Michael S. Gorbey v. United States ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 15, 2020 Decided July 7, 2020
No. 18-5331
JEREMY PINSON,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00486)
Anthony F. Shelley, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on the
briefs was Dawn E. Murphy-Johnson, appointed by the court.
Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
2
_____
No. 18-5375
MICHAEL S. GORBEY,
APPELLANT
v.
UNITED STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02672)
Anthony F. Shelley, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on the
briefs was Dawn E. Murphy-Johnson, appointed by the court.
Michael S. Gorbey, pro se, filed the briefs for appellant.
Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Before: TATEL and RAO, Circuit Judges, and SENTELLE,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Under the Prison Litigation Reform
Act’s (PLRA) three-strikes rule, indigent prisoners who have
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had three or more actions dismissed as “frivolous, malicious,
or [for] fail[ure] to state a claim” may not “bring a civil action
or appeal a judgment” in forma pauperis (IFP). 28 U.S.C.
§ 1915(g). This rule, however, has an important exception:
three-strike prisoners may proceed IFP if they are “under
imminent danger of serious physical injury.” Id. In these two
related cases, Michael Gorbey and Jeremy Pinson, both
incarcerated three-strikers, seek to bring their appeals IFP on
the ground that they face imminent danger. In the alternative,
Pinson contends that she should be permitted to proceed IFP
because, as applied to her appeal, the three-strikes rule is
unconstitutional. The government opposes the prisoners’
requests, arguing that neither Gorbey nor Pinson faced
imminent danger at the relevant time and that, even if they did,
their underlying claims are unrelated to the dangers they
purportedly faced. The government also insists that the three-
strikes rule poses no constitutional difficulties.
We reject the prisoners’ requests. As explained below, to
proceed under the exception, three-strike prisoners must show
an imminent danger at the time of their appeal and a nexus
between that danger and their underlying claims. Gorbey has
failed to demonstrate a nexus between the danger he faced and
the claims he brought, and Pinson has failed to show that she
faced imminent danger at the time she noticed her appeal. As
for Pinson’s alternative argument, even assuming that some
prisoners can make out viable as-applied constitutional
challenges to the three-strikes rule, Pinson has failed to do so.
I.
Generally, all litigants, including incarcerated litigants,
must pay prescribed filing fees to pursue civil actions in federal
courts. Id. § 1914(a). Courts, however, have broad authority to
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waive such fees for indigent litigants who qualify to proceed
IFP. Id. § 1915(a).
In the 1990s, “Congress . . . concluded that prisoner
litigants were abusing the [federal IFP] statute by flooding the
courts with meritless claims.” Chandler v. District of Columbia
Department of Corrections, 145 F.3d 1355, 1356 (D.C. Cir.
1998). It responded by passing the PLRA, which “enacted a
variety of reforms designed to filter out the bad [prisoner]
claims and facilitate consideration of the good.” Jones v. Bock,
549 U.S. 199, 204 (2007).
To that end, the PLRA “established new standards for the
grant of IFP status to prisoners.” Chandler, 145 F.3d at 1356.
The statute requires incarcerated litigants, including indigent
ones, “to pay the full amount of [the] filing fees.” 28 U.S.C.
§ 1915(b)(1). Those who qualify for IFP status may pay such
fees in installments over time. Id. § 1915(b)(2). But under the
so-called three-strikes rule, certain repeat prisoner-litigants are
precluded from proceeding IFP at all:
In no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or
proceeding under this section if the prisoner
has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought
an action or appeal in a court of the United
States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the
prisoner is under imminent danger of serious
physical injury.
Id. § 1915(g). To pursue federal actions, then, three-strike
prisoners must pay filing fees up front and in full, rather than
in installments over time. Central to this case, however, the
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final clause of section 1915(g) creates a limited exception to
this rule: even three-strike prisoners may proceed IFP—i.e.,
they may pay filing fees in installments—if they are “under
imminent danger of serious physical injury.” Id.
