Edward Ray, Jr. v. E. Lara

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD VINCENT RAY, JR., No. 19-17093
Plaintiff-Appellant,
D.C. No.
v. 5:19-cv-01298-EJD
E. LARA,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted December 7, 2021
San Francisco, California
Filed April 11, 2022
Before: Carlos F. Lucero, * Sandra S. Ikuta, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Lucero
*
The Honorable Carlos F. Lucero, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 RAY V. LARA
SUMMARY **
Prisoner Civil Rights
The panel affirmed the district court’s denial of a state
prisoner’s motion to proceed in forma pauperis in an action
brought pursuant to 42 U.S.C. § 1983 alleging unlawful mail
tampering.
The district court determined sua sponte that plaintiff
was barred from proceeding in forma pauperis (IFP) under
the “three-strikes” provision of the Prison Litigation Reform
Act (PLRA), 28 U.S.C. § 1915(g), and rejected plaintiff’s
contention that he was under imminent danger of serious
physical injury, an exception which allows prisoners to
proceed IFP notwithstanding the three-strikes rule. When
plaintiff failed to pay the filing fee, the court dismissed the
action.
The panel first rejected plaintiff’s assertion that the
district court erred by failing to provide him an opportunity
to be heard on the § 1915(g)’s three-strikes bar as required
by Andrews v. King, 398 F.3d 1113 (9th Cir. 2005) (Andrews
I). The panel held that the district court clearly identified the
three prior dismissals in its order denying plaintiff’s motion
to proceed IFP. Having placed plaintiff on notice of the three
cases that constituted strikes, Andrews I was satisfied. Thus,
the district court did not err by denying plaintiff’s motion
without providing him a further opportunity to be heard.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RAY V. LARA 3
The panel held that the district court properly assessed
three strikes based on plaintiff’s prior dismissals. The first
two dismissals, pursuant to Heck v. Humphrey, 512 U.S. 477(1994), qualified as strikes because the Heck bar was facially
obvious from the face of plaintiff’s complaints. The district
court properly assessed the third strike, involving a dismissal
on the basis of absolute prosecutorial immunity, because it
was an exceptional case where the affirmative immunity
defense was readily apparent without resort to any additional
information outside the four corners of the complaint.
Finally, addressing the imminent danger exception to
§ 1915(g), the panel joined three other circuits and held that
the text, context, and purpose of the PLRA mandate that the
imminent danger exception to § 1915(g) requires a nexus
between the alleged imminent danger and a prisoner’s
complaint. Applying this nexus requirement to the case at
bar, it was clear that plaintiff did not qualify for the imminent
danger exception.
COUNSEL
Benjamin G. Barokh (argued), Munger Tolles & Olson LLP,
Los Angeles, California; Elaine J. Goldenbergh, Munger
Tolles & Olson LLP, Washington, D.C.; for Plaintiff-
Appellant.
Misha Igra (argued), Supervising Deputy Attorney General;
Jaime Ganson, Deputy Attorney General; Monica N.
Anderson, Senior Assistant Attorney General; Matthew
Rodriquez, Acting Attorney General; Office of the Attorney
General, Sacramento, California; for Defendant-Appellee.
4 RAY V. LARA
OPINION
LUCERO, Circuit Judge:
Appellant Edward Vincent Ray, Jr., a state prisoner,
alleged that a corrections officer unlawfully tampered with
his mail. Ray moved pro se to proceed in forma pauperis
(IFP), but the district court denied his motion upon finding
that he was barred from proceeding IFP under the “three-
strikes” provision of the Prison Litigation Reform Act
(PLRA). 28 U.S.C. § 1915(g). In its denial, the district court
specifically rejected Ray’s contention that he was under
imminent danger of serious physical injury, an exception
which allows prisoners to proceed IFP notwithstanding the
three-strikes rule. When Ray failed to pay the filing fee, the
court dismissed the action.
This appeal poses two questions: (1) did the district
court properly attribute three strikes to Ray; and (2) must an
allegation of imminent danger relate to a prisoner’s
underlying claim to defeat the PLRA’s three-strikes bar?
We conclude that the district court’s three-strikes
determination was substantively and procedurally correct.
Further, we hold that the imminent danger exception to
§ 1915(g) requires a nexus between the alleged imminent
danger and a prisoner’s complaint. Because Ray failed to
establish this nexus, he is barred from proceeding IFP.
Exercising jurisdiction under 28 U.S.C. § 1291, we
AFFIRM.
