Asemani v. United States Citizenship & Immigration Services ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2015 Decided August 7, 2015
No. 13-5362
BILLY G. ASEMANI,
APPELLANT
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,
USCIS, A BRANCH OF THE U.S. DEPARTMENT OF HOMELAND
SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-02268)
Kwaku A. Akowuah, appointed by the court, argued the
cause for appellant. With him on the briefs were Jeffrey T.
Green and Tobias S. Loss-Eaton, appointed by the court.
Wynne P. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney at the time the brief was filed, and
R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS, TATEL and SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
2
SRINIVASAN, Circuit Judge: Billy G. Asemani is an
inmate in the Western Correctional Institution in Cumberland,
Maryland. After United States Citizenship and Immigration
Services (USCIS) denied Asemani’s application for
naturalization, he filed a mandamus petition seeking to
compel the agency to grant him a hearing to review the denial.
Asemani initially obtained leave from the district court to
pursue his petition in forma pauperis (IFP). But the court
subsequently concluded that Asemani could not proceed IFP
because of the so-called “three-strikes rule” set out in the
Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g),
which bars certain prisoners from proceeding IFP if three or
more prior suits have been dismissed on specified grounds.
Asemani now brings this appeal, arguing that he qualifies for
IFP status under the imminent danger exception to the three-
strikes rule, or, alternatively, that the three-strikes rule is
unconstitutional as applied to his case. We reject his
arguments and therefore deny his request to proceed IFP on
appeal.
I.
A.
Congress enacted the PLRA in response to concern that
prisoners were “flooding the courts with meritless claims.”
Chandler v. D.C. Dep’t of Corr., 145 F.3d 1355, 1356 (D.C.
Cir. 1998). The PLRA substantially altered the availability of
IFP status with respect to prisoner suits. See Tucker v.
Branker, 142 F.3d 1294, 1296-97 (D.C. Cir. 1998).
Under the PLRA, all prisoner-litigants must pay filing
fees in full. A prisoner who qualifies for IFP status, however,
need not pay the full filing fee at the time he brings suit. 28
U.S.C. § 1915(a)(1). Rather, he can pay the filing fee in
3
installments over time. Id. § 1915(b). But the PLRA bars
certain prisoners from proceeding IFP under the three-strikes
rule contained in § 1915(g), which reads:
In no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or
proceeding under this section if the prisoner
has, on 3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal in a court of the
United States that was dismissed on the
grounds that it is frivolous, malicious, or fails
to state a claim upon which relief may be
granted, unless the prisoner is under imminent
danger of serious physical injury.
The three-strikes rule thus requires a prisoner who otherwise
qualifies for IFP status to pay the full filing fee at the time of
filing suit rather than in installments. See generally Coleman
v. Tollefson, 135 S. Ct. 1759, 1761-62 (2015).
As the text of the provision indicates, § 1915(g) also
contains an exception to the exception: even if a prisoner has
three strikes, he may proceed IFP—i.e., he may pay the filing
fee in installments—if he is “under imminent danger of
serious physical injury.” That exception “eases any
constitutional tension that might result from denying access to
the courts to prisoners facing life-threatening conditions.”
Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415, 420 (D.C.
Cir. 2009).
B.
Asemani is currently serving a thirty-year sentence in the
Western Correctional Institution in Cumberland, Maryland.
4
While incarcerated, at least three of his suits have been
dismissed on grounds qualifying as “strikes” for purposes of
the three-strikes rule. On December 21, 2011, Asemani filed
a petition for a writ of mandamus in the district court. His
petition seeks an order compelling USCIS to act upon his
request for a hearing concerning the denial of his application
for naturalization. He filed a motion to proceed IFP the same
day. On February 14, 2012, the district court granted that
motion.
On August 10, 2012, the government, citing the three-
strikes rule, moved to vacate the order granting Asemani IFP
status. In response, Asemani conceded that he has three
strikes but argued that he nonetheless qualifies for IFP status
under the imminent danger exception. He explained that he
had suffered “two back-to-back acts of assaults” by other
inmates while in prison. App. 40. As a result of those
assaults, Asemani had been placed in protective custody,
which “requires his placement in a segregated housing unit.”
Id. At the time of Asemani’s response to the government’s
motion to vacate IFP status, he had been in protective custody
for “nearly a year,” id., and anticipated remaining in
protective custody for the “indefinite” future, id. at 41. Even
while in protective custody, he claimed that he faces a
“constant threat of violence because of the maximum security
nature” of his fellow inmates. Id.
