cases involved gratuitous government benefits, rather than
underlying constitutional rights. See United States v. Kras, 409 U.S. 434
(1972) (bankruptcy); Ortwein v. Schwab, 410 U.S. 656 (1973) (welfare).

24. See also Adams v. Carlson, 488 F.2d 619, 630 (7th Cir. 1973) ("[A]n
inmate's right to . . . access to the courts is as fundamental a right as
any other he may hold . . . . All other rights ar e illusory without
it.");
Lewis, 518 U.S. at 405 n.1 (Stevens, J., dissenting) ("Without the ability
to access the courts and draw their attention to constitutionally
improper behavior, . . . prisoners . . . would be deprived of the first --
and often the only -- `line of defense' against constitutional
violations.").

25. See Joshua D. Franklin, Thr ee Strikes and You're Out of
Constitutional Rights? The Prison Litigation Refor m Act's "Three Strikes"
Provision and its Effect on Indigents , 71 U. Colo. L. Rev. 191, 194
("When
an indigent prisoner with three strikes seeks to litigate a matter
affecting
a fundamental interest, any legislation that substantially burdens the
right of access to the courts must be subject to strict scrutiny review,
rather than the more deferential rational relation standard of review.").

26. The majority asserts that Appellant waived his argument that the
right to be free from serious physical injury is as fundamental as the
33
Notwithstanding the majority's avoidance of the issue, it
is manifest that the rights underlying Appellant's suit are
fundamental. As I read the Complaint, at stake are the
rights to be free from arbitrary infliction of serious physical
injury,27 and from racially discriminatory assault.28 That
these rights are fundamental to our constitutional system
cannot be gainsaid.29
_________________________________________________________________

right to divorce (as to which a right of access to court was recognized in
Boddie); but surely an assessment of the importance of the infringed
interest is implicitly part of every due pr ocess or equal protection
challenge. In any event, so long as we are addr essing the level of
scrutiny to apply, we cannot avoid deciding whether a fundamental right
is burdened.

The majority responds that "the importance of the underlying right is
largely immaterial to the question whether that right is a fundamental
interest for Boddie purposes", because "an underlying constitutional
entitlement rises to the level of a Boddie fundamental interest only when
the government blocks the sole legal means for safeguarding that
entitlement . . . ." Supra at 13 n.2. I believe this response conflates
the
elements of fundamental right and burden: the importance of the right
at stake is precisely what determines whether it is "fundamental"; while
the availability of other means to safeguard the right may help to
determine the extent to which the right is bur dened, it has no bearing
on whether the burdened right is fundamental.

27. This right is embodied in the Eighth Amendment prohibition against
cruel and unusual punishments.

28. See Wolff, 418 U.S. at 556 ("Prisoners are protected under the Equal
Protection Clause of the Fourteenth Amendment from invidious
discrimination based on race.").

29. Although the majority marshalls to its support cases from five other
circuits which have applied a rational basis r eview to section 1915(g),
four of these cases were explicitly premised on the absence of an
underlying fundamental interest. See Carson v. Johnson, 112 F.3d 818,
821 (5th Cir. 1997) (holding prisoner had no fundamental interest in
subject of suit); Rivera v. Allin, 144 F .3d 719, 724 (11th Cir. 1998)
("Rivera's well-pled allegations . . . plainly advance no cognizable
fundamental interest."); Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th
Cir. 1999) (agreeing with Carson and Rivera that "where a fundamental
interest is not at stake, section 1915(g) does not infringe upon an
inmate's meaningful access to the courts"); White v. Colorado, 157 F.3d
1226, 1233-34 (10th Cir. 1998) (recognizing right of action extends to
suits seeking to vindicate basic constitutional rights, but concluding
that

                               34
Moreover, other fundamental rights ar e sure to be
implicated in cases barred by the three strikes rule. For
example, a suit charging denial of a prisoner's religious
freedom in violation of the First Amendment is not likely to
involve an element of imminent danger, and so will fall
outside of the exception under section 1915(g). See, e.g.,
Lyon v. Krol, 940 F. Supp. 1433, 1437 (S.D. Iowa 1996),
appeal dismissed, 127 F.3d 763 (8th Cir . 1997) (dismissing
prisoner's free exercise of religion claim pursuant to three
strikes rule). Cf. O'Lone v. Estate of Shabazz , 482 U.S. 342,
348 (1987) (recognizing prisoner's fundamental right to free
exercise of religion).30

