Abdul-Akbar v. McKelvie , 239 F.3d 307 ( 2001 )


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  •                                                                                                                            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    Precedential or Non-Precedential: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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    http://digitalcommons.law.villanova.edu/thirdcircuit_2001/16
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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
    665constitutional 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, 36
    5 U.S. 1
    67, 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).
    44
    

Document Info

Docket Number: 98-7307

Citation Numbers: 239 F.3d 307, 2001 WL 76277

Judges: Becker, Alito, Aldisert, Nov, Sloviter, Mansmann, Scirica, Nygaard, Roth, McKee, Rendell, Barry, Ambro, Fuentes

Filed Date: 1/29/2001

Precedential Status: Precedential

Modified Date: 11/4/2024

Authorities (57)

Ashwander v. Tennessee Valley Authority , 56 S. Ct. 466 ( 1936 )

Burns v. Ohio , 79 S. Ct. 1164 ( 1959 )

Howlett Ex Rel. Howlett v. Rose , 110 S. Ct. 2430 ( 1990 )

United States v. Ron Pair Enterprises, Inc. , 109 S. Ct. 1026 ( 1989 )

Negonsott v. Samuels , 113 S. Ct. 1119 ( 1993 )

Johnson v. Hill , 965 F. Supp. 1487 ( 1997 )

Lyon v. Vande Krol , 940 F. Supp. 1433 ( 1996 )

Yick Wo v. Hopkins , 6 S. Ct. 1064 ( 1886 )

Arthur X. Carson v. Gary L. Johnson, Director, Texas ... , 112 F.3d 818 ( 1997 )

Renato P. Mariani v. United States of America, Federal ... , 212 F.3d 761 ( 2000 )

bp-chemicals-ltd-an-english-corporation-v-formosa-chemical-fibre , 229 F.3d 254 ( 2000 )

Jerardo Rodriguez v. David Cook, Director, Oregon State ... , 169 F.3d 1176 ( 1999 )

Smith v. Bennett , 81 S. Ct. 895 ( 1961 )

Hughes Aircraft Co. v. United States Ex Rel. Schumer , 117 S. Ct. 1871 ( 1997 )

frederick-lamar-harris-danny-chadwick-v-wayne-garner-commissioner-of-the , 216 F.3d 970 ( 2000 )

Rivera v. Allin , 144 F.3d 719 ( 1998 )

In Re Lonzy Oliver. Appeal of Lonzy Oliver , 682 F.2d 443 ( 1982 )

Dr. Emory M. Ghana v. J. T. Holland , 226 F.3d 175 ( 2000 )

Caminetti v. United States , 37 S. Ct. 192 ( 1917 )

Johnson v. Avery , 89 S. Ct. 747 ( 1969 )

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