The district court granted the government’s motion and
revoked Asemani’s IFP status, ordering him to pay the full
$350 filing fee within thirty days or face dismissal of his case.
Asemani failed to pay the filing fee and his case was
dismissed. Asemani now appeals the district court’s order
vacating IFP status and its order dismissing his case.
Asemani also seeks leave to proceed IFP on appeal.
5
We appointed counsel to argue as amicus curiae in favor
of his position. In lieu of filing his own briefing in this
appeal, Asemani asks us to “construe [amicus’s] filings as
being his position.” Pro Se Appellant’s Mot. For Waiver of
His Obligation to File “Appellant Br.” 3. Accordingly, we
attribute amicus’s arguments to Asemani.
II.
As has been our practice in cases arising in the same
posture, we first consider Asemani’s request to proceed IFP
on appeal. See Smith v. District of Columbia, 182 F.3d 25, 27
(D.C. Cir. 1999). The PLRA’s three-strikes rule applies with
equal force to “a prisoner bring[ing] a[n] . . . appeal,” so
Asemani cannot proceed IFP unless he demonstrates that he is
“under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). The government argues that Asemani
should not be allowed to proceed IFP on appeal “for the same
reasons the district court revoked the privilege below.”
Appellee Br. 45. The court concluded that, for two
independent reasons, Asemani failed to establish eligibility
for the imminent danger exception. First, the court held that
Asemani’s allegations of imminent danger were untimely and
could not be considered. Second, the court determined that,
even if it could consider Asemani’s allegations, he fails to
qualify for the imminent danger exception because the danger
he alleges is unrelated to his underlying mandamus claim.
As to the government’s timeliness argument, the parties
both assume that the timeliness of Asemani’s allegations
before the district court necessarily determines whether those
allegations are timely for purposes of IFP status on appeal.
Even assuming that is true, we conclude that Asemani’s
allegations of imminent danger were timely before the district
court. As to the district court’s second ground for denying
6
IFP status, this court has not resolved whether § 1915(g)
requires that there be some nexus between the imminent
danger alleged and the prisoner’s underlying claim. See
Mitchell, 587 F.3d at 421. We do not resolve that issue in this
case. Instead, we conclude that Asemani is barred from
proceeding IFP on appeal because his allegations fail to make
out the requisite imminent danger.
A.
Asemani’s allegations of imminent danger first appeared
in his pro se opposition to the government’s motion to revoke
his IFP status. The district court concluded that those
allegations could not be considered. Asemani, the court held,
was required to include those allegations in his complaint or
in his motion for IFP status. The government, agreeing with
the district court, argues that we therefore should decline to
consider Asemani’s allegations of imminent danger. We are
unconvinced.
It is well established that a prisoner seeking to proceed
IFP need not affirmatively plead compliance with § 1915(g)’s
three-strikes rule. The PLRA sets forth numerous pleading
requirements for prisoners seeking IFP status, see, e.g., 28
U.S.C. § 1915(a)(1)-(2), and compliance with § 1915(g) is not
among them. “[H]ad Congress intended to require prisoners
to affirmatively show that they were not subject to the three-
strikes provision, it would have included that requirement in
the list of requirements prisoners must address in order to
obtain IFP status.” Thompson v. DEA, 492 F.3d 428, 434
(D.C. Cir. 2007) (internal quotation marks and ellipses
omitted). If a prisoner is not required preemptively to negate
the three-strikes rule in a motion for IFP status, it makes little
sense to think he nevertheless would need preemptively to
present facts establishing an exception to that rule.
7
Our precedent does not suggest otherwise. To be sure,
we have held that § 1915(g) places certain temporal
constraints on the facts that may be considered in evaluating
whether a prisoner faces imminent danger. The text of the
PLRA dictates that a prisoner with three strikes cannot seek
IFP status to “bring a civil action . . . unless the prisoner is
under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g) (emphasis added). Section 1915(g)’s use of the
present tense and its concern with the initial step of bringing
the action indicates that the exception applies only if the
danger existed at the time the prisoner filed his complaint.
Pinson v. Samuels, 761 F.3d 1, 5 (D.C. Cir. 2014); see
Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir.
2007). In other words, the availability of the imminent danger
exception turns on “whether the prisoner ‘is under imminent
danger of serious physical injury’ when he ‘bring[s]’ his
action,” not “whether he later in fact suffers” (or earlier
suffered) such a threat. Pinson, 761 F.3d at 5 (quoting 28
U.S.C. § 1915(g)).