It seems clear that section 1915(g) substantially burdens
affected prisoners' access to the courts and thereby
burdens their enjoyment of whatever underlying rights they
may seek to enforce in court. The statute's ef fect, in
contravention of our law going back to the Magna Carta, is
either to sell, to delay or to deny justice to the prisoners
subject to its strictures.31 If they cannot buy entry into
court, they must wait until they can; and if the wait is too
long, justice will be denied to them.32
_________________________________________________________________

prisoner failed to state a claim for violation of the Eighth Amendment).
The fifth case, Wilson v. Yaklich , 148 F.3d 596 (6th Cir. 1998),
acknowledged that the constitutional right of access to the courts "is
indeed `fundamental' " and that a prisoner's access must be "adequate,
effective and meaningful", but found that the right was not infringed
solely because the prisoner still had recourse to state court. Id. at 605
(citations omitted).

30. See also Stacey H. O'Bryan, Note, Closing the Courthouse Door: The
Impact of the Prison Litigation Reform Act's Physical Injury Requirement
on the Constitutional Rights of Prisoners, 83 V a. L. Rev. 1189, 1202-10
(1997) (mentioning the right to be free fr om racial segregation, the
right
to privacy, and the right to be free fr om non-physical violations of the
Eighth Amendment as among those left unprotected as to prisoners
barred from litigation by section 1915(g)).

31. Cf. n.19, supra (discussing Magna Carta's prohibition against sale,
delay or denial of justice).

32. According to the majority, Congress "[r]ecogniz[ed] that it could take
prisoners a significant period of time to obtain the filing fee in some
cases". Supra at 11.

                               35
In response to the apparent burden on fundamental
rights, the majority makes two arguments: First, the
majority argues that section 1915(g) does not prevent
affected prisoners from filing their actions, but only from
enjoying IFP status. The same argument was pr eviously
made by the Eleventh Circuit. See Rivera v. Allin, 144 F.3d
719, 723 (11th Cir. 1998). This argument reflects a
surprising disregard for the practicalfinancial constraints
faced by indigent prisoners, and appears to ignor e the
reality, recognized by the Supreme Court, that even a small
prepayment obligation can pose an insur mountable hurdle.
See Boddie, 401 U.S. at 380 (acknowledging that a facially
valid fee may "offend due process because it operates to
foreclose a particular party's opportunity to be heard.");
Green, 669 F.2d at 786 (describing a prepayment
requirement as a "potentially pr ohibitive financial barrier"
to court access on the part of the affected indigent
prisoner). The majority does not, however, r eally miss this
point: in the very same paragraph in which it ar gues that
section 1915(g) does not block access to the federal courts,
it concludes that precluding suit in federal court as a
practical matter is precisely what Congr ess intended. See
supra at 10-11.33

Because it ultimately recognizes the practical reality that
access to the federal courts will be delayed or denied for
some, the majority repairs to its second ar gument: that
foreclosing the federal forum imposes no r eal burden, as
prisoners may bring the same civil rights claims in state
courts, "where limitations on filing I.F .P. may not be as
strict." Supra at 10 (emphasis added); see also supra at 15.
In the end, the majority's rejection of strict scrutiny is
expressly predicated on the presumed availability of a state
law forum.34 See supra at 16 ("Because neither Delaware
substantive law nor Delaware court rules pr evented
_________________________________________________________________

33. See also Banos, 144 F.3d at 885 n. 1 ("It is possible that a potential
litigant who is denied IFP status under this pr ovision will not have the
ability to pay the entire filing fee within the statute of limitations or,
in
the case of an appeal, within the time for filing an appeal, and will
thereby be precluded from litigating or appealing his case on the
merits.").
34. As the majority correctly observes, the Court's ruling in Boddie
turned on the State's monopoly over divor ce actions and the resultant
absence of any "recognized, effective alternatives" for resolution.
Boddie,
401 U.S. at 375-76. The case does not, however , stand for the
proposition that availability of a state forum justifies selective denial
of
access to a federal forum for the vindication of federal civil rights
claims.

                               36
[Appellant] . . . from pursuing his claims, we do not agree
that strict scrutiny is the appropriate test.") (emphasis
added).35 See also Wilson v. Yaklich, 148 F.3d 596, 605 (6th
Cir. 1998) (concluding that prisoner's fundamental right of
access to the courts was not infringed upon because he
"still had available . . . the opportunity to litigate his federal
constitutional causes of action in forma pauperis in state
court."). But cf. Rivera, 144 F.3d at 724 n.9 (declining to
place reliance on availability of state forum).

