                                                                            PUBLISH

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT             FILED
                                       --------------     U.S. COURT OF APPEALS
                                      No. 97-4516           ELEVENTH CIRCUIT
                                                                 08/23/99
                                       --------------
                                                             THOMAS K. KAHN
                            D. C. Docket No. 97-319-CV-UUB        CLERK

DANIEL C. MEDBERRY,

                                                            Plaintiff-Appellant,


       versus


JOE BUTLER, in his official and individual
capacity, J. JOHNSON, in his official and
individual capacity, et al.,

                                                            Defendants-Appellees.

                        ----------------------------------------------
                      Appeal from the United States District Court
                          for the Southern District of Florida
                        ----------------------------------------------
                                    (August 23, 1999)


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

RICHARD MILLS, Senior District Judge:



       *
         Honorable Richard Mills, Senior U. S. District Judge for the Central District of Illinois,
sitting by designation.
      This appeal raises two issues, one of which is an issue of first impression in this

Circuit.

      The first issue raised is whether the “three strikes” in forma pauperis provision

of 28 U.S.C. § 1915(g) violates the United States Constitution’s guarantee against ex

post facto laws.

      The second issue raised--the one which is of first impression--is what showing

must a prisoner with three strikes against him make in order to be allowed to proceed

in forma pauperis because he is in imminent danger of serious physical injury.

      We affirm.

                                 I. BACKGROUND

      Daniel C. Medberry is an inmate in the Florida Department of Corrections who

is serving a 27 year prison sentence for sexual battery. Upon arriving at the

Everglades Correctional Institute on August 22, 1996, Medberry informed the prison

officials of his concern of being placed in the prison’s general population.

Specifically, Medberry advised the prison officials that because his offense of

conviction was considered to be “repugnant” by the other inmates, he feared for his

physical safety if he were to be placed in the prison’s general population.

      Nevertheless, the prison officials placed Medberry in the prison’s general

population, and as predicted by Medberry, he was verbally abused and harassed by the


                                           2
other inmates. The inmate’s verbal assaults against Medberry, however, became

physical on December 6, 1996, when members of the “Latin Kings” gang physically

assaulted him and when the gang’s leader threatened him with a “blade.” Medberry

reported the incident to the prison officials, and that same day, the prison officials

placed him in administrative confinement.

      After exhausting all of his administrative remedies, Medberry filed suit on

February 6, 1997, in the United States District Court for the Southern District of

Florida pursuant to 42 U.S.C. § 1983 against four prison officials, Joe Butler, J.

Johnson, R. Ashley, and Carl Berry, in their individual and official capacities, alleging

that these four individuals acted with deliberate indifference for his safety in violation

of the Eighth Amendment by placing him in the prison’s general population.

Medberry also alleged that he had been in administrative confinement since December

6, 1996. Along with his Complaint, Medberry filed a motion to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915.

      On February 10, 1997, United States Magistrate Judge Charlene H. Sorrentino

entered a report and recommendation recommending that Medberry’s Complaint be

dismissed pursuant to 28 U.S.C. § 1915(g) because he had filed three or more suits

which had been dismissed as frivolous, malicious, or failed to state a cause of action

upon which relief may be granted and because he had failed to allege that he was


                                            3
under imminent danger of serious physical injury. Medberry filed objections to

Magistrate Judge Sorrentino’s report and recommendation, and on March 11, 1997,

United States District Judge Ursula Ungaro-Benages denied his objections and

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

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

1998, the district court allowed Medberry’s motion to proceed in forma pauperis on

appeal. See Choyce v. Dominguez, 160 F.3d 1068, 1071 (5th Cir. 1998)(noting the

seeming incongruity in the district court’s denying a prisoner’s motion to proceed in

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

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

                                   II. ANALYSIS

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

      In no event shall a prisoner bring a civil action or appeal a judgment in
      a civil action or proceeding under this section if the prisoner has, on 3 or
      more prior occasions, while incarcerated or detained in any facility,
      brought an action or appeal in a court of the United States that was
      dismissed on the grounds that it is frivolous, malicious, or fails to state
      a claim upon which relief may be granted, unless the prisoner is under
      imminent danger of serious physical injury.

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

reasons, a court must dismiss the prisoner’s case.

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


                                           4
being frivolous, malicious, or for failing to state a cause of action upon which relief

may be granted. Rather, Medberry argues that the cases which were dismissed should

not be considered in determining whether he may proceed in forma pauperis pursuant

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

effective date1 of the Prison Litigation Reform Act (“PLRA”) which imposed the three

strikes rule. As such, Medberry asserts that considering those cases would violate the

United States Constitution’s guarantee against ex post facto laws.

