                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
      _______________

      Nos. 00-3315/3316
      _______________

Ray Antwane Higgins,                   *
                                       *
             Appellant/Cross-Appellee, *
                                       *
       v.                              *
                                       *
Thomas M. Carpenter, City Attorney,    *
Little Rock, Arkansas,                 *
                                       *
             Appellee/Cross-Appellant. *
       __________
                                           Appeals from the United States
      No. 01-1311                          District Court for the
      __________                           Eastern District of Arkansas.

Reginald R. Early,                      *
                                        *      [PUBLISHED]
             Appellee,                  *
                                        *
      v.                                *
                                        *
Greg Harmon, Warden, Maximum            *
Security Unit, ADC; Larry Norris,       *
Director, Arkansas Department of        *
Correction; L. J. Brown; Sgt. Hearn,    *
                                        *
             Appellants.                *
                                   ___________

                          Submitted: June 7, 2001
                              Filed: August 6, 2001
                                     ___________

Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
                          ___________

PER CURIAM.

       Arkansas inmate Ray Antwane Higgins appeals the District Court’s order
dismissing his 42 U.S.C. § 1983 action for failure to state a claim. Defendant
Thomas M. Carpenter cross-appeals the Court’s refusal to apply the “three-strikes” rule
of the Prison Litigation Reform Act of 1995 (PLRA), 28 U.S.C. § 1915(g) (Supp. IV
1998). He argues that the “three-strikes” rule prevents Higgins from bringing a civil
action in forma pauperis (IFP) because Higgins has, on three or more prior occasions,
brought an action or appeal in federal court that was frivolous, malicious, or failed to
state a claim and because Higgins is not under imminent danger of serious physical
injury. The appeals of Higgins and Carpenter have been consolidated with an appeal
by the defendants in the § 1983 suit brought by Arkansas inmate Reginald Early. The
Early defendants also appeal the denial of their motion to apply the "three-strikes" rule
under § 1915(g). In declining to apply § 1915(g), both courts relied on Ayers v. Norris,
which undertook a strict scrutiny review and held § 1915(g) unconstitutional, as applied
to Ayers, under the equal protection component of the Due Process Clause. See 43
F. Supp. 2d 1039, 1044-51 (E.D. Ark. 1999). Having conducted de novo review, see
United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.), cert. denied, 522 U.S. 934
(1997), we conclude that the court’s analysis in Ayers was incorrect because § 1915(g)
need survive only a rational basis test, not a strict scrutiny test. Applying a rational
basis review, we find that § 1915(g) does not violate the Equal Protection Clause.
Accordingly, we reverse both orders refusing to apply § 1915(g) and we dismiss
Higgins’s appeal.




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                                           I.

       Following his December 23, 1994 arrest by Little Rock police officers, Higgins
filed a § 1983 action against the City of Little Rock, its police chief, and unnamed
police officers. He alleged that the defendants had subjected him to an unlawful search,
used excessive force, and arrested him without probable cause. The District Court
granted summary judgment to the defendants and we affirmed. See Higgins v. City of
Little Rock, No. 97-3270, 1998 WL 142137 (8th Cir. Mar. 26, 1998) (unpublished per
curiam) (Higgins I). Thereafter, Higgins filed two other § 1983 actions (Higgins II and
Higgins III) based on the December 23 arrest. Both actions were dismissed by the
District Court based on res judicata and we summarily affirmed both dismissals.

       In the instant action (Higgins IV), Higgins sued Little Rock City Attorney
Carpenter. He alleged that Carpenter conspired to conceal the police officers’
misconduct, withheld information supporting Higgins’s claims, and knowingly misled
the court in Higgins I. The District Court granted Higgins IFP status based on his poor
financial condition. Carpenter moved to dismiss, arguing Higgins was trying to raise
the same issues as in Higgins I, II, and III. He also moved for sanctions, namely, an
order under § 1915(g) denying Higgins the right to proceed IFP based on the dismissals
and unsuccessful appeals in Higgins II and Higgins III. The District Court granted
Carpenter’s motion to dismiss, but denied the requested sanctions based on Ayers. The
Court also granted Higgins’s motion to proceed IFP on appeal.

      In his § 1983 action, Early sued various prison officials and staff, alleging that
he was denied exercise for forty-six days while locked down in administrative
segregation and that on three occasions security personnel refused to take him to
medical appointments for hand and skin problems and a lower-leg sore. He was
granted IFP status because his prison account statement reflected a sizable negative
balance. The defendants moved to deny Early IFP status under § 1915(g) based on the
dismissal of six of his prior lawsuits for a failure to state a claim. The District Court

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acknowledged that Early had three prior strikes and was not alleging that he was in
imminent danger. The court concluded, however, that § 1915(g) would be
unconstitutional as applied to Early because he would be wholly denied access to the
courts given his inability to pay the full filing fee up front, and because the allegations
in his complaint asserted a violation of his fundamental rights. This ruling was certified
for interlocutory appeal under 28 U.S.C. § 1292(b) (1994).