Even assuming that a state forum is available, however,
it is by no means clear that denial of a federal forum does
not in itself impose a substantial burden on the right of
access. See, e.g., Lyon, 940 F .Supp. at 1437-38 ("Although
inmates can also bring S 1983 claims in state court,
plaintiffs have an important interest in access to federal
courts for vindication of their federal constitutional
rights."); see also Procup, 792 F .2d at 1070 ("An absolute
bar against a prisoner filing any suit in federal court would
be patently unconstitutional."); Green , 669 F.2d at 786
(concluding that "constitutional right of access to the
courts" was "unduly impair[ed]" by or der that effectively
denied "any and all access to the district court"); Packer
Avenue Assocs., 884 F.2d at 748 (holding that order
prohibiting subsequent filings in federal court could "not be
allowed to stand").36
_________________________________________________________________

35. If, as appears to be the case, the statute's constitutionality as
applied
to suits based on fundamental rights hinges on the availability of an
adequate state forum, we should make this limitation explicit in order to
guide the District Courts.

36. The argument that federal courts may turn a deaf ear to those who
have access to state courts "disregar ds the historic importance of access
to federal courts to pursue civil rights claims under 42 U.S.C. S 1983."
Lukens, The Prison Litigation Reform Act , 70 Temp. L. Rev. at 512. Cf.
Monroe v. Pape, 365 U.S. 167, 174 (1961) (one purpose of S 1983 "was
to provide a federal remedy where the state remedy, though adequate in
theory, was not available in practice"); McCarthy, 503 U.S. at 153
("federal courts must take cognizance of the valid constitutional claims
of prison inmates") (citations omitted).

It is important to note that the Supreme Court has expressly rejected
the converse argument that the availability of a federal remedy justified
a filing fee that effectively barred indigent prisoners from state court.
See

                               37
Although the alternative forum argument may have
superficial appeal, I do not believe it can withstand
searching examination. In the first place, the argument
neglects to consider foreclosure of the courts to the "three-
strikes" prisoner in states which have adopted parallel
legislation.37 This is not mer ely an academic concern. The
Commonwealth of Pennsylvania appeared as an amicus
curiae in this case and explained that the "many thousands
of prisoners" housed in Pennsylvania's thirty-nine
correctional facilities "annually file hundreds of federal civil
actions directed against state officials and employees", and
implied that a substantial number of those actions would
be affected by the decision announced her ein. Because
Pennsylvania has adopted a three strikes limitation of IFP
status that parallels section 1915(g), ther e is no judicial
forum available to indigent Pennsylvania prisoners with
three strikes unless they can satisfy the majority's virtually
preclusive test for imminent danger, no matter how
meritorious their claims and no matter how fundamental
the rights at stake.38

In the second place, the alternative forum ar gument also
neglects the potential implications of removal to federal
court. Federal-law civil rights actions filed in state court
generally may be removed by the defendants, with the likely
_________________________________________________________________

Smith v. Bennett, 365 U.S. 708 (1961). T o paraphrase the Court's
admonition, "it would ill-behoove this gr eat [nation], whose devotion to
the equality of rights is indelibly stamped upon its history, to say to
its
indigent prisoners seeking to redress what they believe to be [violations
of federal law]: `go to the [state] court.' " Id. at 713.

37. See, e.g., 41 Pa. C.S.A. S 6602(f) (West Supp. 1999); La. Rev. Stat.
Ann. S 1187 (West Supp. 1999). See also Laurie Smith Camp, Why
Nebraska Needs Prison Litigation Reform, 76 Neb. L. Rev. 781, 781
(1997) (proposing parallel state legislation in Nebraska); Three Strikes,
71
U. Colo. L. Rev. at 209-210 (predicting that"[o]ther states are likely to
respond similarly to the influx of claims br ought by [prisoners] who are
otherwise precluded from bringing suit in forma pauperis").

38. In its amicus brief, Pennsylvania ar gues that a state forum is
available, but inexplicably neglects to notify us that the purported
alternative is generally unavailable to Pennsylvania prisoners with claims
concerning prison conditions.

                               38
effect that an indigent plaintiff subject to the three strikes
rule would lose his ability to appeal.39 The prospective loss
of such an important procedural safeguar d is a very
substantial burden on affected litigants. 40

Because section 1915(g) does impose a substantial
burden on the fundamental rights of many if not all
members of the class against whom it is directed, the next
step is to examine whether it is narrowly tailored to serve
a compelling governmental interest.

