Rivera v. Allin

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________________

No. 97-2868
________________________________
D.C. Docket No. 97-735-CV-J-20C

VINCENT F. RIVERA,

Plaintiff-Appellant,

versus

CATHERINE B. ALLIN, Health Services
Administrator; TERESA K. DOWLING,
Health Information Specialist, et al.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________________________________________________

(June 23, 1998)

Before HATCHETT, Chief Judge, RONEY and LAY*, Senior Circuit Judges.

__________________________________
*
Honorable Donald P. Lay, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
HATCHETT, Chief Judge:

In this appeal, we uphold as constitutional the “three strikes” in forma pauperis

provision of 28 U.S.C.A. § 1915(g) (West Supp. 1998), section 804(d) of the Prison

Litigation Reform Act of 1995 (PLRA), Title VIII of the Omnibus Consolidated

Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1374-

75 (April 26, 1996).

I. BACKGROUND

On May 9, 1997, appellant Vincent Rivera, a Florida prisoner, filed a civil rights

complaint under 42 U.S.C. § 1983 in the United States District Court for the Northern

District of Florida. Proceeding without counsel, Rivera alleged that a prison doctor

“disregard[ed]” his medical needs and “fondle[d]” his genitals during a physical

examination. Rivera sought punitive damages, correction of records and restoration of

“gain time” lost due to disciplinary action.

Contemporaneously with his complaint, Rivera sought leave to proceed in forma

pauperis (IFP), that is, without prepaying the entire $150 filing fee, and attached an

affidavit of indigency and a certified copy of his prison account statement. A magistrate

judge issued a report and recommendation that the district court transfer Rivera’s case to

the Middle District of Florida, which encompassed Rivera’s place of incarceration.

Rivera objected to the recommendation, contending that the Middle District had

previously “refused to provide [him] with due process of law” in two prior cases, Rivera

v. Singletary, 96-1307-CIV-J-99C, and Rivera v. Perrin, 96-650-CIV-J-20B. A district

2
judge of the Northern District, however, adopted the magistrate judge’s recommendation

and transferred the case.

On June 23, 1997, before service of process on the defendants, a district judge of

the Middle District denied Rivera’s pending application to proceed IFP. The court took

judicial notice of three of Rivera’s prior prison-generated lawsuits that judges of the

Middle District had dismissed as frivolous, malicious or failing to state a claim upon

which relief may be granted: (1) Rivera v. Tornin, 93-170-CIV-ORL-22; (2) Rivera v.

Arocho, 96-275-CIV-J-99S; and (3) Rivera v. Parker, 96-325-CIV-J-10. Because of these

three “prior occasions” and Rivera not being in “imminent danger of serious physical

injury[,]” the court concluded that 28 U.S.C. § 1915(g) rendered Rivera ineligible for IFP

status. The court dismissed Rivera’s case without prejudice, advising that he “may

initiate a new civil rights action by filing a new civil rights complaint form and the full

$150.00 filing fee.”

Following the dismissal of his case, Rivera filed a notice of appeal and an updated

affidavit of indigency in the district court. Finding that Rivera did not appeal in good

faith, the district court ordered him to prepay the entire $105 appellate filing fee. Rather

than requiring him to prepay the entire fee, however, the clerk of this court obtained

Rivera’s written consent to deduct from his prison account an initial partial payment, and

subsequent monthly installment payments, to satisfy the appellate filing fee.

On February 12, 1998, this court sua sponte appointed the Federal Public

Defenders for the Middle and Southern Districts of Florida to represent Rivera on appeal.

3
The United States intervened pursuant to 28 U.S.C. § 2403(a), and the State of Florida

accepted our invitation to participate as amicus curiae. Expediting the appeal, the court

directed Rivera, the United States and Florida to address the constitutionality of section

1915(g) “in addition to other issues which they wish to raise.”1

II. DISCUSSION

Leave to proceed IFP is, and always has been, the exception rather than the rule.

To commence a civil lawsuit in federal district court, the general rule is that initiating

parties must prepay a filing fee. See 28 U.S.C.A. § 1914(a) (West Supp. 1998).

Similarly, to appeal a judgment of the district court, appellants ordinarily prepay a filing

fee. See 28 U.S.C.A. § 1913 & note (schedule of fees).2 Prior to the enaction of the

PLRA, however, federal courts could waive the filing fee requirement for any indigent,

regardless of prisoner status:

Any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding, civil or criminal, or appeal therein, without
prepayment of fees and costs or security thereof, by a person
who makes affidavit that he is unable to pay such costs or
give security thereof.

28 U.S.C. § 1915(a) (1994).

1
On March 19, 1998, Rivera and the United States participated in oral argument
in Miami, Florida.
2
The same is generally true of the Supreme Court, which “may fix the fees to be
charged by its clerk.” 28 U.S.C. § 1911 (1994).
4
 On April 26, 1996, this law changed when the President signed into law the PLRA.

See Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir. 1996) (“[T]he PLRA became

effective on the day it was signed into law.”). Under the PLRA, federal courts may

continue to except non-prisoner indigents from prepaying filing fees. See 28 U.S.C.A. §§

1915(a)(1) (West Supp. 1998). Courts may not, however, continue to except prisoner

indigents from prepaying filing fees.3 Instead, prisoner indigents must prepay at least a

partial filing fee:

[I]f a prisoner brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the full amount
of a filing fee. The court shall assess and, when funds exist,
collect, as a partial payment of any court fees required by law,
an initial partial filing fee . . . [followed by] monthly
payments . . . .

28 U.S.C.A. § 1915(b)(1)-(2) (partial and installment payment formulas omitted). A

limited exception exists only for prisoners who have “no assets and no means by which to

pay the initial partial filing fee.” 28 U.S.C.A. § 1915(b)(4).4 In Mitchell v. Farcass, this

court recently rejected a prisoner’s equal protection challenge to the PLRA’s filing fee

provisions’ disparate treatment of prisoner indigents vis-a-vis non-prisoner indigents,

concluding that “Congress had ample justification (e.g., prisoners often have an

3
The PLRA, including section 1915(g), applies only to civil cases and does not,
for example, apply to habeas corpus proceedings. See Anderson v. Singletary, 111 F.3d
801, 805 (11th Cir. 1997).
4
However, “the prisoner is still obligated to pay the full filing fee when the
money does become available.” McGore v. Wrigglesworth, 114 F.3d 601, 606 (6th Cir.
1997).
5
abundance of free time, live in a nearly cost-free environment, and have unique incentives

to file meritless or frivolous lawsuits) in differentiating between” them. 112 F.3d 1483,

1489 (11th Cir. 1997).

At issue today is the PLRA’s treatment of “frequent filer” prisoner indigents (that

is, prisoners who have had at least three prior prison-generated lawsuits or appeals

dismissed as frivolous, malicious or failing to state a claim upon which relief may be

granted) vis-a-vis other prisoner indigents:

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.

28 U.S.C.A. § 1915(g). This provision of the PLRA, “commonly known as the ‘three

strikes’ provision,” requires frequent filer prisoners to prepay the entire filing fee before

federal courts may consider their lawsuits and appeals. Lyon v. Krol, 127 F.3d 763, 764

(8th Cir. 1997). The only exception to section 1915(g) is if the frequent filer prisoner is

“under imminent danger of serious physical injury.” 28 U.S.C.A. § 1915(g).

Raising issues of first impression in this circuit, Rivera challenges the

constitutionality of section 1915(g) on four grounds: (1) the First Amendment right to

access the courts; (2) the separation of judicial and legislative powers; (3) the Fifth

Amendment right to due process of law; and (4) the Fourteenth Amendment right to equal

6
protection, as incorporated through the Fifth Amendment. Alternatively, Rivera raises

retroactivity concerns, contending that the district court erred in counting as strikes

lawsuits dismissed prior to April 26, 1996, the date the PLRA became effective. Finally,

Rivera asserts that two of his prior cases, Rivera v. Arocho, 96-275-CIV-J-99(S), and

Rivera v. Parker, 96-325-CIV-J-10, were not proper “strikes” that is, they were not

dismissed as frivolous, malicious or failing to state a claim upon which relief may be

granted.

Rivera’s constitutionality and retroactivity arguments “present legal questions that

we address in a plenary fashion.” Mitchell, 112 F.2d at 1487. Similarly, we review the

district court’s determination of qualifying strikes de novo. See McGore v.

Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997); Adepegba, 103 F.3d at 387.

A.

The United States Constitution provides that “Congress shall make no law . . .

abridging . . . the right of the people . . . to petition the Government for a redress of

grievances.” U.S. Const. amend I. Rivera focuses on one aspect of the First Amendment,

“the right of access to the courts[.]” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S.

731, 741 (1983). Specifically, Rivera argues that section 1915(g)’s purpose and effect is

to prevent him and other frequent filer prisoner indigents from filing civil lawsuits -- even

meritorious ones -- since they cannot afford to prepay the entire filing fee.

We disagree. “[T]he right of access to federal courts is not a free-floating right,

but rather is subject to Congress’s Article III power to set limits on federal legislation.”

7
Roller v. Gunn, 107 F.3d 227, 231 (4th Cir.), cert. denied, 118 S. Ct. 192 (1997).5

Although it had the power to do so, Congress did not repeal any particular cause-of-action

available to prisoners. Rather, “[s]ection 1915(g) does not prevent a prisoner with three

strikes from filing civil actions; it merely prohibits him from enjoying IFP status.”

Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997); see also Lyon, 127 F.3d at 765

(“Section 1915(g) does not prohibit prisoners from pursuing legal claims if they have had

‘three strikes’ or three prior dismissals. It only limits their ability to proceed [IFP].”).6

Through the PLRA, Congress changed only the rules regarding IFP status. To be sure,

proceeding IFP in a civil case is a privilege, not a right -- fundamental or otherwise. See

Adepegba, 103 F.3d at 386. As such, imposition of a modest filing fee on prisoners with

“three strikes” is reasonable because “Congress is no more compelled to guarantee free

access to federal courts than it is to provide unlimited access to them.” Roller, 107 F.3d

at 231.

5
In Roller, the Fourth Circuit rejected the prisoner’s contention that the filing fee
and cost provisions of the PLRA (28 U.S.C. § 1915(b)(1), (b)(2) and (b)(4)) violated “his
constitutional right of access to the courts,” finding them to be only “mild” barriers to the
courthouse. 107 F.3d at 231, 233. But cf. Church v. Attorney Gen. of Va., 125 F.3d 210,
212 (4th Cir. 1997) (“Although the increased up-front cost imposed by [section 1915(b)]
may deter prisoners from pursuing claims that they may otherwise have pursued–one of
the arguments for enacting the PLRA–their right of access to the courts has nevertheless
been diminished[.]”). The Roller prisoner, however, did not challenge the “three strikes”
provision.
6
In Carson, the Fifth Circuit rejected the prisoner’s contention that “the ‘three
strikes’ provision of the PLRA is unconstitutional because it blocks access to the
courts[.]” 112 F.3d at 821.
8
 A review of Rivera’s underlying lawsuit does not change our conclusion. The

Supreme Court has mandated waivers of filing fees in civil cases only where “the litigant

has a ‘fundamental interest at stake.’” Carson, 112 F.3d at 821 (quoting M.L.B. v. S.L.J.,

117 S. Ct. 555, 562 (1996)). The Fifth Circuit, collecting cases, outlined the boundaries:

“Examples of proceedings that implicate fundamental interests are divorce actions . . . and

terminations of parental rights . . . . Examples of interests that do not rise to this level are

bankruptcy filings . . . and welfare benefit determinations . . . .” Carson, 112 F.3d at 821

(citations omitted). Rivera’s well-pled allegations (that the prison doctor disregarded his

medical needs and fondled his genitals during an exam) plainly advance no cognizable

fundamental interest. See Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“In order to state a

cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to

evidence deliberate indifference to serious medical needs. It is only such indifference that

can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.”).

Unlike the parent in M.L.B. v. S.L.J. and the married couple in Boddie v. Connecticut,

Rivera faces no “state controls or intrusions on family relationships.” Roller, 107 F.3d at

232 n.1 (quoting M.L.B., 117 S. Ct. at 563-64; citing Boddie v. Connecticut, 401 U.S.

371 (1971)). And, unlike Rivera, neither the M.L.B. parent nor the Boddie couple had a

history of abusing the judicial system.7

7
This circuit has upheld pre-filing screening restrictions on litigious plaintiffs,
reasoning that the plaintiffs were not “completely foreclosed from any access to the
court.” Martin-Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir. 1993) (collecting cases).
9
 Moreover, the PLRA does not render frequent filer prisoners who cannot prepay

the entire filing fee without means to reach the courthouse’s doors to prevent grave bodily

harm. In drafting the exception to section 1915(g), Congress inherently recognized

prisoners’ fundamental interest to be free of unwarranted “imminent danger of serious

physical injury.” 28 U.S.C.A. § 1915(g).8 Rivera, however, is in no such danger. In fact,

he concedes that the doctor stopped fondling him immediately upon request.

Accordingly, we find no violation of the First Amendment right to access the

courts. Rivera’s and other frequent filer prisoners’ access to the courts remains

“adequate, effective, and meaningful” even though section 1915(g) serves to disqualify

them from prepaying partial, as opposed to entire, federal court filing fees during their

term of incarceration. Bounds v. Smith, 430 U.S. 817, 822 (1977); see also Hampton v.

Hobbs, 106 F.3d 1281, 1284 (6th Cir. 1997).9

8
See generally Gibbs v. Roman, 116 F.3d 83, 86-87 (3d Cir. 1997) (vacating
district court’s application of section 1915(g) and remanding for a determination of
whether the prisoner “was in imminent danger of bodily harm . . . when the alleged
incidents occurred” based on the prisoner’s well-pled allegations).
9
In Hampton, the Sixth Circuit held that “the fee provisions of the [PLRA] do not
deprive prisoners of their right of access to the courts.” 106 F.3d at 1286. Like the Roller
prisoner, the Hampton prisoner did not challenge section 1915(g). Recently, however, the
Sixth Circuit held that Ҥ 1915(g) does not infringe upon the fundamental right of access
to the courts.” Wilson v. Yaklich, Nos. 96-3023, 96-4323, slip op. at 13 (6th Cir. June 8,
1998).