Here, both Gorbey and Pinson are three-strikers—that is,
both have had three or more actions dismissed as “frivolous,
malicious, or [for] fail[ure] to state a claim” and, consequently,
are barred from proceeding IFP “unless [they are] under
imminent danger of serious physical injury.” Id. Each now
seeks leave to proceed IFP on the ground that he (Gorbey) or
she (Pinson) falls within the imminent-danger exception. Their
requests raise similar legal issues regarding the exception’s
scope—whether to qualify under the exception on appeal
prisoners must (1) show that they faced imminent danger at the
time of filing their appeals, and (2) demonstrate a nexus
between the harms they allege and the claims they bring. We
appointed Anthony F. Shelley as amicus to present legal
arguments on behalf of the prisoners—a role he has fulfilled
admirably—and now resolve both cases together. We address
the statute’s general requirements before turning to the
specifics of each prisoner’s request.
II.
On the first question, amicus and the government agree
that prisoner-litigants must show that they faced imminent
danger when they noticed their appeals. We too agree.
In Asemani v. United States Citizenship & Immigration
Services, 797 F.3d 1069 (D.C. Cir. 2015), we explained that the
“PLRA’s three-strikes rule applies with equal force to ‘a
prisoner bring[ing] a[n] . . . appeal,’” meaning prisoner-
litigants “cannot proceed IFP unless [they] demonstrate[] that
[they are] ‘under imminent danger of serious physical injury.’”
Id. at 1073 (first two alterations in original) (quoting 28 U.S.C.
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§ 1915(g)). There, we had no need to decide whether, in
“determin[ing] the applicability of the imminent danger
exception on appeal, . . . 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,” given that the prisoner-litigant
in that case had failed to make the requisite showing at either
stage. Id. at 1075. We now resolve that question and conclude
that the conditions prisoners faced at the time of noticing their
appeals determine their eligibility to proceed under the
exception.
Congress made this clear by including two temporal
reference points in the statute—the act of “bring[ing] a civil
action” and the act of “appeal[ing] a judgment”—and by
separating those reference points with the word “or.” 28 U.S.C.
§ 1915(g). That word’s “ordinary use is almost always
disjunctive, that is, the [phrases] it connects are to ‘be given
separate meanings.’” United States v. Woods, 571 U.S. 31, 45
(2013) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339
(1979)). In section 1915(g), use of the disjunctive indicates that
prisoner-litigants must make the imminent-danger showing at
two separate points in the litigation, upon “bring[ing] a civil
action” and upon “appeal[ing] a judgment,” 28 U.S.C.
§ 1915(g). As the Ninth Circuit observed in Williams v.
Paramo, 775 F.3d 1182 (9th Cir. 2015), “[h]ad the statute
stated, ‘In no event shall a prisoner bring a civil action and
appeal a judgment in a civil action . . .’ we might conclude that
a single determination at the time the complaint was filed is
sufficient because the conjunctive ‘and’ would require [courts]
to treat both the bringing of the action and the appeal as part of
a single, conjunctive whole.” Id. at 1188. But that is not the
statute Congress enacted; rather, section 1915(g)’s disjunctive
construction requires prisoner-litigants proceeding under the
exception to demonstrate that they faced imminent danger both
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at the time they file their lawsuit and at the time they notice
their appeal. See id. at 1189 (concluding the same).
To be sure, stray language in our prior decisions suggests
that the only relevant conditions are those prisoners faced when
bringing actions in district court. Most notably, in another case
brought by Pinson, Pinson v. Samuels, 761 F.3d 1 (D.C. Cir.
2014), we rejected the parties’ calls to consider “post-
complaint developments when assessing the applicability of
the imminent danger exception,” explaining that section
1915(g) “directs attention to whether the prisoner ‘is under
imminent danger of serious physical injury’ when he ‘bring[s]’
his action, not to whether he later in fact suffers (or does not
suffer) a serious physical injury.” Id. at 5 (quoting 28 U.S.C.