As identified by the majority, the congressional purpose
behind section 1915(g) was to deter frivolous lawsuits
through "economic incentives that would pr ompt prisoners
to `stop and think' before filing a complaint." Supra at 17.
See also supra at 10 ("The `three strikes' rule . . . supplied
a powerful economic incentive not to file frivolous lawsuits
or appeals.").41 It is not at all apparent how "disqualifying
frequent filers who have failed in the past to carefully
_________________________________________________________________

39. See The Prison Litigation Reform Act, 70 Temp. L. Rev. at 513-517
(observing that if defendant removes the case to federal court as
permitted under 28 U.S.C. S 1441, plaintiff may lose his right to appeal
the federal claims if he is within the provisions of section 1915(g) and
cannot afford prepayment in full; he may also be unable to appeal
pendent state claims over which the district court exercised
jurisdiction).

40. See Griffin, 351 U.S. at 18 ("It is true that a State is not required
by
the Federal Constitution to provide appellate courts or a right to
appellate review at all. But that is not to say that a State that does
grant
appellate review can do so in a way that discriminates against some
convicted defendants on account of their poverty."); See also Three
Strikes, 71 U. Colo. L. Rev. at 209 (noting that"[a]lthough the right to
an appeal is not constitutionally guaranteed, equal protection concerns
nevertheless arise when this right is effectively denied to only one class
of litigant") (citing Douglas v. Califor nia, 372 U.S. 353, 357-58
(1963)).

41. Cf. Frank I. Michelman, The Supr eme Court and Litigation Access
Fees: The Right to Protect One's Rights - Part II, 1974 Duke L.J. 527, 559
(observing that a fixed fee's deterrent ef fect on frivolous filings will
vary
inversely with the individual's finances, with the truly indigent being
"totally `deterred' "). Michelman concludes that " `Deterrence' in any
acceptable sense of that term, can be depended upon to operate only on
that group of citizens to whom [the fee] will seem neither a prohibitive
sum, nor, on the other hand, a trifling amount to pay for the privilege of
demanding one's rights." Id.
39
evaluate their claims" can serve as a "deterr ent
mechanism". Supra at 17 (emphasis added). No matter how
long a disqualified prisoner such as Appellant stops, no
matter how carefully he thinks, and no matter how
meritorious his claims, he will remain disqualified. It is
simply not possible to deter frivolous filings that have
already occurred. At a minimum, ther efore, the
retrospective application of the thr ee strikes rule to past
filings cannot further the statute's asserted deterrent
purpose.42

With respect to future filings, it is difficult to see how the
three strikes rule functions solely as an economic deterrent.
To be sure, another section of the PLRA is well calculated
to have that effect. See 28 U.S.C.S 1915(b) (requiring
prisoners with IFP suits to pay filing fee in installments, in
lieu of prior practice of waiving fee). This section corrects
the perceived problem of inmates filing suits with no
financial consequences, while at the same time ensuring
that the truly indigent prisoner will not be denied access to
the courts solely because he lacks the requisite funds.43
The disincentive supplied by the three strikes rule, on the
other hand, is not purely economic. For the truly indigent,
the rule threatens a loss of the fundamental right of access
to the courts. This is in no sense a market-corr ecting
economic deterrent.44
_________________________________________________________________

42. In the present case, according to the District Court, only one of
Appellant's disqualifying dismissals occurred after the effective date of
the PLRA. App. 20.
43. See 28 U.S.C. S 1915(b)(4) (Supp. III 1997) (providing that "[i]n no
event shall a prisoner be prohibited fr om bringing a civil action or
appealing a civil or criminal judgment for the r eason that the prisoner
has no assets and no means by which to pay the initial partial filing
fee."). This saving provision is inapplicable to prisoners subject to
section
1915(g).

44. The majority's discussion does not say how the three strikes rule is
supposed to further deterrence. Instead, it seems to say that the three
strikes rule is rationally related to its goal because it is within
congressional power. See supra at 18 ("Preventing frequent filers from
obtaining fee waivers is rationally related to the legitimate government
interest of deterring frivolous lawsuits because `Congress is no more
compelled to guarantee free access to federal courts than it is to provide
unlimited access to them.' "). This is patently a non sequitur.

