Keith Thomas v. Eric Holder, Jr., et al

Filing

OPINION filed [1491568] (Pages: 8) for the Court by Judge Tatel, CONCURRING OPINION (Pages: 10) by Judge Tatel, [12-5228]

USCA Case #12-5228

Document #1491568

Filed: 05/06/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2014

Decided May 6, 2014
No. 12-5228

KEITH THOMAS,
APPELLANT
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL REAL PARTY
IN INTEREST AND ANTHONY HEDGPETH, WARDEN SALINAS
VALLEY STATE PRISON,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00459)

On Motion for Reconsideration

Sat Nam S. Khalsa, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on
the briefs was Anthony F. Shelley, appointed by the court.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Ronald C. Machen
Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.

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Before: TATEL, SRINIVASAN, and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Concurring opinion filed by Circuit Judge TATEL.
TATEL, Circuit Judge: After Appellant, a state prisoner,
failed to respond to our order to show cause why he should
not be compelled to pay a required filing fee, we dismissed
his appeal for failure to prosecute. Now supported by amicus
counsel, Appellant has moved for reconsideration of our
dismissal, contending that requiring him to pay a filing fee
would unconstitutionally deprive him of his right to access the
courts. Without reaching this constitutional question, we deny
the motion because the claims Appellant raises in his appeal
are devoid of merit and reinstating the appeal would therefore
be a pointless gesture.
I.
Appellant Keith Thomas is an inmate of Salinas Valley
State Prison in California. Acting pro se, he filed a petition
for writ of mandamus in the district court, seeking to compel
Attorney General Eric Holder to reclassify marijuana as a
Controlled Substances Act (CSA) Schedule V controlled
substance. Schedule V encompasses those drugs with a “low
potential for abuse,” a “currently accepted medical use in
treatment,” and little potential for “physical dependence or
psychological dependence.” 21 U.S.C. § 812(b)(5). By
contrast, Schedule I—marijuana’s current classification—is
reserved for drugs with a “high potential for abuse,” “a lack of
accepted safety for use . . . under medical supervision,” and
“no currently accepted medical use in treatment in the United
States.” Id. § 812(b)(1). Alleging that he suffered from
arthritis and osteoarthritis, Thomas claimed that marijuana’s

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Schedule I classification prevented him from obtaining the
drug in order to treat his pain. The district court denied
Thomas’s petition for mandamus, holding that the Attorney
General “has the discretion to reclassify a controlled
substance, and where the action petitioner seeks to compel is
discretionary, he has no clear right to relief and mandamus
therefore is not an appropriate remedy.” Thomas v. Holder,
No. 12-0459, slip op. at 2 (D.D.C. Mar. 26, 2012).
Thomas appealed. As he had before the district court, he
moved to proceed in forma pauperis, or IFP, which would
enable him to pay any filing fees in installments over time or
possibly not at all. See 28 U.S.C. § 1915(b). Under what is
known as the three-strikes provision of the Prison Litigation
Reform Act (PLRA), however, a prisoner may not proceed in
forma pauperis “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). Thomas has three strikes under the
PLRA. See Thomas v. Bush, No. 06-5015, 2006 U.S. App.
LEXIS 22767, at 1–2 (D.C. Cir. Sept. 6, 2006). We therefore
issued an order requiring Thomas to show cause within thirty
days “why he should not be required to pay the full appellate
filing fee before the court will consider his appeal.” When
Thomas failed to respond, we dismissed the case for lack of
prosecution. See D.C. Circuit Rule 38 (providing that the
court may impose “[s]anctions” such as “dismissal for failure
to prosecute”).
Subsequently, Thomas filed two motions that we have
construed as requests for reconsideration of our dismissal of
his appeal. See Thomas v. Holder, No. 12-5228 (D.C. Cir.