§ 1915(g)). But in Asemani, decided the following year, we
clarified that the question of “[w]hether 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” remained open,
while acknowledging that our “prior decisions” had focused on
“the conditions faced by a prisoner when initially filing suit in
the district court.” 797 F.3d at 1075 (citing Pinson, 761 F.3d at
4–5). In any event, Pinson’s holding fully squares with the
interpretation of section 1915(g) we adopt today because the
“developments” that we refused to consider in that case
occurred not only “post-complaint” but also post-appeal: the
prisoner appealed in March 2010 and, in assessing the
imminent-danger showing, we refused to consider incidents
that occurred in August 2010 and January 2011. Pinson, 761
F.3d at 3–4.
Having established when prisoner-litigants must make the
imminent-danger showing, we confront two additional
questions: (1) whether we may consider imminent-danger
allegations made for the first time on appeal; and (2) whether
8
we may venture beyond the prisoners’ allegations in evaluating
that showing.
Aligning again, amicus and the government agree that we
may consider imminent-danger allegations newly offered on
appeal. Once more, we concur, as it would make little sense for
the PLRA to demand prisoners show they faced imminent
danger at the time of their appeals only then to prohibit them
from introducing allegations to support that showing. To be
sure, having appellate courts parse such allegations “deviates
from the typical approach of having a district court take a first
look at a factual matter,” Gorbey Appellee’s Br. 23, but
Congress can, and in the PLRA did, assign atypical roles to
courts in particular circumstances, see, e.g., 28 U.S.C. § 1253(providing for direct Supreme Court review of an injunction
issued by a district court of three judges).
On the second question—how to evaluate prisoners’
allegations—our caselaw makes clear that we generally look to
prisoners’ “timely filing[s]” and “accept [those] factual
allegations as true.” Asemani, 797 F.3d at 1075. This comports
with section 1915(g)’s “limited office” as a “mere screening
device.” Pinson, 761 F.3d at 5 (internal quotation marks
omitted). A contrary approach would “spawn[] additional
litigation and creat[e] mini-trials over whether a prisoner has
shown an imminent danger,” adding to, rather than reducing,
“the flood of litigation brought by prisoners.” Williams, 775
F.3d at 1190.
The government recognizes as much. See Gorbey
Appellee’s Br. 44 (“[I]mminent danger allegations generally
are construed liberally and accepted as true.”). It nevertheless
insists that in these cases we should “scrutinize [the prisoners’]
IFP allegations and . . . solicit additional information about
[those] allegations” because other federal courts have rejected
9
similar requests by Gorbey and Pinson to proceed under the
imminent-danger exception. Id. at 47; see also id. at 24
(“[O]ther courts, including the Fourth Circuit, already have
concluded [that] the imminent danger allegations offered here
by Gorbey do not suffice for the [exception]”); Pinson
Appellees’ Br. 43 (citing a decision from the Northern District
of California rejecting Pinson’s request to proceed IFP based
on similar allegations). We have no need to decide, however,
whether and under what circumstances section 1915(g)’s
“limited office,” Pinson, 761 F.3d at 5 (internal quotation
marks omitted), permits courts to venture beyond prisoners’
allegations in making the imminent-danger determination, cf.
Shepehrd v. Annucci, 921 F.3d 89, 94 (2d Cir. 2019)
(“[D]istrict courts—upon challenge by a defendant—may
conduct a narrow evidentiary inquiry into the prisoner-
litigant’s fear of imminent danger”). As explained below, even
limiting ourselves to Gorbey’s and Pinson’s “timely filing[s]”
and “accept[ing] [those] factual allegations as true,” Asemani,
797 F.3d at 1075, neither qualifies under the exception.
This brings us to the final issue common to both cases—
whether prisoners must demonstrate a nexus between the harms
they allege and the claims they bring.
Recall that Congress enacted the PLRA “to filter out the
bad claims and facilitate consideration of the good.” Jones, 549
U.S. at 204. The three-strikes rule effectuates that goal by
imposing more onerous burdens on prisoner-litigants that have
thrice been bounced from court. Within this statutory scheme,
“the imminent danger exception is designed to provide a safety
valve for the ‘three strikes’ rule[,] . . . permit[ting] an indigent
three-strikes prisoner to proceed IFP in order to obtain a
judicial remedy for an imminent danger.” Pettus v.
Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (internal
quotation marks omitted). Put differently, with the final clause
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of section 1915(g), “Congress created a limited exception
aimed at preventing future harms.” Abdul-Akbar v. McKelvie,
239 F.3d 307, 315 (3d Cir. 2001) (en banc).
Given that limited purpose, we hold that prisoners must
demonstrate a nexus between the harms they allege and the
claims they bring. Cf. King v. Burwell, 135 S. Ct. 2480, 2496
(2015) (“A fair reading of legislation demands a fair
understanding of the legislative plan.”). Otherwise, “an
indigent prisoner with a history of filing frivolous complaints
could, by merely alleging an imminent danger, file an
unlimited number of lawsuits, paying no filing fee, for anything
from breach of a consumer warranty to antitrust conspiracy.”
Pettus, 554 F.3d at 297. And those claims would need not relate
to, much less relieve, the alleged harms. Indeed, “a prisoner
could pass through the safety valve with no intention of asking
the courts to protect him.” Meyers v. Commissioner of Social
Security Administration, 801 F. App’x 90, 95 (4th Cir. 2020)
(per curiam). It would make little sense to “conclude that with
one hand Congress intended to enact a statutory rule that would
reduce the huge volume of prisoner litigation, but, with the
other hand, it engrafted an open-ended exception that would
eviscerate the rule.” Abdul-Akbar, 239 F.3d at 315. For that
reason, every court of appeals to have passed on this question
has concluded that section 1915(g) contains a nexus
requirement, albeit largely in unpublished decisions. See
Meyers, 801 F. App’x at 96 (collecting cases).
Amicus argues that the Supreme Court’s decision in
Coleman v. Tollefson, 135 S. Ct. 1759 (2015), requires the
PLRA to be read literally and that, because no nexus
requirement appears on the face of section 1915(g), Coleman
precludes us from reading such a requirement into the statute.
Not quite. In Coleman, the Supreme Court confronted a
different statutory interpretation question involving the three-
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strikes rule—whether “a dismissal on a statutorily enumerated
ground counts as a strike even if the dismissal is the subject of
an appeal.” 135 S. Ct. at 1763. Given that “the ‘three strikes’
provision applies where a prisoner ‘has, on 3 or more prior
occasions . . . brought an action or appeal . . . that was
dismissed,’” the Court concluded that dismissals subject to
appeal count as strikes because “[t]hat, after all, is what the
statute literally says.” Id. (alterations in original) (quoting 28
U.S.C. § 1915(g)). The Court went on, however, to explain that
this “literal reading” also comported with the statute’s structure
and purpose. Id. at 1764. Coleman, then, stands for the
unremarkable proposition that, as with any question of
statutory interpretation, we construe section 1915(g) in light of
the statute’s “text, structure, purpose, and legislative history.”
Pharmaceutical Research & Manufacturers of America v.
Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001). And as
explained above, those “traditional tools of statutory
interpretation,” id., establish that section 1915(g) requires a
nexus between the harms prisoners allege and the claims they
bring.
With that established, we turn to Gorbey’s and Pinson’s
requests to proceed IFP on appeal. We address Gorbey’s
eligibility to proceed under the imminent-danger exception in
Part III, Pinson’s eligibility in Part IV, and the as-applied
challenge in Part V.
III.
Gorbey is serving a twenty-year prison term and, during
that time, has become a prolific litigator, filing scores of suits
across the country. In this latest action, Gorbey alleged that
various federal judges who presided over his previous cases
and appeals violated the Federal Tort Claims Act, 28 U.S.C.
§§ 2671 et seq. Specifically, Gorbey claimed that the judges
12
restricted his access to the courts by reading section 1915(g)’s
imminent-danger exception too narrowly. According to
Gorbey, this purported judicial misconduct exacerbated the
conditions of his confinement and subjected him “to pain,
serious physical injuries, [and] threat of death.” Gorbey Compl.
6, Gorbey Appendix (Gorbey App.) 9. He sought $800,000 in
damages and asked that section 1915(g) “be reformed to
require immediate inquiries into allegations of imminent
danger.” Id. at 22, Gorbey App. 25.