We note, but place no reliance upon, the Sixth Circuit’s reasoning that section
1915(g) does not prevent frequent filer prisoner indigents from proceeding IFP in state
court. See Wilson, slip op. at 13; see also Hampton, 106 F.3d at 1284 (The PLRA “does
not affect an inmate’s ability to seek relief in state court or through state grievance
procedures.”). But cf. Lyon v. Krol, 940 F. Supp. 1433, 1437 (S.D. Iowa 1996)
10
 B.

“It is the intention of the Constitution that each of the great co-ordinate

departments of the government -- the legislative, the executive, and the judicial -- shall

be, in its sphere, independent of the others.” United States v. Klein, 80 U.S. (13 Wall.)

128, 147 (1871). Although it is Congress’s job to enact laws, “[i]t is emphatically the

province and duty of the judicial department to say what the law is[]” and apply it to the

facts at hand. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Rivera contends

that Congress’s enaction of section 1915(g) infringes upon the federal courts’ ability to

adjudicate independently frequent filer prisoners’ “fourth through nth cases[.]” Duvall v.

Miller, 122 F.3d 489, 490 (7th Cir. 1997). Specifically, Rivera argues that section

1915(g) prevents courts from deciding these cases on their merits and, at most, allows

courts to perform only the rote task of counting “strikes.”10

Rivera’s argument fails. As we explained in the preceding part of this opinion,

section 1915(g) neither creates nor takes away any cause-of-action from frequent filer

prisoners. Congress simply decided that the government need not subsidize these

prisoners’ lawsuits and appeals. See generally U.S. Const. art. I § 8 (Congress’s spending

(“Although inmates can also bring § 1983 claims in state court, plaintiffs have an
important interest in access to federal courts for vindication of their federal constitutional
rights.”), appeal dismissed and remanded, 127 F.3d 763 (8th Cir. 1997).
10
No other circuit has apparently addressed whether section 1915(g) violates the
separation of powers. See Carson, 112 F.3d at 821 n.3 (allegation that “congress [sic]
wrongfully meddled with the judiciary” did not preserve prisoner’s argument that section
1915(g) violates the separation of powers).
11
power). As long as frequent filer prisoners prepay the entire filing fee, courts will review

their cases in the same manner as any other. Additionally, because section 1915(g) is

purely procedural, Congress in no way “prescribe[d] rules of decision to the judicial

department of the government in cases pending before it[.]” Klein, 80 U.S. (13 Wall.) at

146.

The Supreme Court authorities upon which Rivera relies support, rather than belie,

our conclusion. First, the unconstitutional legislation at issue in Plaut v. Spendthrift

Farm, Inc., 15 U.S.C. § 78aa-1, “command[ed] the federal courts to reopen final

judgments[.]” 514 U.S. 211, 219 (1995). Section 1915(g), in contrast, recognizes the full

force and effect of federal courts’ final judgments. It simply attaches an unremarkable

consequence, that is, denial of IFP status, to three or more judgments/dismissals on

certain grounds that courts, not Congress, exclusively control.

Next, Rivera cites Martinez v. Lamagno to support the notion that counting

prisoners’ strikes is too “petty” a task for a court to perform and still retain its

independence. 515 U.S. 417, 426 (1995). Martinez, however, was simply a statutory

construction case. The issue in that case -- whether a federal court may review the

Attorney General’s certification that a federal agent acted within the scope of

employment during his allegedly tortious conduct -- did not turn on separation of powers

principles. Instead, in its attempt to ascertain the “purpose of Congress” behind the

statute at issue, the Court rejected the agent’s reading of the statute; that is, that the

executive branch’s finding of fact bound the district court. Martinez, 515 U.S. at 424.

12
Labeling this construction “perplexing,” “anomalous,” “strange” and “untenable,” the

Court opined that it “would cast Article III judges in the role of petty functionaries,

persons required to enter as a court judgment an executive officer’s decision, but stripped

of capacity to evaluate independently whether the executive’s decision is correct.”

Martinez, 515 U.S. at 426, 429-30. Interestingly enough, the Court declined to employ

the phrase “unconstitutional” or “potentially unconstitutional” among the other colorful

adjectives used to describe the agent’s reading of the statute.

Even if Martinez could fairly be read as a separation of powers case, section

1915(g) calls for more than just the performance of “petty” judicial tasks. 515 U.S. at

426. Prior to denying leave to proceed IFP, courts must review a frequent filer prisoner’s

well-pled allegations to ensure that the prisoner is not “under imminent danger of serious

physical injury.” 28 U.S.C.A. § 1915(g). Similarly, the task of counting strikes involves

more than sophomoric arithmetic. Courts must search records of the prisoner’s prior

federal cases to determine whether judicial officers “on 3 or more prior occasions”

entered orders of dismissals and, if so, whether the reason for the dismissals were

frivolousness, maliciousness or failure to state a claim upon which relief may be granted.