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Apr. 15, 2013). In these filings, he claimed that he had been
“in the hospital for [a] mental health crisis” and had been put
on “psychotropic medication.” He also appeared to contend
that his inability to pay the required filing fee had prevented
him from pursuing his appeal, asserting that he had “no way
to send a forma pauperis to the court to pay for the filing fee.”
In response to these filings, we appointed amicus counsel
“to present arguments in favor of appellant’s position” and
ordered both amicus and the government to brief “whether the
‘three-strikes provision’ of the [PLRA] unconstitutionally
denies indigent prisoners access to the courts,” as well as any
other issues they saw fit to address. Id. They have ably
performed that task.
II.
Amicus and the government dispute several issues,
among them whether Thomas would have standing to press
the claims he raised in his appeal were we to reinstate it, and
whether depriving him of the ability to proceed in forma
pauperis would violate the Due Process or Equal Protection
Clauses of the Constitution. But we have no need to consider
these questions because we agree with the government that
there is an independent reason to deny Thomas’s motion for
reconsideration: his underlying claims are wholly without
merit.
We begin with the principles—or more accurately, the
lack of principles—that govern this court’s disposition of
motions for reconsideration. No Federal or Circuit Rule
expressly gives movants like Thomas any particular
entitlement to have their appeals reinstated. Although D.C.
Circuit Rule 27(e)(2) provides that a party “adversely affected
by an order of the clerk disposing of a [procedural] motion
may move for reconsideration thereof within 10 days,” it says

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nothing about the circumstances in which such a motion will
be granted. According to the government, the situation we
face here is analogous to that confronting a district court
considering a motion for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b). In that context, it is
well-established that movants must show that their underlying
claims have at least some merit. They need not meet a
particularly “high bar” to satisfy this threshold requirement,
but they must provide at least “a hint of a suggestion” that
they might prevail. Marino v. DEA, 685 F.3d 1076, 1080
(D.C. Cir. 2012) (internal quotation marks omitted). This is so
even if the claims were not originally resolved on the merits
but were instead dismissed for failure to prosecute, as they
were here. In Lepkowsi v. Department of the Treasury, 804
F.2d 1310 (D.C. Cir. 1986), for example, the district court had
dismissed the case after the plaintiff failed to respond to the
defendant’s motion to dismiss, and then later denied the
plaintiff’s Rule 60(b) motion, which had argued that this
failure should be deemed excusable neglect. Id. at 1313. We
affirmed, holding in part that “motions for relief under Rule
60(b) are not to be granted unless the movant can demonstrate
a meritorious claim or defense; we cannot escape the fact that
the complaint and the proposed opposition were insufficient
as a matter of law.” Id. at 1314; see also id. at 1321
(Robinson, J., concurring) (parting ways with the majority as
to whether there had been excusable neglect, but agreeing that
denial should be affirmed because the claim “ha[d] little or no
chance of ultimately surviving”). Likewise, in Murray v.
District of Columbia, 52 F.3d 353 (D.C. Cir. 1995), the
district court had dismissed the case after the plaintiffs failed
to oppose a motion to dismiss, then denied their motion for
reconsideration. Id. at 355. Affirming, we concluded that we
had no need to consider the plaintiffs’ argument that their
attorneys never received notice of the motion to dismiss, as
plaintiffs had failed to satisfy the “threshold requirement” of

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showing that there was some “reason to believe that vacating
the judgment will not be an empty exercise or futile gesture.”
Id.; see also, e.g., Norman v. United States, 467 F.3d 773, 775
(D.C. Cir. 2006) (affirming denial of reconsideration of
dismissal for failure to prosecute because there was no
“underlying meritorious claim”) (internal quotation marks
omitted).
We believe the same prerequisite should operate in this
case. The requirement that parties seeking Rule 60(b) relief
show some prospect of succeeding on the merits flows from
the basic principle that courts should revive previouslydismissed claims only if they have some reason to believe that
doing so will not ultimately waste judicial resources. See
Murray, 52 F.3d at 355. This principle holds true here:
reviving Thomas’s appeal will constitute an “empty exercise
or futile gesture,” id., unless Thomas has some possibility of
prevailing.
Indeed, we see two especially good reasons to condition
the grant of Thomas’s motion for reconsideration on his
demonstrating a chance of succeeding on the merits. First,
Thomas claims that his appeal should be reinstated because
the PLRA’s three-strikes provision is unconstitutional as
applied to him. For this court to reach out and decide this
difficult and important question simply to reinstate a pointless
appeal would violate the norm of constitutional avoidance to
which we generally adhere. See Kalka v. Hawk, 215 F.3d 90,
97 (D.C. Cir. 2000) (“Federal courts should not decide
constitutional questions unless it is necessary to do so.”).
Second, the PLRA provides that a court “shall dismiss” an
IFP litigant’s case if the “appeal . . . is frivolous or malicious
. . . [or] fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2). Thus, even were we to grant Thomas
IFP status and reinstate his appeal, we would then have to