I
Ray, a California state prisoner, filed a pro se complaint
under 42 U.S.C. § 1983, alleging that corrections officer E.
Lara censored and confiscated his mail in violation of the
First and Fourteenth Amendments to the United States
RAY V. LARA 5
Constitution. His complaint further alleged that he was
under imminent danger of serious physical injury because he
was housed with general population inmates despite his
classification as a “Sensitive Needs Yard inmate.” 1 Ray
filed a motion to proceed IFP on the same day he filed his
pro se complaint.
The district court screened Ray’s complaint pursuant to
the PLRA and denied Ray’s motion to proceed IFP. See
28 U.S.C. § 1915A. It determined that Ray was barred from
proceeding IFP under § 1915(g), which provides that:
In no event shall a prisoner bring a civil
action or appeal a judgment in a civil action
or proceeding [IFP] 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.
According to the district court, Ray was subject to the three-
strikes provision due to prior dismissals in: (1) Ray v.
Farrell, No. 3:10-cv-00823-SI (N.D. Cal. Sept. 1, 2010);
(2) Ray v. Basa, No. 3:10-cv-00895-SI (N.D. Cal. Sept. 1,
2010); and (3) Ray v. Friedlander, No. 3:10-cv-01107-SI
(N.D. Cal. Sept. 1, 2010). In addition, the district court
determined Ray did not qualify for the imminent danger
1
Sensitive Needs Yard inmates are typically housed apart from
general population inmates because they are under protective custody
status.
6 RAY V. LARA
exception because he failed to establish a nexus between his
complaint and alleged imminent danger.
In its decision, the district court noted that it was
permitted to raise the § 1915(g) deficiency sua sponte,
provided that Ray was given notice of which earlier
dismissals were counted as strikes and an opportunity to be
heard. 2 See Andrews v. King, 398 F.3d 1113 (9th Cir. 2005)
(Andrews I). Ray was ordered to pay the full filing fee within
fourteen days. After he failed to contest the district court’s
three-strikes determination or timely pay the filing fee, his
action was dismissed. Ray filed a timely pro se notice of
appeal in this court and moved to proceed IFP on appeal. In
his appellate IFP motion, Ray argued that he was transferred
to mixed population prison housing in retaliation for filing a
grievance against Lara. A two-judge panel determined Ray
had alleged imminent danger of serious physical injury and
granted his motion to proceed IFP. After Ray filed his
opening brief, we appointed pro bono counsel to represent
Ray and directed the parties to address whether § 1915(g)
requires a nexus between a plaintiff’s claims and alleged
imminent danger.
II
We review a district court’s interpretation and
application of the PLRA three-strikes provision de novo.
Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048,
1054 (9th Cir. 2016). We begin by addressing whether the
district court was required to provide Ray additional
opportunity to be heard on the three-strikes bar under our
2
The district court concluded that Ray had an opportunity to be
heard with respect to his imminent danger allegations because the court
fully considered his complaint before ruling on the IFP motion.
RAY V. LARA 7
decision in Andrews I, 398 F.3d 1113. Concluding that no
additional process was required, we then consider whether
Ray has accumulated three strikes.
A
Ray argues the district court erred by failing to provide
him an opportunity to be heard on § 1915(g)’s three-strikes
bar as required by Andrews I. He contends the district court
was required to either issue an order to show cause
identifying three strikes or grant leave to refile his IFP
request. However, Andrews I involved a very different
procedural posture. In that case, defendants moved for
summary judgment after the district court granted prisoner-
plaintiff’s motion to proceed IFP. Id. at 1116. They argued
Andrews was barred from proceeding IFP under § 1915(g),
attaching docket records from over twenty dismissed actions
that he brought while incarcerated. Id. The district court
granted defendants’ motion and dismissed his action without
prejudice. Id. at 1117.
We reversed on appeal, holding that when a defendant
challenges a prisoner-plaintiff’s IFP status, the defendant
carries the burden of production to show that plaintiff is
barred from such status by § 1915(g). Id. at 1120. Upon
making this showing, the burden shifts to prisoner-plaintiff
to explain why prior dismissals should not count as strikes
under the statute. Id. We determined that the defendants in
Andrews I had not met their burden of production, as the
appended dockets did not establish that prior actions were
dismissed because they were “frivolous, malicious or
fail[ed] to state a claim.” Id. (quoting § 1915(g)).