                               40
In any event, even assuming that the goal of deterring
frivolous suits is a compelling governmental interest, and
that the three strikes rule somehow furthers that goal, the
statute nevertheless cannot withstand strict scrutiny
because at best there is only a very poor fit between end
and means. As a mechanism for deterring frivolous claims,
section 1915(g) is both under- and over -inclusive. On the
one hand, it leaves unchecked the flow of frivolous lawsuits
filed by indigent non-prisoners and by prisoners and non-
prisoners with sufficient funds.45 On the other hand, it cuts
off non-frivolous claims filed by indigent prisoners within
its scope. See supra at 10 ("In stark ter ms, . . . the I.F.P.
privilege will not be available . . . no matter how
meritorious subsequent claims may be.").46 These
shortcomings precisely echo those of the pr epayment
requirements disapproved in Green and its progeny.47 Cf.
Rinaldi v. Yeager, 384 U.S. 305, 310 (1966) (state statute
requiring reimbursement of cost of criminal appeal
transcript only as to prisoners held unconstitutional:
"Assuming a law enacted to [deter frivolous appeals] to be
otherwise valid, the present statutory classification is no
less vulnerable under the Equal Protection Clause when
_________________________________________________________________

45. See, e.g., Mary Tushnet and Larry Y ackle, Symbolic Statutes and Real
Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act
and the Prison Litigation Reform Act, 47 Duke L. J. 1 (Oct. 1997)
("[N]otably, the statute allows any prisoner who can pay the complete
filing fee in advance to file as many frivolous or malicious lawsuits as
she wants.").

46. Compare Watson, 901 F.2d 329, 331 (finding denial of constitutional
right where blanket bar to IFP filings failed to "consider[ ] the effects
on
a legitimate claim").

47. Illustrating the "general inappropriateness of withdrawing the in
forma pauperis privilege as a means to curtail. . . abuse", the Green
court observed:

        On the one hand, Green is totally free toflood the courts with
paper
        provided that he pays the going rate: or ders erecting financial
        barriers are only as effective as the litigant is truly
impoverished. On
        the other hand, these restrictions are clumsily overinclusive: if
        Green does not have the money to file a frivolous claim, he also
does
        not have the money to file a legitimate one.

669 F.2d 779.
41
viewed in relation to that function. By imposing a financial
obligation only upon inmates of institutions, the statute
inevitably burdens many whose appeals, though
unsuccessful, were not frivolous, and leaves untouched
many whose appeals may have been frivolous indeed.")
Moreover, much better targeted means are available to
arrest chronic frivolous filings.48

It is therefore not surprising that courts which have
applied strict scrutiny have found section 1915(g) wanting.
See Lyon, 940 F. Supp. 1433 (S 1983 action alleging denial
of participation in Jewish services and other r eligious
practices);49 Ayers v. Norris , 43 F.Supp.2d 1039 (E.D. Ark.
1999). See also Wilson, 148 F.3d at 604 (upholding section
1915(g) under a rational basis test, but noting the court
"might not believe [S 1915(g)] to be . . . even a prudent[ ]
response to the problem presented").50
_________________________________________________________________

48. The injunction that apparently r emains in effect against Appellant,
setting special filing preconditions in r esponse to his history of abuse,
is
but one example. See supra at 4. Another example is the PLRA's own
provision for judicial screening. Under section 1915A, a court may review
and assess the merit of a prisoner's claims befor e docketing. See 28
U.S.C. S 1915A(a)-(b) (Supp. III 1997). These measures, directed at
particular abusers and particular frivolous claims, are clearly more
narrowly tailored to serve their pr oper end than the three strikes
classification, which lumps good faith err or with abuse and stifles
meritorious claims along with frivolous ones. See Lukens, The Prisoner
Litigation Reform Act, 70 Temp. L. Rev. at 505-06 (observing that
"Section 1915(g) . . . treats the prisoner who has filed otherwise
meritorious claims, but failed to name the pr oper party, . . . in the
same
manner as the litigant who sued the President .. . for stealing the
multiplication tables from him.")

49. The District Court in Lyon noted that, unlike the traditional
discretionary power of the courts to limit abusive litigation by an
individual prisoner based on his particular cir cumstances, the "three
dismissal rule" gave no consideration to, e.g., length of incarceration,
number of meritorious actions, or "other pertinent information that
might guide a federal court in properly limiting abuse . . . ." Lyon, 940
F. Supp. at 1438. Applying a strict scrutiny review, the District Court
held section 1915(g) violative of equal pr otection. The Eighth Circuit
undertook no constitutional review, finding instead that the plaintiff
lacked standing because he had sufficient funds.