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promptly dismiss the case if his claims lack merit. What could
be a more “futile gesture” than reinstating an appeal only to
then immediately dismiss it?
Amicus concedes that we must deny the motion for
reconsideration if Thomas’s underlying claims lack merit, but
insists that his claims actually have merit. We disagree.
Recall that Thomas seeks to compel the Attorney General
to reclassify marijuana from Schedule I to Schedule V,
arguing primarily that the CSA requires such action because
of the drug’s accepted medical uses. Significantly, however,
he seeks such relief by writ of mandamus, “a drastic remedy”
reserved for “extraordinary situations.” In re Papandreou,
139 F.3d 247, 250 (D.C. Cir. 1998) (internal quotation marks
omitted). Mandamus may be granted only if “(1) the plaintiff
has a clear right to relief; (2) the defendant has a clear duty to
act; and (3) there is no other adequate remedy available to the
plaintiff.” Council of & for the Blind of Delaware County
Valley, Inc. v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983)
(en banc). Mandamus petitioners can satisfy neither of the
first two requirements if the act they seek to compel is
discretionary, as government officials have no clear duty to
perform such acts and petitioners have no clear right to
compel them to do so. See Heckler v. Ringer, 466 U.S. 602,
616–17 (1984). Here, as the district court explained, the
Attorney General has at least some discretion in determining
whether and how to classify marijuana. Although, as amicus
emphasizes, the statute does provide that the Attorney
General “shall” ensure that the provisions of the CSA are
applied to the substances as categorized, it also provides that
the Attorney General “may” decide whether to transfer a
particular substance from one classification to another—
precisely the relief Thomas seeks. See 21 U.S.C. § 811.
Indeed, confirming that the Attorney General could not

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possibly have a clear duty to act as Thomas demands, this
court held a little more than a year ago that the agency to
which the Attorney General has delegated his CSA
reclassification authority engaged in no abuse of discretion
when it refused to reclassify marijuana as appropriate for
medical use. See American for Safe Access v. DEA, 706 F.3d
438, 449–52 (D.C. Cir. 2013). To the extent Thomas also
contends that mandamus is warranted because the Attorney
General has, in violation of the Eighth Amendment, acted
with “deliberate indifference” to Thomas’s suffering, see
Estelle v. Gamble, 429 U.S. 97, 104 (1976), this claim also
necessarily fails. If the Attorney General could properly
conclude that marijuana is not appropriate for medical use, he
certainly has no clear duty to see that it is provided to Thomas
specifically.
Because Thomas has failed to provide even a “hint of a
suggestion” that he might succeed, Marino, 685 F.3d at 1080,
we see no reason to reinstate his appeal. Accordingly, his
motion for reconsideration is denied.
So ordered.

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TATEL, Circuit Judge, concurring: Having written the
court’s opinion, I obviously agree that we have no need to
assess the constitutionality of the Prison Litigation Reform
Act’s “three-strikes” provision. But because at our direction
court-appointed amicus and the government have fully briefed
that issue, and because this court, though regularly applying
the three-strikes provision, has yet to fully examine its
constitutionality, I write separately to explain my own doubts
on that question.
A bit of background is in order. When Congress enacted
the Prison Litigation Reform Act (PLRA) in 1996, it vastly
changed the scope of in forma pauperis (IFP) status for both
state and federal prisoners seeking to bring claims in federal
court. Pursuant to section 1915(b), prisoners granted leave to
proceed IFP are, unlike non-prisoner IFP litigants, still
generally required to pay filing fees. The statute, however,
allows them to pay the fees in installments over time—
potentially over a very long period of time. See 28 U.S.C.
§ 1915(b)(1)–(2). And for prisoners unable to pay even these
partial installments, the statute includes a “safety valve”
provision: “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 fee.” Id.
§ 1915(b)(4).
The PLRA’s three-strikes provision, section 1915(g),
imposes more onerous burdens on those prisoners who have
“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.” Id. § 1915(g). Unless such prisoners file a
habeas petition attacking the fact or duration of their
confinement—which is not a “civil action” to which the
PLRA applies, see Blair-Bey v. Quick, 151 F.3d 1036, 1039–