We have never held, though, that a prisoner’s allegations
about the conditions he faces at the time “he ‘bring[s]’ his
action,” id., must be made in any particular type of filing.
While certain of our decisions have described a prisoner’s
allegations by reference to the specific document in which he
happened to have made those allegations, that language was
merely descriptive, not prescriptive. In Pinson v. Samuels, for
example, we held that the imminent danger inquiry turns on
“the alleged danger at the time [the prisoner] filed his
complaint,” and thus we looked “only to the documents
attesting to the facts at that time, namely his complaint and
the accompanying motion for IFP status.” Id. (first alteration
in original). While it is descriptively true that the only
“documents attesting to the facts” at the time Pinson filed his
complaint were the “complaint and the accompanying motion
8
for IFP status,” the operative question under § 1915(g) is
always whether some timely filing avers facts suggesting a
prisoner was “under imminent danger of serious physical
injury” at the time he “br[ought]” his complaint. 28 U.S.C.
§ 1915(g). Here, Asemani’s response to the government’s
motion to vacate IFP status “attest[ed] to the facts” in
existence at the time he filed this action. Pinson, 761 F.3d at
5. We therefore conclude that those allegations were timely
before the district court.
B.
We must determine whether the facts alleged by Asemani
demonstrate that he faced “imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g); see Pinson, 761 F.3d
at 4. The parties, relying on our approach in prior decisions,
see Pinson, 761 F.3d at 4-5; Mitchell, 587 F.3d at 420, assume
that the conditions faced by a prisoner when initially filing
suit in the district court determine the applicability of the
imminent danger exception on appeal. Whether the relevant
conditions are those at the time of bringing the action in
district court or instead those at the time of bringing the
appeal, the distinction makes no difference in this case.
Nothing in the record suggests that Asemani’s conditions
have changed in any way between the time he filed his
complaint and the time he filed this appeal. We therefore
assess whether he qualifies for the imminent danger exception
on appeal based on the allegations he submitted to the district
court when seeking to proceed IFP below. In conducting that
inquiry, we accept his factual allegations as true. Ibrahim v.
District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006).
According to those allegations, at the time Asemani filed
this action, he was “housed under protective custody status.”
App. 40. Protective custody status “requires his placement in
9
a segregated housing unit.” Id. Asemani’s placement in
protective custody, he explains, came about because of “two
back-to-back acts of assaults on him by other inmates.” Id.Those assaults apparently occurred because “Asemani has
many inmate enemies” in prison. Id. at 41. Asemani further
claims that, even under protective custody, he is “faced with a
constant threat of violence because of the maximum security
nature of the other inmates[,] . . . many of whom are serving
life sentences.” Id.Those allegations, we conclude, are materially
indistinguishable from allegations this court has previously
deemed insufficient to establish “imminent danger.” In
Mitchell v. Federal Bureau of Prisons, the prisoner alleged
that, “even though BOP knew he had testified for the
government, it illegally transferred him” to “a prison known
for murders and assaults on . . . anyone who has been known
as a snitch, and where he was nearly murdered in October
2003.” 587 F.3d at 420-21 (internal quotation marks
omitted). We found Mitchell’s allegations inadequate to
demonstrate “that the danger he face[d] [wa]s imminent.” Id.
at 421. Even though Mitchell alleged that he had suffered a
violent assault in the past, that assault took place seventeen
months before he filed his action. That the prison was
generally dangerous and was “known for murder and
assaults” on known “snitches” like Mitchell, we determined,
was also insufficient to demonstrate that he faced an ongoing
threat of imminent danger. Id. at 420-21.
We reached the same conclusion in Pinson. Pinson
claimed that, “as a homosexual and former gang member, his
designation to [a special unit of the prison] alongside
members of rival gangs placed him in imminent danger of
death or serious bodily injury.” Pinson, 761 F.3d at 5. We
held that Pinson’s allegations of danger, like those in
10
Mitchell, failed to demonstrate that the danger he faced was
imminent. Id. We therefore denied Pinson’s motion for IFP
status on appeal. Id. at 5-6.
