                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
___________

Nos. 96-3752
___________

Everett R. Lyon,                        *
                                        *
      Plaintiff - Appellee,             *
                                        *
            v.                          *
                                        *
Del Vande Krol; Paul Hedgepeth;         *
James Helling; Rabbi Jacobson;          *
Chavbad Lubavitch IA,                   *
                                        *
      Defendants - Appellants,          *
                                        *
United States of America,               *
                                        *
     Intervenor Defendant.              *
___________
                                            Appeals from the United States
Nos. 96-3754                                District Court for the
___________                                 Southern District of Iowa.

Everett R. Lyon,                        *
                                        *
      Plaintiff - Appellee,             *
                                        *
            v.                          *
                                        *
Del Vande Krol; Paul Hedgepeth;         *
James Helling; Rabbi Jacobson;          *
Chavbad Lubavitch IA,                   *
                                        *
      Defendants,                       *
                                        *
United States of America,               *
                                        *
      Intervenor Defendant - Appellant. *
                                 ___________

                              Submitted: May 20, 1997
                                  Filed: October 17, 1997
                                   ___________

Before MURPHY and HEANEY, Circuit Judges, and ROSENBAUM,1 District Judge.
                           ___________

MURPHY, Circuit Judge.

       The district court dismissed the 42 U.S.C. § 1983 action of Everett R. Lyon, an
Iowa prisoner, for failure to pay the filing fee required by § 804(d) of the Prisoner
Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321, §§ 801-810 (Apr.
26, 1996) (to be codified at 28 U.S.C. § 1915(g)), but on reconsideration it concluded
that the section is unconstitutional and reinstated the action with leave for Lyon to
request in forma pauperis status. The state defendants filed a petition requesting review
of the district court's decision that section 1915(g) violated Lyon's right to equal
protection because it deprived him of court access, and their request for interlocutory
review was granted.

       Lyon brought this action against Iowa prison officials and Chavbad Lubavitch,2
alleging that they prevented him from practicing his religion in violation of 42 U.S.C.
§ 1983. He requested damages and equitable relief, including permission to participate



      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
      2
       Chavbad Lubavitch has since been dismissed as a defendant.
                                          -2-
in Jewish services and community meals and to purchase Kosher food. Lyon had
previously filed some twelve other civil actions while in prison, four of which had been
dismissed as frivolous.3 When Lyon filed this complaint in May 1996, he had $138.40
in his prison account and $64.52 in his prison savings account and was receiving
$67.20 in prison wages each month. His initial request for in forma pauperis status
was denied because he had at least three prior actions which had been dismissed as
frivolous and section 1915(g) therefore requires full payment of the filing fee unless the
prisoner is in "imminent" physical danger.

        After Lyon moved for reconsideration on the basis of constitutional challenges,
the United States intervened to uphold the statute. The district court concluded that the
statute violated Lyon's equal protection rights in that it burdened his fundamental right
to court access and strict scrutiny revealed that the provision was not narrowly tailored
to prevent abusive prisoner litigation since it only curbs repeat litigation by prisoners
who can not afford the filing fee and does not take into account the varying sentences
and circumstances of different prisoners.

        The United States and Iowa prison officials argue in response that section
1915(g) does not violate Lyon's equal protection rights. They contend that the district
court erred in applying strict scrutiny because the statute does not burden a fundamental
right and prisoners and indigents are not suspect classes. They also assert that section
1915(g) is rationally related to the legitimate government interest of preventing abusive
litigation.


      3
        At oral argument, counsel indicated that one of Lyon's prior dismissals had
resulted from a letter sent to the district court which had been assigned a file number
and then dismissed. Because of our disposition of this appeal, we do not have occasion
to consider what type of prior dismissal may legitimately be counted under § 1915(g).
We take judicial notice of the fact that some courts now notify prisoners when a
seemingly frivolous complaint is filed that it could count against them in the future, and
permit them an opportunity to dismiss it voluntarily.

                                           -3-
        Congress enacted PLRA with the principal purpose of deterring frivolous
prisoner litigation by instituting economic costs for prisoners wishing to file civil
claims. See, e.g., H.R. Conf. Rep. No. 104-378, at 166-67 (1995); 141 Cong. Rec.
S14626 (daily ed.) (Sept. 29, 1995) (statement of Sen. Dole). The in forma pauperis
statute now requires all prisoners to pay court filing fees for civil cases. It differentiates
among prisoners on method of payment, however. Prisoners who have not had three
prior cases dismissed as frivolous need only pay a percentage of the fee at the outset
and the remainder over time, and these litigants will not be barred from pursuing a
claim by inability to make the initial required partial payment. 28 U.S.C. § 1915(b)(1)-
(4). In contrast, section 1915(g), commonly known as 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.
They otherwise cannot proceed on their claim unless they are "under imminent danger
of serious physical injury." 28 U.S.C. § 1915(g). The section states:

              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.

28 U.S.C. § 1915(g).

        Since the enactment of PLRA, a number of circuits have examined the
constitutionality of its provisions. They have concluded that its fee requirements do not
employ suspect classifications, deprive prisoners of the right to court access, or violate
rights to equal protection. See, e.g., Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir.