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42 (D.C. Cir. 1998)—or allege that they are in “imminent
danger of serious physical injury,” they are denied IFP status
altogether. 28 U.S.C. § 1915(g). The statute contains no safety
valve for such prisoners.
The three-strikes provision implicates two interrelated
lines of constitutional decisions. In the first, the Supreme
Court has held that filing and similar fees must be waived for
indigent litigants who raise certain types of claims. In the
foundational case of Griffin v. Illinois, 351 U.S. 12 (1956), a
four-Justice plurality held that a state violated both due
process and equal protection by requiring indigent convicted
defendants to pay a fee for the transcripts needed to appeal
their convictions. See id. at 15, 18–19 (plurality opinion).
Because criminal defendants have no constitutional right to
appeal their convictions in the first place, the decision appears
to have been grounded primarily in equal protection
principles: if a state affords some defendants a right to appeal
it must afford all defendants that same right. See M.L.B. v.
S.L.J., 519 U.S. 102, 111, 120 (1996) (“‘[M]ost decisions in
this area,’ we have recognized, ‘rest on an equal protection
framework,’ . . . for . . . due process does not independently
require that the State provide a right to appeal.” (internal
citations and alterations omitted) (quoting Bearden v.
Georgia, 461 U.S. 660, 665 (1983)); see also Griffin, 351
U.S. at 21–23 (Frankfurter, J., concurring in the judgment)
(relying principally on the Equal Protection Clause). The
Court has since extended these same principles to habeas
petitions, see Smith v. Bennett, 365 U.S. 708, 709 (1961) (“to
interpose any financial consideration between an indigent
prisoner of the State and his exercise of a state right to sue for
his liberty is to deny that prisoner the equal protection of the
laws”), as well as to litigation involving certain fundamental
interests, such as obtaining a divorce, see Boddie v.
Connecticut, 401 U.S. 371, 374 (1971), or appealing the

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termination of parental rights, see M.L.B., 519 U.S. at 123.
But the Court has declined to hold that the Constitution
requires the waiver of fees when indigent litigants seek to
vindicate less fundamental interests, such as securing a
discharge in bankruptcy, see United States v. Kras, 409 U.S.
434, 445–46 (1973), or appealing a denial of welfare benefits,
see Ortwein v. Schwab, 410 U.S. 656, 659–60 (1973) (per
curiam).
In the second line of cases, the Court has addressed the
rights of prisoners to access the courts. Griffin and Smith—
which, again, struck down fees imposed on defendants
challenging their convictions on direct appeal and habeas,
respectively—are among the decisions that first established
this right of access. See Lewis v. Casey, 518 U.S. 343, 354
(1996). But fees are hardly the only barriers that stand
between prisoners and the courts, and the Supreme Court has
held that the right of access also includes the right to
“adequate law libraries or adequate assistance from persons
trained in the law.” Bounds v. Smith, 430 U.S. 817, 828
(1977). The Court has also made clear that prisoners’ right of
access extends beyond litigation attacking their convictions
and sentences. In Wolff v. McDonnell, 418 U.S. 539 (1974),
the Court, perceiving in this regard “no reasonable distinction
between” habeas and civil rights actions, id. at 580, held that
the right encompasses prisoner litigation seeking to vindicate
“basic constitutional rights,” id. at 579. Thus, although the
Constitution “does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of filing
everything from shareholder derivative actions to slip-and-fall
claims,” it does require that inmates be provided “[t]he tools”
they “need in order to attack their sentences, directly or
collaterally, and in order to challenge the conditions of their
confinement.” Lewis, 518 U.S. at 355. Moreover, to trigger