By contrast, Ray was never granted IFP status and
defendant Lara did not raise the three-strikes bar before the
district court. Instead, the court raised § 1915(g)’s bar sua
8 RAY V. LARA
sponte during screening and denied Ray’s motion to proceed
IFP. Thus, the burden-shifting framework outlined in
Andrews I is inapposite. Moreover, Andrews I expressly
agreed with the Seventh Circuit’s approach in Evans v.
Illinois Department of Corrections, 150 F.3d 810 (7th Cir.
1998). See Andrews I, 398 F.3d at 1120. Evans held that a
district court order denying a motion to proceed IFP must
identify three cases found to constitute strikes in order to
satisfy the court’s notice obligation. Evans, 150 F.3d at 811–
12. Our express approval of Evans undercuts any suggestion
that Andrews I announced a rule that prisoner-plaintiffs must
be given an additional opportunity to respond to a district
court’s sua sponte adverse three-strikes determination. 3
In this case, the district court clearly identified three prior
dismissals in its order denying Ray’s motion to proceed IFP.
Having placed Ray on notice of the three cases that
constituted strikes, Andrews I was satisfied. See 398 F.3d
at 1120. No part of the relevant statute required the court to
provide Ray any additional process. See 28 U.S.C. § 1915.
Thus, the district court did not err by denying Ray’s motion
without providing him a further opportunity to be heard.
B
We next consider whether Ray has accumulated three
strikes under § 1915(g). A prior lawsuit constitutes a strike
when it “was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted.” § 1915(g). “[I]f a case was not dismissed on one
of the specific enumerated grounds, it does not count as a
strike under § 1915(g).” Harris v. Harris, 935 F.3d 670, 673
3
Of course, Ray could have moved for reconsideration before the
fourteen-day period to pay the filing fee expired, but he failed to do so.
RAY V. LARA 9
(9th Cir. 2019). On appeal, Ray argues he should be allowed
to proceed IFP because the cases raised by the district court
are not strikes under the statute.
Our analysis begins with the first two dismissals cited by
the district court, Ray v. Farrell, No. 3:10-cv-00823-SI
(N.D. Cal. Sept. 1, 2010), and Ray v. Basa, No. 3:10-cv-
00895-SI (N.D. Cal. Sept. 1, 2010). Both were dismissed
pursuant to the Supreme Court’s decision in Heck v.
Humphrey, 512 U.S. 477 (1994). In Heck, the Court held
that a § 1983 damages claim is not cognizable when success
on the action would imply the invalidity of a conviction or
sentence that has not been reversed or otherwise invalidated.
Id. at 486–87. We have held that a Heck dismissal “may
constitute a PLRA strike for failure to state a claim when
Heck’s bar to relief is obvious from the face of the complaint,
and the entirety of the complaint is dismissed for a qualifying
reason under the PLRA.” Washington, 833 F.3d at 1055.
Thus, we must consider the complaints in Farrell and Basa
to determine whether Heck’s bar to relief was facially
obvious in each case. 4
4
Appellee Lara filed a motion requesting judicial notice of court
documents from several cases filed by Ray, including the complaint from
Basa. Dkt. 31, Ex. E, at 45–56. We may take judicial notice of district
court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir.
1980); Fed. R. Evid. 201. Lara’s motion requesting judicial notice is
GRANTED with respect to Exhibit E, which contains the Basa
Complaint. The motion is DENIED as moot with respect to the
remaining exhibits because, as we explain below, we conclude Ray has
accumulated three strikes based on the dismissals cited by the district
court.
Although neither party requested judicial notice of the complaint in
Farrell, this court “may take judicial notice on its own.” Fed. R. Evid.
201(c)(1). We therefore take judicial notice of the complaint and
10 RAY V. LARA
In Farrell, Ray alleged that a deputy district attorney
withheld exculpatory evidence and violated his Sixth
Amendment right to confront adverse witnesses during his
criminal trial. Farrell Complaint, at 2. The district court
dismissed the complaint in its entirety, determining that
Ray’s claims were “squarely within the Heck rule because
success on them would call into question the validity of his
conviction that is now in place.” Farrell, No. 3:10-cv-
00823-SI, 2010 WL 3448316, at *2 (N.D. Cal. Sept. 1,
2010). 5 Ray contends that, although Farrell was dismissed
pursuant to Heck, the Heck bar was not facially obvious
because the complaint did not explicitly mention the status
of his conviction.
We are not persuaded by this argument. As an initial
matter, Ray’s lawsuit was styled as a prisoner complaint and
listed his prison mailing address. Farrell Complaint, at 1.