28 U.S.C.A. § 1915(g).

Finally, our conclusion reconciles with United States v. Sioux Nation of Indians,

where the Court held that “Congress’ mere [statutory] waiver of the res judicata effect of

a prior judicial decision rejecting the validity of a legal claim against the United States

does not violate the doctrine of separation of powers.” 448 U.S. 371, 407 (1980).

13
Inherent in its holding, the Sioux Nation Court wrestled with issues of interbranch

conflicts-of-interest in a judicial proceeding. In fact, the Court distinguished the facts of

Sioux Nation from the facts of Klein, where “Congress was attempting to decide the

controversy at issue in the Government’s own favor.” Sioux Nation, 448 U.S. at 405;

Klein, 80 U.S. (13 Wall.) at 146-47. Unlike in Sioux Nation or Klein, however, the

United States is not a party to the underlying lawsuit in this case. Rivera is in the custody

of Florida, not the United States.

Section 1915(g), of course, applies with equal force to federal prisoners with three

strikes. The fact remains, however, that in enacting the purely procedural section

1915(g), “Congress made no effort . . . to control [federal courts’] ultimate decision of

[frequent filer prisoners’] claim[s]” sought to be litigated under the IFP statute. Sioux

Nation, 448 U.S. at 405 (emphasis added). Accordingly, we hold that section 1915(g)

does not violate the separation of powers.

C.

The Fifth Amendment prohibits the federal government from depriving a person of

“life, liberty, or property, without due process of law.” U.S. Const. amend V. “[T]his

clause . . . provides two different kinds of constitutional protection: procedural due

process and substantive due process.” McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir.

1994) (en banc), cert. denied, 513 U.S. 1110 (1995). Rivera does not specify the kind of

due process that he claims section 1915(g) violates. Instead, he advances the case of

Richards v. Jefferson County, Ala., 116 S. Ct. 1761 (1996), and asserts that section

14
1915(g)’s “three strikes” provision is the functional equivalent of an unconstitutional

application of res judicata.

In Richards, a group of workers filed a lawsuit in state court challenging a local

occupation tax as unconstitutional. 116 S. Ct. at 1764. On appeal, the Alabama Supreme

Court concluded that res judicata barred the lawsuit because another group of workers

with “essentially identical” interests had previously and unsuccessfully challenged the

same tax. 116 S. Ct. at 1765. The United States Supreme Court reversed, holding that

this “extreme” application of res judicata failed to provide the present group of workers

due process of law. 116 S. Ct. at 1765. The Court reasoned that to effectuate the “deep-

rooted historic tradition that everyone should have his own day in court[,]” the former

group of workers’ judgment did “not conclude the right of strangers to those

proceedings.” 116 S. Ct. at 1766 (internal quotation marks and citations omitted).

Rivera contends that section 1915(g), like an “extreme” application of res judicata,

effectively precludes frequent filer prisoner indigents from bringing future claims as a

result of dismissals of factually unrelated prior cases. We, however, are not persuaded.

Rivera’s analogy to Richards merely re-advances, albeit creatively, his position that

section 1915(g) abridges his First Amendment right to access the courts, which we have

rejected in section II, part A of this opinion.

In any event, Richards has no application to the “three strikes” provision. Unlike

the present group of workers in Richards, Rivera was a party to the prior cases. Indeed,

Rivera had a full and fair “opportunity to participate in” at least three prior cases before

15
the district court revoked his privilege to proceed IFP. Richards, 116 S. Ct. at 1768. The

only consequence flowing from Rivera’s prior dismissals -- in contrast to the state

supreme court’s use of the former group of workers’ unsuccessful lawsuit in Richards --

is denial of future applications to pay only a partial, as opposed to the entire, filing fee.

As we have reiterated time and again, section 1915(g) does not, in and of itself, dictate

any specific decision on the merits. See Dist. Ct. Order at 2 (denying Rivera’s lawsuit

without prejudice, stating that he “may initiate a new civil rights action by filing a new

civil rights complaint form and the full $150.00 filing fee”).

Accordingly, we hold that section 1915(g) does not violate Rivera’s and similarly

situated prisoners’ Fifth Amendment right to due process of law.11 Accord Parcell v.

United States, 218 F.2d 232, 235 (5th Cir. 1955) (denying leave to proceed IFP “does not

offend the requirements of due process”); cf. Hampton, 106 F.3d at 1287 (“Hampton’s

ability to petition the government for redress of grievances has not been deprived or

limited by the [PLRA] and thus that interest cannot provide the basis for a due process

violation.”).