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the right of access, these claims must qualify as nonfrivolous.
See id. at 352 n.2, 353 n.3.
This court applied these constitutional principles in In re
Green, 669 F.2d 779 (D.C. Cir. 1981), a case involving an
indigent prisoner categorically denied IFP status. The plaintiff
in Green had filed an incredible number of frivolous lawsuits,
apparently trying to “deliberately flood[] the courts with his
complaints and petitions . . . in a vain attempt to gain his
release from prison.” Id. at 782. The district court responded
by issuing an order providing that the prisoner could file an
action in this district only if he first paid all filing fees upfront
and made a deposit of $100 as security for costs. Id. at 784.
We vacated this order for two separate and independent
reasons. First, in prospectively denying IFP status in all future
cases, the order violated section 1915(a) of the IFP statute,
which, we held, required that a district court exercise its
discretion to determine whether to grant leave to proceed IFP
in each case. Id. at 786. Second, and of more relevance here,
we held that the order violated Green’s right of “meaningful
access to the courts” because it “erect[ed] a potentially
prohibitive financial barrier that encompasses all civil suits
including habeas corpus petitions as well as those involving a
fundamental constitutional right.” Id. We explained: “because
Green cannot comply with the court’s order if he is without
the necessary funds, the order effectively denies Green any
and all access to the district court.” Id. And because “[e]ven a
new, nonfrivolous claim submitted in good faith would not be
heard if Green could not meet the filing fee and cash deposit,”
the district court’s order was unconstitutional. Id.
Of course, nowhere in Green did we hold that any
requirement that a prisoner pay filing fees will necessarily be
unconstitutional. Indeed, in Tucker v. Branker, 142 F.3d 1294
(D.C. Cir. 1998), we distinguished Green and upheld the

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constitutionality of those PLRA provisions that require nonthree-strikes prisoners to generally pay some filing fees.
Characterizing Green as a case with “extreme” facts, we
explained that the fees the PLRA imposes on IFP prisoners
are “much less burdensome.” Id. at 1299. In particular, we
emphasized that because the statute allows payment by
installments, the required fees “never exact[] more than 20%
of an indigent prisoner’s assets or income.” Id. at 1298. And
given the safety valve provision, “even a destitute prisoner
may file his suit if he wants to, without having to pay any
initial fee.” Id. at 1297–98.
I struggle to see how we could similarly distinguish
Green in a case in which an indigent prisoner challenges the
PLRA’s three-strikes provision. The conditions the threestrikes provision imposes mirror the “extreme” facts of the
order struck down in Green. Like the order in Green, not only
does the three-strikes provision require prisoners to pay all
filing fees upfront, but it applies even to claims involving
fundamental constitutional rights. If prisoners have no ability
to pay these fees, then, as in Green, they face a “total barrier”
to bringing their claims—again, three-strikers enjoy no
statutory safety valve. Green, 669 F.2d at 785. The financial
conditions at issue in Green differ from those imposed by the
three-strikes provision in only one respect: the Green
petitioner was also required to pay a $100 deposit. This
difference, however, is constitutionally insignificant. Green
was deprived of his right to meaningful access to the courts
not because of the additional $100 deposit, but simply
because “if he [was] without the necessary funds,” whatever
that sum might be, he would be completely unable to file a
claim. Id. at 786. The same is true of prisoners subject to the
PLRA’s three-strikes provision.