                                             -4-
1997) (citations omitted) (section 1915(g)); Hampton v. Hobbs, 106 F.3d 1281, 1286-
87 (6th Cir. 1997); Roller v. Gunn, 107 F.3d 227, 233-34 (4th Cir. 1997) (citations
omitted). Several have also concluded that the fee requirements of PLRA do not have
an impermissible retroactive effect, e.g., Mitchell v. Farcass, 112 F.3d 1483, 1487 (11th
Cir. 1997), including where the triggering three dismissals occurred before the passage
of the statute. E.g., Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996); Green
v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).

     In order for Lyon to raise his constitutional challenge to section 1915(g) he must
show that he has standing. Allen v. Wright, 468 U.S. 737, 750 (1984). The core
component of standing is that the "plaintiff must allege personal injury fairly traceable"
to the challenged action. Id. at 751. In the context of alleging an unconstitutional
burden on the right of access to court, it is not sufficient for standing to show that court
access could be impeded. Rather, a prisoner must show that it actually has been. Lewis
v. Casey, 116 S. Ct. 2174, 2179 (1996).

       Lyon has not shown that the fee requirements imposed by PLRA have deprived
him of his access to court. The record shows that Lyon had sufficient funds to pay the
filing fee. Reasonable costs may be imposed on persons who want to sue without
unconstitutionally burdening the right to court access. Lumbert v. Illinois Dep't of
Corrections, 827 F.2d 257, 259 (7th Cir. 1987). There is no constitutional requirement
that court fees always be waived if a litigant is indigent. See e.g., United States v.
Kras, 409 U.S. 434, 450 (1973); but see M.L.B. v. S.L.J., 117 S. Ct. 555, 560-64,
569-70 (summarizing cases where court fees must be waived if they prevent litigants
from vindicating basic fundamental rights). At the time Lyon filed his complaint, he
had over $180 in his prison accounts and was receiving $67.20 in prison wages each
month. This is more than the $120 then required as a filing fee. Lyon has most of his
basic necessities provided as a prisoner, and payment of the fee would not have forced
him to go without these essentials. He would still have had over $60 remaining after
paying the fee; that amount and his monthly wages would have been available to

                                            -5-
purchase other necessary incidentals. Cf. Myers v. Hundley, 101 F.3d 542, 544 (8th
Cir. 1996).

       Section 1915(g) does not prohibit prisoners from pursuing legal claims if they
have had "three strikes" or three prior dismissals. It only limits their ability to proceed
in forma pauperis. Lyon is thus free to pursue his action if he pays the required fees,
and section 1915(g) has not caused an actual injury to him because he was not without
the necessary resources to bring his claim to court. 4

       Since Lyon has not shown that section 1915(g) has caused an actual injury, he
does not have standing to assert that this deprivation violates his right to equal
protection.5 We therefore do not have jurisdiction to consider the constitutional issues
raised, and the appeal must be dismissed.


       4
         The dissent characterizes Lyon's claim as "precisely the type of fundamental
rights claim for which we have vigilantly guarded a prisoner's access to the courts," but
the record reveals very little about the nature of the claim because the proceedings in
the district court to this point have related only to preliminary issues, not to the merits.
If the case had been further developed and an appeal taken in the regular course, we
would have a fuller record. The lack of a developed record is of course one of the
problems associated with interlocutory appeals.

        The dissent also cites cases, decided before the passage of PLRA, for the
proposition that a prisoner should not be precluded from in forma pauperis status just
because he has some minimal financial resources available. Section 1915(g) does not
restrict in forma pauperis status on the basis of the prisoner's resources, but because the
prisoner has previously filed several frivolous cases. We need not reach the
constitutional issues raised by Lyon under the particular facts presented because his
access to court has not been foreclosed.
       5
       Lyon also asserted in the district court that § 1915(g) violated due process and
had an impermissible retroactive effect because it changed the legal consequences of
previous dismissals; the district court concluded the statute was not retroactive and did
not have notice problems.

                                            -6-
       The interlocutory appeal is dismissed, and the case is remanded so that the
district court may set a time by which Lyon must pay the filing fee or have his
underlying first amendment claim dismissed.

HEANEY, Circuit Judge, dissenting.

       I respectfully dissent. I would affirm the district court’s well-reasoned opinion
holding unconstitutional section 1915(g) of the PLRA, which requires a prisoner
bringing a civil claim to pay a filing fee regardless of his ability to qualify for in forma
pauperis status. As the majority points out, the district court based its holding on the
fact that section 1915(g) violates Lyon’s equal protection rights by burdening Lyon’s
fundamental right of access to the courts. There is no question that the provision does
so. The purported purpose of section 1915(g) is to curtail the number of frivolous suits
brought by prisoners by requiring that prisoners who have had three or more prior
claims dismissed must pay court filing fees whether or not the prisoner qualifies for in
forma pauperis status. Nonprisoners do not face such a requirement, nor does the
provision differentiate between the sentences and circumstances of the individual
prisoners who would file such claims.