The facts alleged by Asemani are materially
indistinguishable from those presented in Mitchell and
Pinson. While Asemani alleges that he suffered two beatings
in the past, he also alleges that, as a result of those beatings,
he was moved into protective custody. The beatings, which
took place while Asemani was in the general prison
population, do not indicate that Asemani continued to face
imminent danger at the time he filed his complaint—i.e., after
he had been moved into protective custody. And he makes no
allegation that he has suffered any beatings or received
specific threats while in protective custody. Rather, he
alleges a generic “threat of violence” due to the “maximum
security nature of other inmates” housed in the prison
population. App. 41.
Asemani also alleges that he might face added danger—
perhaps even in protective custody—because he has “inmate
enemies.” Id. But that allegation is no stronger than the ones
we deemed insufficient in Pinson and Mitchell: Mitchell and
Pinson effectively alleged that they had “enemies” in prison
due to certain characteristics they possessed. Just as in
Pinson and Mitchell, Asemani’s allegations with respect to
the danger he faced in protective custody are insufficient for
us to conclude he faces an imminent danger.
Asemani’s allegations, moreover, fall considerably short
of the circumstances courts have deemed adequate to
demonstrate “imminent danger.” The Ninth Circuit, for
example, recently held that an inmate established imminent
danger when she alleged that she had been “receiving
constant, daily threats of irreparable harm, injury and death”
11
due to rumors allegedly started by prison officials. Williams
v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). Similarly,
the Second Circuit observed that “[a]n allegation of a recent
brutal beating, combined with three separate threatening
incidents, some of which involved officers who purportedly
participated in that beating, is clearly the sort of ongoing
pattern of acts that satisfies the imminent danger exception.”
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Here,
by contrast, Asemani’s principal allegation is that a
background threat inheres in his placement in a certain
population. Unlike the prisoners in Williams and Chavis, he
does not identify a particular recent threat (or pattern of
threats) substantiating a danger that is sufficiently “imminent”
under § 1915(g).
III.
Because we conclude that the three-strikes rule bars
Asemani from proceeding IFP on appeal, we must address his
contention that the rule is unconstitutional as applied to his
case. The Supreme Court has held that, in certain situations, a
litigant is constitutionally entitled to a waiver of filing fees.
The primary circumstance in which the Constitution requires
waiver of court fees is when an indigent person challenges his
criminal conviction. See Griffin v. Illinois, 351 U.S. 12, 17-
18 (1956). Outside the criminal context, the Supreme Court
has recognized only “a narrow 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). Asemani asserts that the
action he brings falls within that “narrow category of civil
cases” because it involves an important interest—a claim of
right to naturalized United States citizenship. Because the
PLRA’s three-strikes rule would effectively deny him the
12
ability to vindicate that interest, he argues, the statute is
unconstitutional as applied to his case.
Even assuming arguendo that the PLRA’s three-strikes
rule might raise constitutional concerns when a prisoner seeks
access to the courts to vindicate certain fundamental rights,
see Thomas v. Holder, 750 F.3d 899, 909 (D.C. Cir. 2014)
(Tatel, J., concurring), we conclude that this is not such a
case. The Supreme Court has cautioned repeatedly that “a
constitutional requirement to waive court fees in civil cases is
the exception, not the general rule.” M.L.B., 519 U.S. at 114
(citing United States v. Kras, 409 U.S. 434 (1973)). The
Court has recognized such a requirement only in a handful of
cases involving “state controls or intrusions on family
relationships.” Id. at 116. Those cases differ from “the mine
run of [civil] cases,” according to the Court, because
“[c]hoices about marriage, family life, and the upbringing of
children are among associational rights [the] Court has ranked
as ‘of basic importance to our society.’” Id. (quoting Boddie
v. Connecticut, 401 U.S. 371, 376 (1971)).
Apart from that context, however, the Court has
consistently rejected claims that other important interests
merit the same constitutional treatment. For example, the
Court has held that securing bankruptcy discharge in order to
obtain a “desired new start in life” is an “important” interest,
but does “not rise to the same constitutional level” as averting
state intrusions into family life. Kras, 409 U.S. at 444-45.
The Court has likewise rejected a claim of constitutional
entitlement to a waiver of filing fees in connection with a
challenge to the termination of welfare benefits. Ortwein v.
Schwab, 410 U.S. 656 (1973) (per curiam).
Asemani argues that his action asserting “a claim of right
to U.S. citizenship and a concomitant right against removal to
13
Iran,” Amicus Br. 40, should be added to the “narrow
category of civil cases” in which access to the courts must be
guaranteed regardless of a party’s ability to pay, M.L.B., 519
U.S. at 113. But Asemani points to no case in which a court
has recognized an alien’s claim of right to the grant of
naturalized citizenship to be on par with the claimed right to
avoid “state controls or intrusions on family relationships”
discussed by the Supreme Court in M.L.B. Id. at 116.