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The government attempts to distinguish Green in several
ways. First, it points out that “Green predates the passage of
the PLRA by approximately fifteen years.” Appellees’ Br. 43.
But clearly, the fact that a statute postdates a constitutional
decision cannot somehow render that statute constitutional.
Otherwise, freedom of choice might have been constitutional
just because it emerged following Brown v. Board of
Education, 347 U.S. 483 (1954). But see Green v. County
School Board of New Kent County, 391 U.S. 430 (1968).
The government further contends that the three-strikes
provision, unlike the In re Green order, “only blocks access to
the court . . . without prepayment of fees for claims not
brought by prisoners in imminent danger of serious bodily
injury.” Appellees’ Br. 43. To be sure, the three-strikes
provision’s imminent danger exception may permit prisoners
to bring some of the claims they have a constitutional right to
bring. But what about prisoners advancing constitutional
claims that involve no imminent danger of serious bodily
injury, such as free speech, religious liberty, or right to refuse
medical treatment claims? The right to meaningful access to
the courts extends as well to these sorts of claims that seek to
vindicate “fundamental constitutional rights.” Lewis, 518 U.S.
at 351 (internal quotation marks omitted); Wolff, 418 U.S. at
579. The fatal flaw in the Green order was that it would have
prevented the prisoner from filing claims that he had a
constitutional right to access the courts in order to file. See
Green, 669 F.2d at 786. The three-strikes provision suffers
from the very same deficiency.
The government also repeatedly asserts that IFP status is
a “privilege” and not a “right.” E.g., Appellees’ Br. 25. As
support for this proposition, it relies primarily on In re
Sindram, 498 U.S. 177 (1991). In that case, the Supreme
Court, reasoning that it has “a duty to deny in forma pauperis

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status to those individuals who have abused the system,”
ordered that an especially abusive litigant be denied IFP status
in “all future petitions for extraordinary relief.” Id. at 180. As
we have since held, Sindram and cases like it overruled
Green’s statutory holding that section 1915(a) prohibits a
court from imposing “prospective denials of IFP status.” Hurt
v. SSA, 544 F.3d 308, 310 (D.C. Cir. 2008). But the Supreme
Court’s order in Sindram, like other orders the Court imposed
in similar cases, see In re Anderson, 511 U.S. 364, 365
(1994), was limited, applying only to requests for
extraordinary relief from the Court itself, thus closing just one
of the litigant’s potential avenues of access to that or any
court. Sindram therefore has little bearing on Green’s separate
constitutional holding, which remains binding in this Circuit.
See Aamer v. Obama, 742 F.3d 1023, 1033 (D.C. Cir. 2014)
(“[A]lternative grounds for a decision are nonetheless
precedential.”). The same goes for our own decisions denying
litigants leave to proceed IFP in circumstances that did not
require us to consider whether denial would prevent a
prisoner from raising a nonfrivolous constitutional claim. See
Mitchell v. Federal Bureau of Prisons, 587 F.3d 415, 417
(D.C. Cir. 2009) (denying application to proceed IFP of
prisoner who complained of improper notation in
administrative files and made vague claims regarding need for
medical treatment); Hurt, 544 F.3d at 310 (prospectively
denying “non-incarcerated litigant[]” privilege of proceeding
IFP); Butler v. U.S. Department of Justice, 492 F.3d 440,
445–47 (D.C. Cir. 2007) (denying prisoner leave to proceed
IFP in advancing a Freedom of Information Act claim). Thus,
although IFP status may well be a “privilege” for most
litigants raising most types of claims, the Supreme Court has
unequivocally held that waiver of filing fees is in some cases
constitutionally required, see, e.g., Smith, 365 U.S. at 712;
Griffin, 351 U.S. at 18–19, and our decision in Green makes
clear that prisoners have a right to a reduction in fees if