      However, this Court has recently held that the three strikes in forma pauperis

provision of 28 U.S.C. § 1915(g) passes constitutional muster. Rivera v. Allin, 144

F.3d 719, 721 (11th Cir. 1998). Specifically, this Court has held that § 1915(g)’s

language makes it clear that the three strikes rule applies to claims dismissed prior to

the effective date of the PLRA. Id. at 728-30 (citing cases). Accordingly, Medberry’s

ex post facto argument is without merit. See also Wilson v. Yaklich, 148 F.3d 596,

606 (6th Cir. 1998)(holding that § 1915(g) does not violate the Constitution’s Ex Post

Facto Clause).

      Alternatively, Medberry argues that he falls within § 1915(g)’s exception to the

three strikes rule because he is under imminent danger of serious physical injury.

Medberry asserts that in his Complaint, he alleged that he feared for his life if he were


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

                                             5
forced to go onto the compound at the Everglades Correctional Institution. Therefore,

Medberry claims that he has properly alleged an ongoing danger which satisfies §

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

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

proceed in forma pauperis because he is in imminent danger of serious physical injury

is an issue of first impression in this Circuit. The three circuit courts which have

addressed this issue have reached three different conclusions. In Gibbs v. Roman, 116

F.3d 83 (3rd Cir. 1997), the Third Circuit held “that the proper focus when examining

an inmate’s complaint filed pursuant to § 1915(g) must be the imminent danger faced

by the inmate at the time of the alleged incident, and not at the time the complaint was

filed.” Id. at 86.

       On the other hand, the Eighth Circuit held in Ashley v. Dilworth, 147 F.3d 715

(8th Cir. 1998), that “an otherwise ineligible prisoner is only eligible to proceed IFP

if he is in imminent danger at the time of filing. Allegations that the prisoner has

faced imminent danger in the past are insufficient to trigger this exception to §

1915(g) and authorize the prisoner to pay the filing fee on the installment plan.” Id.

at 717 (emphasis in original). Finally, the Fifth Circuit has held that

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

                                           6
      proceed IFP.

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

      We agree with both the Fifth and the Eighth Circuits that the clear language of

§ 1915(g) establishes that the Third Circuit’s approach is incorrect. Congress’ use of

the present tense in § 1915(g) confirms that a prisoner’s allegation that he faced

imminent danger sometime in the past is an insufficient basis to allow him to proceed

in forma pauperis pursuant to the imminent danger exception to the statute. See

Ashley, 147 F.3d at 717 (holding that “the statute’s use of the present tense verbs

`bring’ and `is’ demonstrates, an otherwise ineligible prisoner is only eligible to

proceed IFP if he is in imminent danger at the time of filing. Allegations that the

prisoner has faced imminent danger in the past are insufficient to trigger this exception

to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan.”);

see also Baños, 144 F.3d at 885 (holding that “the language of § 1915(g), by using the

present tense, clearly refers to the time when the action or appeal is filed or the motion

for IFP status is made.”).

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

is the proper standard to adopt because, in the instant case, Medberry has failed to

meet either standard. The only allegations which Medberry makes in his Complaint

that he was in imminent danger of serious physical injury were the alleged events


                                            7
which formed the basis for his Complaint. This threat, however, had ceased prior to

the filing of his Complaint, and nothing therein may properly be construed as

constituting an allegation that he was in imminent danger of serious physical injury

at the time he filed his Complaint or that he was in jeopardy of any ongoing danger.

As such, Medberry may not proceed in forma pauperis because he has “three strikes”

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

imminent danger exception.2

       Finally, contrary to Medberry’s argument, the district court did not err by

failing to give him the opportunity to amend his Complaint prior to dismissing it with

prejudice.     Shortly after his Complaint was filed the Florida Department of

Corrections transferred him to another facility. Therefore, allowing Medberry to

amend his Complaint would have been futile because he could not have alleged that

he was in imminent danger of serious physical injury by being placed in the general

population at the Everglades Correctional Institute. Burger King Corp. v. C. R.

Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999)(noting that futility is an adequate basis

for denying leave to amend).

                                     III. CONCLUSION


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

                                                8
      Therefore, the district court’s decision to deny Medberry in forma pauperis

status pursuant to 28 U.S.C. § 1915(g) is AFFIRMED.




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