Moreover, in a letter attached to his complaint, Ray
confirmed he was “in prison awaiting release via [his]
appeal.” Id. at Ex. 2. Success on Ray’s claim would
necessarily imply that his conviction was obtained in
violation of the Sixth Amendment to the U.S. Constitution.
Heck’s bar to relief was therefore obvious from the face of
Ray’s complaint and the court dismissed his entire complaint
for this reason. See Washington, 833 F.3d at 1055. We agree
that Ray’s prior dismissal in Farrell amounts to a strike
under § 1915(g) for failure to state a claim.
attached exhibits in Farrell as well. See Farrell, No. 3:10-cv-00823-SI
(N.D. Cal. Feb. 26, 2010), Dkt. 1 (“Farrell Complaint”).
5
Although Ray’s complaint asserted criminal claims under
18 U.S.C. §§ 241 and 242, the district court construed the complaint as
a civil rights complaint under § 1983. Farrell, 2010 WL 3448316, at *1.
RAY V. LARA 11
This same reasoning applies to Basa. Ray filed that
complaint four days after filing Farrell in the same court.
Dkt. 31, Ex. E, at 45. He alleged that a police sergeant
violated his right to counsel during a line up and withheld
exculpatory evidence in connection with his criminal trial.
Id. at 46–47. Both Basa and Farrell were assigned to the
same judge, who issued nearly identical opinions dismissing
under Heck on the same day. Id. at 41–43. As with Farrell,
Basa was styled as a prisoner complaint and listed a prison
mailing address for Ray. Id. at 45–49. In addition, an
attached Oakland Police Department Complaint Form
includes Ray’s statement, “I’m in prison because of his
malfeasance.” Id. at 50. Thus, the Heck bar was also
obvious from the face of Ray’s complaint in Basa, and we
agree with the district court that Basa constitutes a strike
under the PLRA. See Washington, 833 F.3d at 1055.
Ray was assessed a third strike for Ray v. Friedlander,
which was dismissed as barred by absolute prosecutorial
immunity. No. 3:10-cv-01107-SI, 2010 WL 3464453 (N.D.
Cal. Sept. 1, 2010). We have held that dismissals on
immunity grounds are not generally strikes under § 1915(g).
Harris, 935 F.3d at 675–76. However, there are two
exceptions to this rule: (1) “where an affirmative defense,
such as immunity, may be so clear on the face of the
complaint that dismissal may qualify as a strike for failure to
state a claim,” and (2) “where an affirmative defense like
immunity is so obvious that the suit is frivolous.” Id. at 676.
These exceptions apply only “where the affirmative defense
is readily apparent without resort to any additional
information outside the four corners of the complaint.” Id.
12 RAY V. LARA
Therefore, we examine Ray’s complaint in Friedlander to
determine whether dismissal amounts to a strike. 6
Friedlander was filed shortly after Farrell and Basa and
assigned to the same judge. Friedlander, 2010 WL
3464453. Ray alleged that a deputy attorney general
misrepresented evidence in an appellate brief submitted in
Ray’s criminal appeal. Friedlander Complaint, at 2–3. It
has long been established that prosecutors enjoy absolute
immunity from damages suits under § 1983 for activities that
are “intimately associated with the judicial phase of the
criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430
(1976). With little discussion, the district court dismissed
Friedlander on this ground. Friedlander, 2010 WL
3464453, at *1 (“Writing the appellate brief on behalf of the
State of California in a criminal case is a prosecutorial
function squarely within the conduct for which a prosecutor
enjoys absolute immunity. The complaint must be dismissed
because it is legally meritless.”). We agree that writing the
appellate brief on behalf of the government in a direct appeal
in a criminal case is “intimately associated with the judicial
phase of the criminal process.” Imbler, 424 U.S. at 430.
Ray’s dismissal in Friedlander thus qualifies as a strike for
failure to state a claim because it is an “exceptional case[]
where the affirmative [immunity] defense is readily apparent
without resort to any additional information outside the four
corners of the complaint.” Harris, 935 F.3d at 676.
In sum, the district court properly assessed three strikes
based on Ray’s prior dismissals in Farrell, Basa, and
6
We take judicial notice of the complaint in Friedlander, although
neither party requested it. Fed. R. Evid. 201(c)(1); see Friedlander,
No. 3:10-cv-01107-SI (N.D. Cal. Mar. 15, 2010), Dkt. 1 (“Friedlander
Complaint”).
RAY V. LARA 13
Friedlander. We need not consider other dismissals raised
by Lara.