       On appeal, Carpenter and the Early v. Harmon appellants argue that rational
basis review of § 1915(g) is proper, and that § 1915(g) has a rational basis. The Early
v. Harmon appellants emphasize that the fundamental right at issue—access to the
courts, not the underlying claim in Early’s suit—is not impeded. The United States has
filed an intervenor’s brief.

                                            II.

       “Unless a classification trammels fundamental personal rights or is drawn upon
inherently suspect distinctions such as race, religion, or alienage, our decisions presume
the constitutionality of the statutory discriminations and require only that the
classification challenged be rationally related to a legitimate state interest.” City of
New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam). Like the other five
circuit courts of appeals that have considered and rejected equal protection challenges
to § 1915(g),1 we conclude rational basis review applies. See Rodriguez v. Cook, 169
F.3d 1176, 1178-81 (9th Cir. 1999); White v. Colorado, 157 F.3d 1226, 1232-35 (10th
Cir. 1998), cert. denied, 526 U.S. 1008 (1999); Wilson v. Yaklich, 148 F.3d 596, 604-
05 (6th Cir. 1998), cert. denied, 525 U.S. 1139 (1999); Rivera v. Allin, 144 F.3d 719,
727-28 (11th Cir.), cert. dismissed, 524 U.S. 978 (1998); Carson v. Johnson, 112 F.3d


      1
       Some of these courts also addressed other constitutional issues regarding
§ 1915(g), including retroactivity, ex post facto, separation of powers, and bill of
attainder challenges.
                                            -4-
818, 821-22 (5th Cir. 1997). First, the classifications at issue are inmates and
indigents, neither of which is a suspect class. See Murray v. Dosal, 150 F.3d 814, 818
(8th Cir.1998) (per curiam), cert. denied, 526 U.S. 1070 (1999).

      Second, we consider whether the classification trammels a fundamental right.
We observe that the right invoked is an inmate’s access to the courts, a recognized
fundamental right. Bounds v. Smith, 430 U.S. 817, 818 (1977). We find that
§ 1915(g) does not impinge this fundamental right because it does not prohibit indigent
inmates from having a “reasonably adequate opportunity” to pursue valid lawsuits.
Lewis v. Casey, 518 U.S. 343, 356 (1996) (clarifying that touchstone of scope of
inmates’ right of access to courts is whether inmates have “reasonably adequate
opportunity to file nonfrivolous legal claims challenging their convictions or conditions
of confinement”); see also Rodriguez, 169 F.3d at 1179 (finding that under Lewis v.
Casey a prison system does not have to provide maximum or even optimum level of
access to courts).

       Section 1915(g) applies only to civil actions, and indigent inmates are not denied
IFP status for potentially nonfrivolous civil claims unless and until they file three
meritless suits. Thus, they risk the known possibility of being denied IFP status for
future nonfrivolous § 1983 actions when they choose to continue filing frivolous,
malicious, and meritless suits after receiving notice of dismissals that would count as
§ 1915(g) strikes; indigent inmates therefore control whether the three-strikes rule is
ever applied to them. Cf. Christiansen v. Clarke, 147 F.3d 655, 658 (8th Cir.) (finding
that § 1915(g) raises expected cost to inmate of each frivolous, malicious, or meritless
filing by pushing him one step closer to initially having to pay full filing fee), cert.
denied, 525 U.S. 1023 (1998).

       Even when § 1915(g) is applied, the affected inmate can file his suit by paying
the full filing fee up front. See Ashley v. Dilworth, 147 F.3d 715, 716-17 (8th Cir.
1998) (per curiam) (finding that the PLRA does not close courthouse doors to frequent

                                           -5-
filers; it merely makes them pay full filing fee sooner rather than later); Lyon v. Krol,
127 F.3d 763, 765 (8th Cir. 1997) (stating that § 1915(g) does not stop three-strike
inmates from pursuing legal claims, but only limits their ability to proceed IFP). The
indigent inmate who has three strikes also may file if he is under imminent danger of
serious physical injury. See Rivera, 144 F.3d at 724 (PLRA does not render frequent
filer who cannot prepay entire filing fee without means for asserting claims to prevent
grave bodily harm). We conclude that an inmate’s right of access to the courts, as that
right is defined in Lewis v. Casey, is not impeded. Therefore it is not necessary to also
examine—as the Ayers court did—the nature of the specific claim the inmate is
attempting to bring.