       The panel decision avoids this issue altogether by focusing instead on whether
Lyon would be entirely bankrupted by paying the filing fee. The panel holds that a lack
of complete impoverishment prevents Lyon from having standing to challenge the
PLRA’s effect on his constitutional rights. The panel’s requirement that Lyon must be
completely broke to have standing is simply not the law of our circuit, and such a
requirement violates the same equal protection principles as section 1915(g) itself: if
a nonprisoner may challenge a statute under in forma pauperis status, a prisoner should
not have a higher burden (i.e., demonstrate complete destitution) to bring such a
challenge. Lyon has clearly demonstrated that section 1915(g) has blocked his access
to the courts to bring his religious practices claim: he qualified for in forma pauperis
status as it is determined for nonprisoners; he attempted to bring a pro se action under

                                            -7-
42 U.S.C. § 1983; and prior to Lyon’s challenge to the provision’s constitutionality, the
court below dismissed the action pursuant to section 1915(g).

       To show he suffered a “fairly traceable personal injury,” Lyon need not, as the
majority suggests, spend his last nickel to bring the claim where nonprisoners face a
less onerous requirement. We held in In re Williamson, 786 F.2d 1336 (8th Cir. 1986),
that even though an inmate is assured of the basic necessities of life at the state’s
expense, “an inmate should not be denied in forma pauperis status simply because he
may be able to pay for some small physical and material comforts . . . within the
prison.” Id. at 1339. We based our holding in Williamson on the principle that “‘[w]e
cannot accept a construction of [section 1915] which conditions the presentation of
possibly meritorious claims on the plaintiff’s willingness to become completely
destitute.’” Id. at 1338 (quoting In re Smith, 600 F.2d 714, 715 (8th Cir. 1979)); see
also Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (“We cannot
agree . . . that one must be absolutely destitute to enjoy the benefit of the [in forma
pauperis] statute.”). Lyon has met his burden to show he has standing to challenge
section 1915(g).

       Lyon has also shown that section 1915(g) violates prisoners’ equal protection
rights. Although it is true that the number of suits brought by prisoners has increased,
there is no indication that the increase has significantly out-paced the increase in the
number of people incarcerated in this country nor have the reasons for the increase in
claims been established.6 In any case, prisoners continue to bring legitimate claims
amid the large number of claims the courts dismiss as frivolous or failing to state a
cognizable claim. See Hon. Jon O. Newman, Pro Se Prisoner Litigation: Looking for
Needles in Haystacks, 62 Brook. L. Rev. 519, 519-21 (1996) (citing important victories

      6
       A list of reasons for any increase in the number of complaints over a simple
increase in the number of prisoners would likely include the high incidence of prison
overcrowding, a lack of carefully trained correctional officers, and inadequate and
frequently unfair internal grievance procedures.

                                          -8-
won by prisoners through judicial claims regarding prison conditions). In passing
section 1915(g), 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, e.g.,
141 Cong. Rec. S14611, 626 (daily ed. Sept. 29, 1995) (statement of Sen. Dole) (stating
that section 1915(g) establishes procedures so that prisoners, “like law-abiding citizens,
will have to pay the court fees associated with filing a lawsuit”). However, the
provision has the opposite effect. Instead of being subjected to the same rules as
nonprisoners, inmates who would otherwise qualify for in forma pauperis status must
now pay the filing fees up front.

        Although prisoners are not a suspect class for the purpose of determining the
proper standard of equal protection review, access to the courts is a fundamental right7
that remains with an individual even after incarceration. Burton v. Livingston, 791 F.2d
97, 100 (8th Cir. 1986). Although a prisoner forfeits some rights, a prisoner does not
lose all of his rights. Id. Rather, the prisoner’s fundamental rights follow him “through
the prison gate, and the walls do not foreclose his access to the courts to protect those
rights.” Id. (citing Courtney v. Bishop, 409 F.2d 1185, 1187 (8th Cir. 1969)). Lyon’s
claim that he suffered a violation of his religious freedom is precisely the type of
fundamental rights claim for which we have vigilantly guarded a prisoner’s access to the
courts.

      Because section 1915(g) affects a fundamental right, we must review the statute
under a “strict scrutiny” standard. Stiles v. Blunt, 912 F.2d 260, 263 (8th Cir. 1990).
Under strict scrutiny, we uphold a classification only if it is narrowly drawn to serve a
“compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 216-17 (1982). The
government must prove that it has a compelling interest in the classification it has
selected. Stiles, 912 F.2d at 263. The government might show that curtailing the
number of claims flooding the courts is a compelling government interest. Even so, it

      7
       See Wolff v. McDonnell, 418 U.S. 539, 578-79 (1974).

                                           -9-
cannot show that the classification of potentially frivolous claims into “prisoner” and
“nonprisoner” claims is necessary or even effective in addressing the problem. In this
regard, the panel decision fails to explain the necessity in classifying prisoners like Lyon
differently for the purpose of qualifying for in forma pauperis status. For these reasons
I reject the panel opinion’s conclusion that Lyon is without standing to challenge section
1915(g), and I would affirm the district court’s determination that the provision is
unconstitutional.

       A true copy.

              Attest.

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




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