                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-4082
                                    ___________

Ricky Ashley,                       *
                                    *
             Appellant,             *
                                    *
      v.                            * Appeal from the United States
                                    * District Court for the
E. Dilworth, CO-1, Maximum Security * Eastern District of Arkansas.
Unit, Arkansas Department of        *
Correction,                         *       [PUBLISHED]
                                    *
             Appellee.              *
                               ___________

                          Submitted: April 16, 1998
                              Filed: June 19, 1998
                                  ___________

Before FAGG, BEAM, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

       Ricky Ashley brought a 42 U.S.C. § 1983 action in July 1997, claiming that
defendant prison officials caused him to suffer injury when they repeatedly placed him
in proximity to inmates on his enemy alert list. The district court denied him in forma
pauperis (IFP) status under the “three strikes” provision of the Prison Litigation
Reform Act, 28 U.S.C. § 1915(g), and dismissed his complaint without prejudice, and
Ashley appeals. We reverse and remand for further proceedings.
       In denying leave to proceed IFP, the district court found that Ashley had made
the requisite poverty showing under 28 U.S.C. § 1915(a), but that he had had at least
three prior complaints dismissed as frivolous, had not alleged any facts to indicate he
was under imminent danger of serious physical injury, and was thus ineligible for IFP
status under section 1915(g) (prisoner may not bring civil action or appeal if prisoner
has had three prior actions or appeals dismissed for frivolousness, maliciousness, or
failure to state a claim, “unless the prisoner is under imminent danger of serious
physical injury”). While denying Ashley leave to file his complaint IFP, the district
court did grant him leave to proceed IFP on appeal. Ashley continues to argue that he
is in imminent danger of physical injury by defendants' repeated placement of him
around his enemies.

       The in forma pauperis statute, 28 U.S.C. § 1915, was substantially amended by
the Prison Litigation Reform Act of 1995.1 The purpose of the Act was to require all
prisoner-litigants to pay filing fees in full, with the only issue being whether the inmate
pays the entire filing fee at the initiation of the proceeding or in installments over a
period of time. See Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (citing
McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). Section 1915(g) denies
the installment payment method to those prisoners who have had three previous cases
or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which
relief can be granted ("three strikes"). We stress that the Act does not close the
courthouse doors to prisoners who frequently file frivolous lawsuits; rather, it merely
makes them pay the full ordinary filing fees sooner rather than later.

      There is one exception to the "three strikes" rule: Section 1915(g) further
provides that, even if a prisoner has exhausted his three strikes, he will be permitted to
proceed IFP (i.e., pay the filing fee in installments rather than up front) if he is under


      1
      Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996) (codified at 28 U.S.C.
§ 1915 (West Supp. 1997)).

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imminent danger of serious physical injury. 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 are insufficient to trigger this exception
to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan.
Contra Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997) (proper focus must be the
imminent danger faced by the inmate at the time of the alleged incident and not at the
time the complaint is filed).

        After a careful review of the pleadings, we agree with Ashley that he sufficiently
alleged imminent danger of serious physical injury to meet the exception to the "three
strikes" rule of section 1915(g). According to the sworn allegations of his amended
complaint, Ashley first notified defendants in September 1993 that he was being placed
near inmates on his enemy list. In June 1996, defendants threatened to transfer him so
as to place him near an enemy, intending that he be harmed, and in July 1996, he
actually was placed near his enemy and was attacked with a sharpened, nine-inch
screwdriver. Ashley again notified defendants in May 1997 of his placement near
listed enemies, and on June 28, 1997, he was again attacked by the same enemy who
was then armed with a butcher knife, as a result of defendants' actions. Ashley
supported the allegations of his complaint with documentary evidence, including
corroborative prison disciplinary reports. In short, because Ashley has properly alleged
an ongoing danger, and because his complaint was filed very shortly after the last
attack, we conclude that Ashley meets the imminent danger exception in § 1915(g).



      Accordingly, we reverse the judgment of the district court and remand the case
for further proceedings with directions that Ashley be permitted to file his complaint
pursuant to § 1915 without the full payment of the filing fee up front.

BEAM, Circuit Judge, dissenting.

                                           -3-
       I respectfully dissent from that portion of the court's opinion that will allow a
prisoner to utilize section 1915(g) to assert a claim for past damages. In my view, the
court today creates "a loophole Congress surely did not intend in its stated goal of
discouraging frivolous and abusive prison lawsuits." In re Tyler, 110 F.3d 528, 529 (8th
Cir. 1997) (quotations omitted). Here, Ashley seeks compensatory and punitive
damages for alleged events that are months--if not years--old, as well as declaratory
and injunctive relief of a more immediate nature. Under the statute, I believe we are
limited by the "three strikes" provision to the remedy of prospective relief only.

       Congress enacted the Prison Litigation Reform Act with the principal purpose
of deterring frivolous prisoner litigation by instituting economic costs for prisoners
wishing to file civil claims. Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997). To that
end, it created a system of "monetary and procedural disincentives to the filing of
meritless cases." Christiansen v. Clarke, 1998 WL 271536, *2 (8th Cir. May 29,
1998). That system withstands Constitutional scrutiny. Id. at *3.

       The "three strikes" provision directs that prisoners who have had three previous
civil suits or appeals dismissed as malicious, frivolous, or for failure to state a claim
must prepay the entire filing fee. 28 U.S.C. § 1915(g). In passing the "three strikes"
provision, members of Congress stated that the purpose of the provision is to require
prisoners to pay for filing a lawsuit in the same way as nonprisoners. See Lyon, 127
F.3d at 767 (Heaney, J., dissenting). The requirement of up-front payment for repeat
frivolous filers has one narrow and important exception: a prisoner who "is under
imminent danger of serious physical injury" will be permitted to file in forma pauperis
(IFP) and to make installment payments. 28 U.S.C. § 1915(g).

      By requiring that the prisoner "is," in imminent danger of being physically
harmed, the statute implies that his or her remedy is protection from such harm. In
other words, by its plain language, the statute limits the relief we can offer such a
prisoner to prospective relief for the actions that have caused the immediate risk of

                                          -4-
harm. There is no authority for a wholesale consideration of issues unrelated to the
threat of imminent danger. But see Gibbs v. Roman, 116 F.3d 83, 87 n.7 (3d Cir.
1997). I find no authority under this statutory exception to file a lawsuit on the
installment plan seeking an award of damages for alleged actions that have happened
in the past. Relevant as such actions may be as evidence of a risk of present danger,
they cannot form the basis of a claim for which a prisoner can obtain IFP status under
this narrow exception. Such a prisoner is, of course, free to pursue such a claim and
pay for it. We are concerned here with the narrow circumstance in which a court can
and should allow a prisoner who is in immediate danger of harm to proceed IFP.
Accordingly, to the extent that today's decision will allow Ashley to seek damages for
alleged events dating back to 1993, I respectfully dissent.

      A true copy.

             Attest:

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




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