Gorbey also applied to proceed IFP. The district court
denied the request, finding that “[t]his plaintiff has
accumulated at least three strikes” and “does not qualify under
the imminent danger exception.” Order, Gorbey App. 3.
Gorbey appealed and the clerk of this court ordered him to
show cause “why he should not be required to pay the full
appellate filing fee before the court will consider this appeal.”
Order, Gorbey v. United States, No. 18-5375 (D.C. Cir. Dec.
31, 2018). In response, Gorbey claimed that he “[wa]s still
under and suffering” from “conditions which . . . []resulted in[]
serious bodily injuries,” namely that the Bureau of Prisons
(BOP): (1) assigned him a top bunk without a ladder, despite
the fact that Gorbey suffered from chronic injuries that made
climbing to a top bunk difficult and put him at risk of falling;
(2) cancelled his December 2018 eye-doctor appointment,
leaving him without medication or treatment for his glaucoma;
(3) exposed him to “toxic black mold causing a list of
infections and . . . posing a risk of serious sickness or death”;
and (4) forced him to wear broken shoes, leading to wet feet
and “a []threat of[] serious sickness.” Resp. to Order to Show
Cause 4–6, Gorbey App. 50–52. A motions panel discharged
the show cause order and referred Gorbey’s request to a merits
panel.
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The government now argues that we should deny Gorbey’s
application to proceed IFP because his allegations fail to
establish imminent danger and because those allegations lack
an adequate nexus to his underlying claims. We concur in the
second point and, accordingly, have no need to address the
first.
Amicus and the government offer different views as to
what section 1915(g)’s nexus requirement entails. Analogizing
to standing principles, the government argues that prisoners’
claims must be “fairly traceable” to the harms alleged and that
the relief requested must “redress” those harms. Pinson
Appellees’ Br. 18 (quoting Pettus, 554 F.3d at 297). Amicus,
by contrast, contends that “if [a nexus requirement] is to be
engrafted onto the statute,” then we should require only that
prisoners’ “claims on the merits . . . be related to the
allegations of imminent harm.” Pinson Amicus Br. 41.
We see no need to articulate a precise test for evaluating
section 1915(g)’s nexus requirement because, whatever the
standard, Gorbey’s claims bear no relationship at all to the
dangers alleged. His claims neither address the conditions of
his confinement nor “aim[] at preventing [the] future harms”
he purportedly faced. Abdul-Akbar, 239 F.3d at 315. Were
Gorbey to prevail and obtain all the relief he requested, that
relief would in no way redress the complained-of dangers. The
BOP could still assign him a top bunk, his glaucoma would
remain untreated, and so on and so forth. Because Gorbey’s
claims do not seek “to obtain a judicial remedy for an imminent
danger,” Pettus, 554 F.3d at 297 (emphasis added), they lack
even a minimal nexus to the harms alleged and, accordingly,
cannot support Gorbey’s IFP request.
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IV.
Pinson is also serving a twenty-year prison term and, like
Gorbey, has become a prodigious litigator while incarcerated.
Initiating this action in December 2016, she sought leave to
proceed IFP under the imminent-danger exception. The district
court denied the request, and Pinson challenged the denial via
mandamus. On appeal, the clerk of this court ordered Pinson to
show cause why she “should not be required to pay the full
appellate filing fees.” Order, Pinson v. Department of Justice,
No. 18-5331 (D.C. Cir. June 15, 2017). Pinson responded in
July 2017, asserting that she faced imminent danger because
she “ha[d] previously cooperated with law enforcement and her
cooperation ha[d] unfortunately become public . . . le[ading] to
many attempts to kill her.” Resp. to Order to Show Cause 1,
Pinson Appendix (Pinson App.) 98. In light of those
allegations, we discharged the show cause order, granted
mandamus, and directed the district court to allow Pinson to
proceed IFP.