Instead, Asemani relies on Trop v. Dulles, 356 U.S. 86 (1958)
(plurality op.). In that case, the Court suggested that a native-
born United States citizen has a “fundamental right” to retain
his citizenship as long as he does not “voluntarily renounce or
abandon” it. Id. at 93. But Trop and other such cases speak
to the government’s ability to revoke a citizen’s citizenship,
however acquired. See, e.g., Fedorenko v. United States, 449
U.S. 490, 505-06 (1981); Afroyim v. Rusk, 387 U.S. 253, 267-
68 (1967). There is no argument here that Asemani’s
citizenship or immigration status has been revoked or altered
by USCIS. In fact, the argument is the opposite—Asemani is
an alien who believes that USCIS erred when it failed to alter
his immigration status through the naturalization process.
We are aware of no case suggesting that an alien has the
sort of fundamental right associated with obtaining
naturalized citizenship status that would qualify for a
constitutional entitlement to a fee waiver under the Supreme
Court’s decision in M.L.B. To the contrary, the naturalization
process lacks many of the indicators the Court has found
important in delimiting the “narrow 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.,
519 U.S. at 113. Unlike the interests at issue in M.L.B. and
Boddie v. Connecticut, 401 U.S. 371, Asemani’s interest in
obtaining citizenship through naturalization does not involve
state-imposed “controls or intrusions on family relationships.”
14
M.L.B., 519 U.S. at 116. Nor is the naturalization process
“quasi criminal in nature,” unlike the “State’s devastatingly
adverse action” considered in M.L.B., in which the plaintiff,
“[l]ike a defendant resisting criminal conviction,” sought to
withstand “the State’s authority to sever permanently a
parent-child bond.” Id. at 116, 124-25. Instead, citizenship
granted via naturalization—like bankruptcy discharge, Kras,
409 U.S. 434, or welfare benefits, Ortwein, 410 U.S. 656—
involves a discretionary benefit conferred by statute. The
Court has made clear that Congress enjoys “broad power over
naturalization and immigration,” Demore v. Kim, 538 U.S.
510, 521 (2003) (quoting Mathew v. Diaz, 426 U.S. 67, 79-80
(1976)), and that “[n]o alien has the slightest right to
naturalization unless all statutory requirements are complied
with,” United States v. Ginsberg, 243 U.S. 472, 475 (1917).
The specific claims made in this case thus fall “with[in]
the generality of civil cases, in which indigent persons have
no constitutional right to proceed in forma pauperis.” M.L.B.,
519 U.S. at 119. In such a situation, “the applicable equal
protection standard ‘is that of rational justification.’” Id. at
115-16 (quoting Ortwein, 410 U.S. at 660). The three-strikes
rule readily meets that standard in these particular
circumstances. “The State’s need for revenue to offset costs,
in the mine run of cases, satisfies the rationality requirement.”
Id. at 123. The three-strikes rule also furthers Congress’s
expressed interest in stemming a perceived “flood[]” of
“meritless claims.” Chandler, 145 F.3d at 1356. We
therefore conclude that the three-strikes rule is constitutional
as applied to this action.
* * * * *
For the foregoing reasons, we deny Asemani’s motion to
proceed IFP and do not reach the merits of his appeal. See
15
Pinson, 761 F.3d at 5-6; Smith, 182 F.3d at 30. Under this
circuit’s precedent, Asemani now has a choice. If he wishes
to proceed with this appeal, he has thirty days from the date of
this opinion to pay the filing fee up front. See Mitchell, 587
F.3d at 422. But Asemani may also elect not to proceed with
his appeal, in which case his appeal will be dismissed and no
fees will be collected. See Smith, 182 F.3d at 30; Wooten v.
D.C. Metro. Police Dep’t, 129 F.3d 206, 208 (D.C. Cir.1997).
We note that Asemani’s arguments in favor of
proceeding IFP on appeal directly mirror his arguments
challenging the district court’s decision to revoke IFP status.
As we have already rejected those arguments in this opinion,
Asemani, were he to choose to pay the filing fee and proceed
with his appeal, would likely be paying “to have us say
essentially what we have already said about his case.”
Wooten 129 F.3d at 208.
So ordered.