III
The final question before us is whether the imminent
danger exception requires a nexus between a plaintiff’s
claims and the alleged danger. Section 1915(g) states in
relevant part that a prisoner who has accumulated three
strikes shall “[i]n no event . . . bring a civil action or appeal
a judgment in a civil action or proceeding [IFP] . . . unless
the prisoner is under imminent danger of serious physical
injury.” Ray argues this exception does not require a link to
his substantive claim, and therefore he is entitled to IFP
status regardless of whether a nexus exists. We disagree and
join three other circuits in holding that the text, context, and
purpose of the statute mandate that the imminent danger
exception to § 1915(g) contains a nexus requirement.
Although we have not explicitly adopted an imminent
danger nexus requirement for § 1915(g) in the past, our
previous decisions have implied the existence of a nexus.
See Andrews v. Cervantes, 493 F.3d 1047, 1053–54 (9th Cir.
2007) (Andrews II); Williams v. Paramo, 775 F.3d 1182,
1190 (9th Cir. 2015). In Andrews II, we concluded that when
one claim in a prisoner’s complaint alleges imminent danger,
the entire complaint should be permitted to proceed IFP,
even if remaining claims do not allege imminent danger.
493 F.3d at 1054. Our decision assumed that at least one
claim must bear a relationship to the alleged imminent
danger for the § 1915(g) exception to apply. Id. Similarly,
in Williams, we emphasized the relationship between a
prisoner’s imminent danger allegations and her claims in
holding that she could proceed IFP on appeal. 775 F.3d
at 1190 (“Williams’s allegations are clearly related to her
14 RAY V. LARA
initial complaint regarding the rumors started by Defendants
. . . .”).
Three of our sibling circuits have formally adopted an
imminent danger nexus requirement for § 1915(g). The
Second Circuit first adopted such a requirement in Pettus v.
Morgenthau, 554 F.3d 293 (2d Cir. 2009). It rejected
plaintiff’s argument that absence of an explicit mention of a
nexus in the statutory text foreclosed the possibility of a
nexus requirement. Id. at 296–97. Rather, considering the
imminent danger exception’s position in the overall PLRA
framework, the court concluded a reasonable reader would
construe the exception narrowly. Id. at 297.
In its decision, the Second Circuit emphasized that
“Congress adopted the [PLRA] with the principal purpose of
deterring frivolous prisoner lawsuits and appeals,” and
construing the imminent danger exception broadly would
thwart that purpose. Id. (quotation omitted). Because the
imminent danger exception operates as a safety valve for
three-strikes prisoners, “[i]ts unmistakable purpose is to
permit an indigent three-strikes prisoner to proceed IFP in
order to obtain a judicial remedy for an imminent danger.”
Id. Pettus also provided guidance on how to determine
whether a nexus exists. Analogizing to standing principles,
the Second Circuit held that, to satisfy § 1915(g), the
allegations in the prisoner’s complaint must reveal that
(1) “the imminent danger of serious physical injury that [the
prisoner] alleges is fairly traceable to unlawful conduct
asserted in the complaint,” and (2) “a favorable judicial
outcome would redress that injury.” Id. at 298–99.
Both the D.C. and Federal Circuits have adopted a
similar requirement, relying on Pettus. Pinson v. U.S. Dep’t
of Justice, 964 F.3d 65, 71–72 (D.C. Cir. 2020); Fourstar v.
United States, 950 F.3d 856, 859 (Fed. Cir. 2020). While
RAY V. LARA 15
the D.C. Circuit declined to articulate a precise test, Pinson,
964 F.3d at 73, the Federal Circuit adopted the Second
Circuit’s redressability and traceability nexus requirement.
Fourstar, 950 F.3d at 859. No circuit has concluded that
§ 1915(g) does not require a nexus between the prisoner’s
imminent danger and the violations of law alleged in the
prisoner’s complaint. 7
We agree with our sibling circuits that the PLRA
requires a nexus between the alleged imminent danger and
the violations of law alleged in the prisoner’s complaint. “In
a statutory construction case, analysis must begin with the
language of the statute itself; when the statute is clear,
judicial inquiry into its meaning, in all but the most
extraordinary circumstance, is finished.” Harris, 935 F.3d
at 673 (cleaned up). The statutory text in this case reveals
no explicit answer to whether a prisoner’s imminent danger
must be related to his claims. However, the position of the
imminent danger clause as an exception to the rule that three-
strikes prisoners “[i]n no event shall” be permitted to
proceed IFP indicates that Congress intended this clause to
apply narrowly. See Pettus, 554 F.3d at 297 (“[W]hen
construing the plain text of a statutory enactment, we do not
construe each phrase literally or in isolation. Rather, we
attempt to ascertain how a reasonable reader would
understand the statutory text, considered as a whole.”).