Back before the district court, Pinson submitted several
filings relevant to this appeal. She first amended her complaint
to bring claims against the Department of Justice under the
First and Eighth Amendments. In particular, Pinson alleged
that in retaliation for her frequent lawsuits, BOP officials, inter
alia, transferred her to a “remarkably harsher and more
dangerous” facility in Tucson and leaked a rape complaint
Pinson filed to other inmates. Am. Compl. 2–3, Pinson App.
120–21. Pinson also filed three preliminary injunction motions
seeking emergency relief on the grounds that BOP officials
hindered her access to the courts by, among other things,
blocking the email address she used to communicate with her
lawyer and excluding her from the prison’s law library. The
district court denied all three motions, finding that Pinson faced
no irreparable harm and was unlikely to succeed on the merits.
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Instead of proceeding with her amended complaint, on
which the district court has taken no action, Pinson filed this
interlocutory appeal on November 9, 2018. Although the
district court permitted Pinson to file the appeal IFP, the clerk
of this court again issued Pinson an order to show cause why
she should not be required to pay the full appellate filing fees.
In response, Pinson asserted that “in light of the” district
court’s order, this court’s “order to show cause [wa]s moot.”
Appellant’s Resp. to Show Cause Order 1, Pinson App. 186. A
motions panel discharged the order and referred Pinson’s
request to a merits panel. Since the referral, Pinson has
submitted several letter motions seeking to supplement the
record with documentation of assaults she allegedly suffered at
the hands of fellow inmates, all of which purportedly occurred
after June 2019.
Out of that procedural tangle, we are left with the question
of whether Pinson may bring her interlocutory appeal under the
imminent-danger exception. The government argues that the
“facts proffered by Pinson do not establish a danger of
imminent serious physical injury in November 2018”—when
she lodged her notice of appeal—and that her request to
proceed under the exception should therefore be denied. Pinson
Appellees’ Br. 40. Once more, we agree.
As explained above, to bring this appeal under the
exception, Pinson must show that she faced imminent danger
at the time of noticing her appeal. She has failed to do so, as all
of her allegations concern incidents that occurred several
months before or several months after she took her appeal. The
allegations in Pinson’s mandamus petition and amended
complaint predate her notice of appeal by sixteen and eight
months, respectively. See Resp. to Order to Show Cause 1,
Pinson App. 98 (complaining of harm she faced no later than
June 2017); Am. Compl. 1–2, Pinson App. 119–20 (raising
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vague allegations that she faced threats in February 2018). As
for the allegations in Pinson’s letter motions, they all concern
incidents that occurred post-June 2019, more than six months
after Pinson noticed her appeal. Mot. for Order to Suppl. R. 1,
Pinson App. 191. None of those allegations can support
Pinson’s request to proceed under the imminent-danger
exception because “the availability of the . . . exception turns
on ‘whether the prisoner is under imminent danger of serious
physical injury when’” she brings an appeal, “not ‘whether
[s]he later in fact suffers’ (or earlier suffered) such a threat.”
Asemani, 797 F.3d at 1074 (quoting Pinson, 761 F.3d at 5).
Relying on Williams, amicus contends that “there should
be a presumption in favor of the prisoner that imminent-danger
conditions found at the district court stage continue at the time
of the filing of a related appeal” and that “[t]he presumption
applies fully in Pinson’s case.” Pinson Amicus Br. 17. True, in
Williams, the Ninth Circuit “conclude[d] that a prisoner who
was found by the district court to sufficiently allege an
imminent danger is entitled to a presumption that the danger
continues at the time of the filing of the notice of appeal.” 775
F.3d at 1190. But the court also cautioned that for a prisoner-
litigant to avail herself of the presumption, she must submit
something, like “[a]n affidavit or declaration[,] that alleges an
ongoing danger at the time of the filing of the notice of appeal.”
Id. Pinson proffered no such filing: nowhere in her various
submissions to this court and the district court does she identify
any harm, continuing or otherwise, that she faced at the time of
her appeal. Thus, even were we to adopt the Ninth Circuit’s
presumption, Pinson would not qualify for it.
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V.
Because the three-strikes rule precludes Pinson from
proceeding IFP on appeal, we must address the contention that
the rule is unconstitutional as applied to her.