50. The majority's response that constitutional constraints require
"neither a perfect nor even best availablefit" between statutory ends and

                               42
Because section 1915(g) is not narrowly tailor ed to serve
a compelling governmental purpose, its substantial
infringement of indigent prisoners' fundamental right of
access to the courts, and of the constitutional rights at
stake in the potential litigation thwarted ther eby, amounts
to an unconstitutional deprivation of the equal pr otection of
the laws and of the due process of law guaranteed by the
Fifth Amendment.51 Cf. Romer v. Evans, 517 U.S. 633
(1996) ("A law declaring that in general it shall be more
difficult for one group of citizens than for all others to seek
aid from the government is itself a denial of equal
protection of the laws in the most literal sense.").52
_________________________________________________________________

means, supra at 18, quoting United States v. Mariani, 212 F.3d 761, 774
(3d Cir. 2000) (en banc), is not entir ely apt. Section 1915(g) is not
constitutionally deficient because it is mer ely imperfect or sub-optimal;
rather, its very high degree of both under- and over-inclusiveness
renders it an extremely poor fit. Cases such as Mariani, which permit a
certain degree of under-inclusiveness in statutes that burden First
Amendment rights, therefore do not advance the inquiry. In the context
of an equal protection challenge to a bur den on access to the courts, the
Supreme Court has found the same type of under - and over-
inclusiveness at issue here to be constitutionally impermissible. See
Rinaldi, supra at 41-42.

51. This conclusion is in accord with an apparent consensus among
commentators who have addressed the constitutionality of the PLRA's
three strikes provision. See, e.g., Lukens, The Prison Litigation Reform
Act, supra n. 36; Franklin, Three Strikes, supra n. 25; David C.Leven,
Justice for the Forgotten and Despised, 16 Touro L. Rev. 1, 15 (Fall
1999); Mary Tushnet and Larry Yackle, Symbolic Statutes and Real Laws:
The Pathologies of the Antiterrorism and Ef fective Death Penalty Act and
the Prison Litigation Reform Act, 47 Duke L. J. 1, 70 (Oct. 1997); Simone
Schonenberger, Access Denied: The Prison Litigation Reform Act, 86 Ky.
L. J. 457 (1997-1998); Catherine G. Patsos, The Constitutionality and
Implications of the Prison Litigation Reform Act, 42 N.Y.L. Sch. L. Rev.
205 (1998).

52. In addition to its infirmity on equal protection grounds, section
1915(g) raises troubling questions concer ning the constitutional
prohibition against bills of attainder and ex post facto laws, in that it
operates as an extra-judicial punishment against an identified group
based on their past conduct. As noted by the majority, the three strikes

                               43
A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

rule seeks to deter prisoner litigation by "disqualifying frequent filers
who have failed in the past to carefully evaluate their claims prior to
filing." Supra at 17. Cf. Hughes Aircraft Co. v. United States, 520 U.S.
939, 947 (1997) (stating that a statute which "attaches a new disability,
in respect to transactions . . . already past, must be deemed
retrospective") (quoting Soc. for Propagation of the Gospel v. Wheeler, 22
F. Cas. 756, 767 (No. 13,156) (C.C.N.H. 1814) (Story, J.)).

The Supreme Court has identified three r equirements for finding that
a challenged statute is a bill of attainder: "specification of the
affected
persons, punishment, and lack of a judicial trial." Selective Service
System v. Minnesota Public Interest Resear ch Group, 468 U.S. 841, 847
(1984). As to the first element, section 1915(g) plainly is directed
toward
"specifically designated persons or groups". Id., quoting United States v.
Brown, 381 U.S. 437, 447 (1965). The af fected prisoners are identified by
an objectively ascertainable, immutable characteristic -- three or more
prior "strikes" -- and are commonly r eferred to in cases and
congressional debate by a common pejorative title ("frequent filers"). As
to the second element, the majority appears to acknowledge a punitive
purpose and effect: "Potentially negative consequences in federal courts
. . . are precisely the consequences intended by Congress. The outcome
predicted by Appellant [i.e., that a prisoner "could forever lose his
ability
to bring his suit as a practical matter"] is . .. exactly what Congress
intended." Supra at 10-11. Cf. Green, 669 F.2d at 786 (characterizing as
"simply punitive" a prepayment requirement which "is not geared to
discerning whether each claim presents a new nonfrivolous issue" and
whichs seeks to "deter" by "assum[ing]" that the affected prisoner "will
not be able to meet the required filing fee"). Finally, as to the third
element, section 1915(g) imposes its deprivation without any judicial
trial. Cf. Lyon, 940 F. Supp. at 1438 (contrasting blanket bar of section
1915(g) with particularized discretion attendant on judicial proceeding to
limit abusive litigation).

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