Implicit in the text of § 1915(g) is an understanding that the
exception functions as a limited safety valve for a prisoner
7
Ray contends that the Third Circuit implied in a footnote that no
nexus is required under the statute. See Gibbs v. Roman, 116 F.3d 83,
87 n.7 (3d Cir. 1997), rev’d en banc on other grounds by Abdul-Akbar
v. McKelvie, 239 F.3d 307 (3d Cir. 2001). Given that the appellant in
that case alleged imminent danger clearly related to his complaint, id.
at 84, we find Ray’s argument unpersuasive.
16 RAY V. LARA
who has exhausted his three strikes but nevertheless faces
imminent danger stemming from the violations of law
alleged in his complaint. Abdul-Akbar, 239 F.3d at 315;
Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus,
a nexus requirement is clear from the face of the text as a
whole.
This narrow view of the imminent danger exception also
comports with the purpose and context of the PLRA. See
Invesco High Yield Fund v. Jecklin, 10 F.4th 900, 903 (9th
Cir. 2021) (“Interpretation of a word or phrase depends upon
reading the whole statutory text, considering the purpose and
context of the statute, and consulting any precedents or
authorities that inform the analysis.” (quotation omitted)).
The PLRA was enacted in response to a notable increase in
prisoner litigation. Woodford v. Ngo, 548 U.S. 81, 84
(2006). In particular, the three-strikes provision aimed “to
disincentivize frivolous prisoner litigation.” Hoffman v.
Pulido, 928 F.3d 1147, 1148–49 (9th Cir. 2019). If we adopt
Ray’s argument that there is no nexus requirement, “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. Congress could not
have meant this narrow exception to swallow the rule. See
id. We therefore hold that the imminent danger exception to
the PLRA three-strikes provision requires a nexus between
the alleged imminent danger and the violations of law
alleged in the complaint.
Further, we are persuaded by the Second Circuit’s
articulation of the nexus test. Id. at 298–99 (“In deciding
whether such a nexus exists, we will consider (1) whether
the imminent danger of serious physical injury that a three-
RAY V. LARA 17
strikes litigant alleges is fairly traceable to unlawful conduct
asserted in the complaint and (2) whether a favorable judicial
outcome would redress that injury.”). By including an
exception for prisoners facing imminent danger of serious
physical injury in § 1915(g), Congress identified an injury-
in-fact for which three-strikes prisoners could seek a
remedy. Id. at 297–98. Thus, in order to qualify for the
§ 1915(g) imminent danger exception, a three-strikes
prisoner must allege imminent danger of serious physical
injury that is both fairly traceable to unlawful conduct
alleged in his complaint and redressable by the court. 8
Applying this nexus requirement to the case at bar, it is
clear that Ray does not qualify for the imminent danger
exception. Ray alleged only that Lara censored and
confiscated his prison mail. He did not allege any imminent
danger fairly traceable to Lara’s alleged censorship and
confiscation of prison mail. See id. at 298–99. Instead, he
asserted imminent danger due to his prison housing
conditions, which he does not allege are unlawful. Ray
provides no basis to believe that censorship of his mail
contributes to danger he faces as a high-risk inmate housed
in general population. Moreover, a favorable judicial
outcome would not redress any injury resulting from Ray’s
housing; it would merely redress allegations of mail
tampering. See id. Thus, we agree with the district court
8
Although Ray argues we should adopt a but-for causation test, we
agree with the Second Circuit that this broader formulation would thwart
the purpose of the three-strikes provision. See Pettus, 554 F.3d at 299
n.1.
18 RAY V. LARA
that Ray does not qualify for the imminent danger exception
to § 1915(g). 9
IV
Because Ray has both accumulated three strikes and
failed to establish a sufficient nexus between his alleged
imminent danger of serious physical injury and purported
mail tampering, he is barred from proceeding IFP. The
judgment of the district court is AFFIRMED.
9
In Ray’s motion to proceed IFP on appeal, he argued that he was
relocated within his prison in retaliation for filing a grievance against
Lara. This theory of imminent danger was not presented to the district
court, but it also fails to satisfy the § 1915(g) nexus requirement. Even
assuming Ray satisfied the traceability element under this theory, his
alleged imminent danger would not be redressable through the instant
action. See Pettus, 554 F.3d at 298–99.