Amicus likens this case to In re Green, 669 F.2d 779 (D.C.
Cir. 1981) (per curiam), in which we vacated a district-court
order that prospectively denied IFP status in all future cases to
a particularly prolific prison-litigant. Id. at 786. The order, we
explained, “erect[ed] a potentially prohibitive financial barrier”
that “effectively denie[d] [the prisoner] any and all access to
the district court.” Id. Because “[e]ven a new, nonfrivolous
claim submitted in good faith,” including one “involving a
fundamental constitutional right,” “would not be heard if [the
prisoner] could not meet the filing fee,” we found the order “so
burdensome as to deny the litigant meaningful access to the
courts.” Id.According to amicus, applying the three-strikes rule to this
appeal would be equally unconstitutional because it
“categorically . . . denie[s] [Pinson] access to the courts . . . in
a case in which she [too] seeks to vindicate fundamental
rights.” Pinson Amicus Br. 48. But even assuming that the rule
might raise constitutional concerns when it “total[ly] bar[s]”
prisoner-litigants from accessing the courts, Green, 669 F.2d at
785, Pinson’s as-applied challenge fails because she has yet to
encounter such a barrier, see Asemani, 797 F.3d at 1077
(assuming that the rule “might raise constitutional concerns
when a prisoner seeks access to the courts to vindicate certain
fundamental rights” but concluding that the prisoner-litigant in
that case failed to raise such claims (citing Thomas v. Holder,
750 F.3d 899, 909 (D.C. Cir. 2014) (Tatel, J., concurring)).
Where, as here, “‘the essence’” of a prisoner-litigant’s
denial-of-access claim “‘is that official action’”—e.g., the
18
imposition of filing fees—“‘is presently denying an
opportunity to litigate,’” “[t]he Supreme Court’s
jurisprudence . . . reveals at least two necessary elements: an
arguable underlying claim and present foreclosure of a
meaningful opportunity to pursue that claim.” Broudy v.
Mather, 460 F.3d 106, 117, 120–21 (D.C. Cir. 2006) (quoting
Christopher v. Harbury, 536 U.S. 403, 413 (2002)). The first
element requires a nonfrivolous underlying claim “attack[ing]
[the prisoner’s] sentence[]” or “conditions
of . . . confinement.” Lewis v. Casey, 518 U.S. 343, 355 (1996).
The second requires the prisoner to “show that a meaningful
opportunity to pursue the[] underlying claim[] was completely
foreclosed.” Broudy, 560 F.3d at 121 (internal quotation marks
omitted).
Pinson falters on the second element. Her request to
proceed IFP pertains only to her interlocutory appeal
challenging the district court’s denial of her preliminary-
injunction motions. Critically, her amended complaint and the
constitutional claims contained therein remain pending before
the district court. Thus, Pinson can “still meaningfully press
h[er] underlying [constitutional] claims.” Broudy, 560 F.3d at
121. Although the three-strikes rule limits Pinson’s ability to
obtain the extraordinary remedy of a preliminary injunction,
that limitation does not “total[ly] bar[]” Pinson from bringing
her claims. Green, 669 F.2d at 785; cf. In re Sindram, 498 U.S.
177, 180 (1991) (per curiam) (ordering the clerk to deny a
prisoner-litigant IFP status in “all future petitions for
extraordinary relief”). Unlike the prisoner-litigant in Green,
then, Pinson has not yet been “den[ied] . . . any and all access”
to the courts. 669 F.2d at 786.
To be clear, we take no position on whether the outcome
would be different were the three-strikes rule to prevent Pinson
from pursuing her constitutional claims on direct appeal.
19
Because we confront only Pinson’s interlocutory appeal, our
holding is similarly limited.
VI.
For the reasons set forth above, we deny Gorbey’s and
Pinson’s requests to proceed IFP on appeal. If the prisoners
wish to proceed with their appeals, they have thirty days from
the date of this opinion to pay the full filing fees. Asemani, 797
F.3d at 1078. But they may also elect not to proceed with their
appeals, in which case the appeals will be dismissed and no fees
will be collected. See id.
So ordered.