11
Although the Supreme Court, like Rivera, did not specify the kind of due
process relied upon, we read Richards as a procedural due process case. Even if Rivera’s
challenge could fairly be read to implicate substantive due process, however, we find no
such violation. See Wilson, slip op. at 15 (“[T]he provisions of 28 U.S.C. § 1915(g) do
not contravene substantive due process principles.”); cf. Hampton, 106 F.3d at 1288
(rejecting prisoner’s substantive due process claim as to the PLRA’s partial filing fee
provision because it does not “violate[] any right, privilege, or immunity secured by the
Constitution or by federal statute” and passes rational basis review) (internal quotation
marks omitted).
16
 D.

“[I]f a law neither burdens a fundamental right nor targets a suspect class,” it does

not violate the Fourteenth Amendment’s Equal Protection Clause, as incorporated

through the Fifth Amendment’s Due Process Clause, “so long as it bears a rational

relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996) (discussing

the Fourteenth Amendment’s Equal Protection Clause); Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 217 (1995) (Fifth Amendment right of equal protection is “precisely

the same” as Fourteenth Amendment right of equal protection) (internal quotation marks

and citations omitted). Rivera does not, and cannot, contend that prisoner indigents

(specifically, frequent filer prisoner indigents) form a suspect or quasi-suspect class. See

Carson, 112 F.3d at 821-22 (“Neither prisoners nor indigents constitute a suspect class.”);

Mitchell, 112 F.3d at 1488 n.2 (“Mitchell . . . does not contend that prisoners (or

specifically indigent prisoners) are a suspect class[.]”). And, for the reasons stated in

section II, part A of this opinion, section 1915(g) does not burden a fundamental right.

As such, we decline Rivera’s invitation to review section 1915(g) under any standard

more onerous than rational basis.

Unquestionably, the ends that Congress enacted section 1915(g) to achieve -- the

curtailment of “abusive prisoner tort, civil rights and conditions litigation” and

“preserving scarce judicial resources” -- are legitimate. Mitchell, 112 F.3d at 1488 (citing

Anderson, 111 F.3d at 805); Carson, 112 F.3d at 822; see also Hampton, 106 F.3d at 1287

(“Deterring frivolous prisoner filings in the federal courts falls within the realm of

17
Congress’s legitimate interests[.]”); Roller, 107 F.3d at 234 (Congress sought to curtail

“abuse of the federal judicial system by inmates[.]”).

Section 1915(g) rationally serves these ends through its requirement that prisoner

indigents with three strikes prepay the entire filing fee before the court may further

review their lawsuit (unless imminent danger of serious physical injury exists). In

Mitchell, we found a rational relation between the PLRA’s ends, that is, curtailing abuse

of the federal judicial system, and its means, that is, requiring only prisoner indigents, as

opposed to non-prisoner indigents, to prepay a partial filing fee. See 112 F.3d at 1488

(“Clearly, Congress had a rational basis to believe that the fee requirements of the PLRA

would further [its] objective.”) (citations omitted); see also Roller, 107 F.3d at 233 (“The

PLRA amendments easily satisfy the rational basis standard.”). It is equally rational for

Congress to separate frequent filer prisoner indigents from prisoner indigents who file

less frequently and disqualify the former class from the luxury of having to advance only

a partial amount (or, if the prisoner is destitute, no amount) of the filing fee.

Plainly, Congress had a rational basis to believe that revoking altogether IFP

privileges from prisoners with a demonstrated history of abuse -- that is, three of more

dismissals on specified grounds -- would further the goal of curtailing abusive prison

litigation. Congress did not enact the PLRA in a vacuum. It held hearings and rendered

findings, concluding that prisoners file more frivolous lawsuits than any other class of

persons. See Hampton, 106 F.3d at 1286-87 (quoting legislative history). Certainly,

Congress could rationally build upon this notion in targeting the most litigious of this

18
already-litigious class of persons. See Carson, 112 F.3d at 822 (“It is . . . undebatable that

prohibiting litigants with a history of frivolous or malicious lawsuits from proceeding IFP

will deter . . . abuses [of the federal judicial system].”).12

Rivera has little, if any, Article III support for his contention. In Lyon v. Krol, the

district court held that section 1915(g) violated the equal protection rights of prisoners

that would otherwise qualify for IFP status. 940 F. Supp. 1433, 1439 (S.D. Iowa 1996).

Two judges of the Eighth Circuit, however, dismissed the appeal, concluding that Lyon

lacked standing to challenge section 1915(g)’s constitutionality because sufficient funds

existed in his prison account to prepay the entire filing fee. Lyon, 127 F.3d at 765-66.

Whereupon, the court remanded the case “so that the district court may set a time by

which [the prisoner] must pay the filing fee or have [the] underlying . . . claim dismissed.”