       Our conclusion as to the appropriate standard of review is consistent with our
application of rational basis review in rejecting similar equal protection challenges. In
Murray, we upheld the requirement under 28 U.S.C. § 1915(b)(1) (Supp. IV 1998), that
inmates must pay an initial partial filing fee unless they have no assets and no means
to pay. See 150 F.3d at 817-18 (holding that the imposition of filing fees, over time if
required, does not burden the right to court access). We have also upheld 28 U.S.C.
§ 1915(e)(2)(B)(ii) (Supp. IV 1998), which allows a court to dismiss, prior to service
of process and without leave to amend, an IFP action or appeal if it fails to state a claim
on which relief may be granted. See Christiansen, 147 F.3d at 657-58 (finding that the
statute reduces costs of meritless IFP suits to the judicial system).2

       It is true that some indigent inmates—who, like Higgins and Early, have no
prison jobs or other income sources and cannot save the full filing fee—may be
effectively prevented from pursuing valid constitutional claims after receiving three
strikes. Yet, “a constitutional requirement to waive court fees in civil cases is the
exception, not the general rule.” M.L.B. v. S.L.J., 519 U.S. 102, 114 (1996); see also


      2
      It appears inmate Christiansen sought review under the rational basis standard.
See Christiansen, 147 F.3d at 657-58.
                                            -6-
Carson, 112 F.3d at 821. The Supreme Court has recognized only a few civil matters
in which fee waivers are required. See, e.g., M.L.B., 519 U.S. at 113, 123-24
(termination of parental rights); Boddie v. Connecticut, 401 U.S. 371, 376 (1971)
(divorce proceedings). If fee waivers are not constitutionally required in prisoner
§ 1983 cases, it follows that inmates do not have a constitutional right to pay court fees
for civil cases by the installment method. See Rivera, 144 F.3d at 724 (“To be sure,
proceeding IFP in a civil case is a privilege, not a right—fundamental or otherwise.”).

       Applying the rational basis test to § 1915(g), we conclude that it is rationally
related to a legitimate government interest and does not violate equal protection. See
Christiansen, 147 F.3d at 658 (holding that the 1996 amendments to § 1915 created
“monetary and procedural disincentives to the filing of meritless cases,” and that in
“preserving scarce judicial resources by deterring baseless, frivolous, and malicious
suits Congress was furthering a legitimate state interest”). We also conclude that the
classifications created by § 1915(g)—indigent inmates versus indigent non-inmates, and
frequent-filer indigent inmates versus other indigent inmates—have a rational basis.
See Heller v. Doe, 509 U.S. 312, 320 (1993) (holding that a classification survives
equal protection challenge if there is any reasonably conceivable set of facts that could
provide rational basis for it); Wilson, 148 F.3d at 604 (holding that the differentiation
between inmates and non-inmates under § 1915(g) has a rational basis because inmates
have substantially more free time than non-inmates and are provided with food,
housing, paper, postage, and legal assistance); Rivera, 144 F.3d at 728 (holding that
Congress has a rational basis to believe the goal of curtailing abusive prison litigation
would be furthered by separating frequent-filer indigent inmates from other indigent
inmates).




                                           -7-
                                           III.

      Because § 1915(g) survives the equal protection challenge before us, we
conclude that the District Court should have dismissed Higgins IV under § 1915(g) and
that the court erred in granting Higgins IFP status on appeal and thus the appeal in
Higgins IV should be dismissed without addressing its merits. Higgins does not
contend that he is under imminent danger of serious physical injury, and he does not
contest Carpenter’s assertion that the dismissals and affirmances in Higgins II and
Higgins III were “strikes.” Cf. Rivera, 144 F.3d at 721-22, 730 (holding that an inmate
who challenges district court’s dismissal under three-strikes rule has burden to furnish
appellate court with sufficient record information about challenged “strikes”).
Although affirmance of a district court’s dismissal of a complaint as frivolous does not
automatically make the appeal frivolous, see Henderson v. Norris, 129 F.3d 481, 485
n.4 (8th Cir. 1997) (per curiam), we find that the district court dismissals and our
summary affirmances in Higgins II and Higgins III qualify as four strikes, as these
actions were based on the same claims and against the same defendants as in Higgins I.
Cf. Aziz v. Burrows, 976 F.2d 1158, 1158 (8th Cir. 1992) (affirming district court’s
dismissal of inmate’s duplicative § 1983 complaint as frivolous). Likewise, the District
Court in Early v. Harmon erred in declining to grant defendants’ motion to deny Early
IFP status, as it is uncontested that he had three strikes and was not in imminent danger
of serious physical injury.

                                           IV.

       Accordingly, we dismiss Higgins’s appeal, and we reverse and remand to the
District Courts with instructions to deny IFP status to Higgins and to Early under
§ 1915(g).




                                           -8-
A true copy.

      Attest:

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




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