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necessary to enable them to vindicate fundamental
constitutional rights, see Green, 669 F.2d at 786.
Consistent with the foregoing, several Courts of Appeals
have left open the possibility that a prisoner might bring a
successful as-applied challenge to the PLRA’s three-strikes
provision. For example, although the Eleventh Circuit
rejected a claim that the three-strikes provision impeded the
right to access the courts, it did so only after observing that
the plaintiff’s “well-pled allegations . . . plainly advance no
cognizable fundamental interest.” Rivera v. Allin, 144 F.3d
719, 724 (11th Cir. 1998). Likewise, the Ninth Circuit held
that “where a fundamental right is not at stake, § 1915(g)
does not infringe upon an inmate’s meaningful access to the
courts.” Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir.
1999) (emphasis added); accord White v. State of Colorado,
157 F.3d 1226, 1233–34 (10th Cir. 1998); Carson v. Johnson,
112 F.3d 818, 821 (5th Cir. 1997).
To be sure, other Circuits have held as a categorical
matter that the three-strikes provision does not infringe
prisoners’ right of access to the courts. These decisions rest
on two primary rationales, both of which are foreclosed in this
Circuit by Green and are in any event unconvincing.
First, some courts have reasoned that a three-strikes
litigant may simply find a way to pay the required fees. As the
Seventh Circuit put it, prisoners may pay “using assets on
hand,” “[s]ave up in advance,” “[b]orrow the filing fee from
friends or relatives,” or “[b]orrow the filing fee from a
lawyer.” Lewis v. Sullivan, 279 F.3d 526, 530 (7th Cir. 2002);
accord Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir.
2001). These ways of cobbling together filing fees were,
however, presumably equally available to the petitioner in
Green, and we nonetheless held that the financial burden

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imposed by the district court’s order—again, essentially the
same as that imposed by the three-strikes provision—
effectively deprived him of access to the courts. See Green,
669 F.2d at 786. In so doing, we adhered to the logic the
Supreme Court has applied in holding that even minimal fees
must sometimes be waived, logic that I believe better reflects
the reality prisoners face. As the Court explained in Smith,
“While $4 is, as the State says, an ‘extremely nominal’ sum, if
one does not have it and is unable to get it the fee might as
well be $400.” 365 U.S. at 712.
Second, other courts have held that the three-strikes
provision does not deny indigent prisoners access to the
courts because such prisoners may simply “[s]ue in state
rather than federal court.” Lewis, 279 F.3d at 530; accord
Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 (4th Cir. 2001)
(en banc); Wilson v. Yaklich, 148 F.3d 596, 605 (6th Cir.
1998). But prisoners may be unable to bring some claims in
state court. See Richard S. Arnold, The Power of State Courts
to Enjoin Federal Officers, 73 Yale L.J. 1385 (1964)
(discussing limits on state courts’ ability to entertain claims
against federal officials). And in any event, the plaintiff in
Green was also capable of filing claims in state court, as he in
fact had. See Green, 669 F.2d at 781. Although we never said
so expressly, our conclusion that the Green petitioner had
been deprived of his right to meaningful access likely
reflected, in part, our application of the equal protection
principles that underlie that right: Green was entitled to
litigate his claims in this court because other litigants may do
so. Such reasoning would echo the Supreme Court’s rejection
of the argument that a state could impose filing fees on
indigent habeas petitioners because they could simply seek
the writ in a federal court. “But even though this be true,” the
Court declared, “it would ill-behoove this great State [(Iowa)],
whose devotion to the equality of rights is indelibly stamped

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upon its history, to say to its indigent prisoners seeking to
redress what they believe to be the State’s wrongs: ‘Go to the
federal court.’” Smith, 365 U.S. at 713.
For these reasons, I have grave doubts that the PLRA’s
three-strikes provision may be constitutionally applied to
indigent prisoners who seek access to the courts in order to
bring claims involving fundamental constitutional rights. In
the appropriate case, this court should address this unsettled
issue. In so suggesting, I fully understand that Congress was
responding to a very real problem when it enacted the PLRA.
It is undoubtedly true that much prisoner litigation is not only
frivolous and abusive, but also imposes substantial costs on
the federal courts. That said, it is also undoubtedly true that
some prisoners have legitimate constitutional claims. See,
e.g., Brown v. Plata, 131 S. Ct. 1910 (2011) (upholding order
requiring California to reduce prison overcrowding that had
produced pervasive constitutional violations). So while
faithfully honoring Congress’s goal of reducing abusive
litigation, the federal courts remain constitutionally obligated
to hear such claims, for “[o]nly by zealously guarding the
rights of the most humble, the most unorthodox and the most
despised among us can freedom flourish and endure in our
land.” Bridges v. Wixon, 326 U.S. 135, 166 (1945).

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