127 F.3d at 766. One judge filed a dissenting opinion, agreeing with the district court that

“section 1915(g) violates prisoners’ equal protection rights.” 127 F.3d at 766 (Heaney, J.,

12
The Sixth Circuit recently held that section 1915(g) does not run afoul of the
Equal Protection Clause:

In an effort to lessen the crush of [frivolous] filings on the
courts, Congress has concluded that prisoners who are not
under threat of immediate harm and who have, on at least
three prior occasions, filed frivolous lawsuits should be
barred, not from ever filing another law suit in federal court,
but merely from instituting such claims at additional expense
to the taxpayers. Such [disparate treatment] . . . has a rational
basis.

Wilson, slip op. at 12.
19
dissenting). Of course, neither the district court’s order nor the circuit judge’s dissenting

opinion is precedent in this or any other circuit, and we do not find these judges’ view

persuasive.

Rather, for the reasons stated above, we, like the Fifth and Sixth Circuits, hold that

section 1915(g) does not violate the Fourteenth Amendment right to equal protection, as

incorporated through the Fifth Amendment. See Wilson v. Yaklich, Nos. 96-3023, 96-

4323, slip op. at 13 (6th Cir. June 8, 1998); Carson, 112 F.3d at 821-22.

E.

Generally, federal courts apply the law that exists at the time they render a

decision rather than “the law that existed when the conduct took place[.]” Landgraf v.

USI Film Products, 511 U.S. 244, 264-65 (1994) (internal quotation marks and citation

omitted). Courts may not, however, apply existing statutory law to past conduct if it

would contradict Congress’s express intent or produce a “retroactive effect.” See

Landgraf, 511 U.S. 268, 280; Mitchell, 112 F.3d at 1486.13 Rivera contends that the

district court’s counting as strikes his prison-generated cases dismissed prior to the

13
Nor may courts apply existing statutory law to past conduct if it would violate
the Ex Post Facto, Takings, Bills of Attainder or Due Process Clauses. See Landgraf, 511
U.S. at 266-67. At best, Rivera contends that section 1915(g) violates only one of these
clauses, the Due Process Clause. We addressed and rejected that contention in section II,
part B of this opinion. We note that the Sixth Circuit recently rejected a prisoner’s
contentions that section 1915(g) violates the Ex Post Facto Clause and constitutes a bill of
attainder. See Wilson, slip op. at 15-16.
20
enaction of the PLRA brought about a “retroactive effect” that Congress did not

prescribe.

Initially, we look to see if “Congress has . . . spoken on the issue.” Mitchell, 112

F.3d at 1486. “If Congress has done so, of course, there is no need to resort to judicial

default rules.” Landgraf, 511 U.S. at 280. We agree with the Ninth Circuit that the

language of section 1915(g) -- especially the express reference to “prior occasions” --

“makes clear its application to claims dismissed prior to the current proceedings.”

Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997). To be sure, this conclusion is

entirely in line with the PLRA’s purpose:

To interpret [section 1915(g)] as only applying to actions
commenced after April 26, 1996, the effective date of the
PLRA, would give every prisoner, regardless of the number
of prior frivolous suits, three more opportunities to pursue
frivolous actions–without paying any filing fees. Multiplying
the number of litigious prisoners across the United States by a
factor of three potentially frivolous actions per prisoner
demonstrates how such an interpretation would frustrate,
rather than advance, the congressional goal of reducing
frivolous prisoner litigation in federal court.

Tierney, 128 F.3d at 1311-12.14 Similarly, the Tenth Circuit concluded that a “textual

analysis . . . suggests that Congress intended § 1915(g) to apply to prisoner actions

dismissed prior to its enactment.” Green v. Nottingham, 90 F.3d 415, 419 (10th Cir.

14
We recognize that the above-quoted excerpt is a bit imprecise. Under the
PLRA, prisoners without three strikes can proceed “without paying any filing fee” only if
they have “no assets and no means by which to pay the initial partial filing fee” that
section 1915(b)(1) requires. 28 U.S.C.A. § 1915(b)(4). Nevertheless, Tierney’s
observation of Congress’s clear intent is instructive.
21
1996) (relying on “prior occasions” language).15 But cf. Wilson, slip op. at 10 (“[T]he

statute . . . lacks the kind of unambiguous directive that clearly shows Congress intended

§ 1915(g) to apply to suits dismissed prior to its enactment.”) (internal quotation marks

and citations omitted).

Even if section 1915(g)’s past tense and backward-looking language is not an

“unambiguous directive” on the part of Congress, our application of the Landgraf factors

fosters the same result. 511 U.S. at 263. First, we consider “whether [section 1915(g)]

would impair rights a party possessed when he acted[.]” Landgraf, 511 U.S. at 280. That

is not a difficult question to answer. As we stated earlier, proceeding IFP has always

been a privilege, not a right. See Adepegba, 103 F.3d at 386; accord Parsell, 218 F.2d at

235 (proceeding IFP on appeal “is a privilege and not a right”).16 Prior to the PLRA, it

was within a federal court’s discretion to grant leave to proceed IFP to a prisoner.

Compare 28 U.S.C. § 1915(a) (1994) (court “may” authorize lawsuit or appeal “without

prepayment of fees and costs”) with 28 U.S.C.A. § 1915(b) (West Supp. 1998) (court

15
In Green, the Tenth Circuit held that

[b]ecause the plain language of § 1915(g) strongly suggests
that Congress intended courts to consider prisoner suits
dismissed prior to the statute’s enactment, and applying this
procedural rule in such a manner would not have a retroactive
effect, we conclude that § 1915(g) requires us to consider
prisoner suits dismissed prior to the statute’s enactment.

90 F.3d at 420.
16
In Adepegba, the Fifth Circuit held that section 1915(g) raises no retroactivity
concerns under Landgraf. Adepegba, 103 F.3d at 385-87.
22
“shall” require prisoners with some financial means but without three strikes “to pay the

full amount of a filing fee[,]” at least in installments), 28 U.S.C.A. § 1915(g) (West Supp.

1998) (court “shall” require prepayment of the entire filing fee from frequent filer

prisoners). Indeed, when we have reviewed a district court’s denial of an application to

proceed IFP, our review has been only for abuse of discretion. See generally Parsell, 218

F.2d at 235-36. Thus, prior to the passage of the PLRA, Rivera did not possess “anything

more than an expectation interest” in proceeding IFP. Mitchell, 112 F.3d at 1487.

Second, we must determine whether section 1915(g) increases Rivera’s “liability

for past conduct.” Landgraf, 511 U.S. at 280. That too is an easy question. Litigants

have always been liable for filing fees. See Adepegba, 103 F.3d at 386 (Section 1915(g)

“does not impose new or additional liabilities, but instead requires collection of a fee that

was always due.”); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996) (“All §

1915 has ever done is excuse pre-payment of the docket fees; a litigant remains liable for

them, and for other costs, although poverty may make collection impossible.”); accord

Collier v. Tatum, 722 F.2d 653, 655 (11th Cir. 1983) (“[W]e hold that a district court

may, in its discretion, require a partial filing fee of a prisoner-plaintiff who has some

assets but is unable to pay the full amount of the fee.”). Section 1915(g), like other

provisions of the PLRA, is purely procedural. Tierney, 128 F.3d at 1312 (Section

1915(g) “does not impair any substantive rights of prisoners[.]”); Adepegba, 103 F.3d at

386 (“Although section 1915(g) attaches consequences to past actions, we find that these

consequences are matters of procedure.”); Green, 90 F.3d at 420 (Section 1915(g) “does

23
not change the legal consequences of prisoner actions dismissed before the statute’s

enactment.”); cf. Mitchell, 112 F.3d at 1486 (Section § 1915(e)(2)(B) is “wholly

procedural[.]”).

Finally, we summarily find that section 1915(g) “impose[s] [no] new duties with

respect to transactions already completed.” Landgraf, 511 U.S. at 280. Rivera certainly

does not, and never has had, a “duty” to file a civil lawsuit, with or without a filing fee.

We recognize that Congress’s “responsivity to political pressures poses a risk that

it may be tempted to use retroactive legislation as a means of retribution against

unpopular groups or individuals.” Landgraf, 511 U.S. at 266. Policy considerations,

however, “do not figure in the Landgraf analysis.” Wright v. Morris, 111 F.3d 414, 421

(6th Cir.), cert. denied, 118 S. Ct. 263 (1997). Accordingly, we join other circuits in

concluding that under section 1915(g), federal courts may properly count as strikes

lawsuits or appeals dismissed as frivolous, malicious or failing to state a claim upon

which relief may be granted prior to April 26, 1996. See Wilson, slip op. at 11 (“[W]e . .

. hold that dismissals of previous actions entered prior to the effective date of the PLRA

may be counted toward the ‘three strikes’ referred to in 28 U.S.C. § 1915(g).”); Garcia v.

Silbert, No. 96-2154, slip op. at 5 (10th Cir. April 22, 1998) (“[C]ourts must consider

cases dismissed prior to [April 26, 1996] in determining whether the criteria for dismissal

under § 1915(g) have been satisfied.”); Keener v. Pennsylvania Bd. of Probation &

Parole, 128 F.3d 143, 144 (3d Cir. 1997) (“We . . . join those [other] circuits in holding

that dismissals for frivolousness prior to the passage of the PLRA are included among the

24
three that establish the threshold issue for requiring a prisoner to pay the full docket

fees[.]”).

F.

Under section 1915(g), prisoners obtain a “strike” against them for purposes of

future IFP eligibility when their “action or appeal in a court of the United States [is]

dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon

which relief may be granted[.]” 28 U.S.C.A. § 1915(g). Recognizing that it is the

prisoner’s burden to produce sufficient record information about “prior occasions” to the

appellate court, Rivera advances a copy of dismissal orders in two prior district court

lawsuits, Rivera v. Arocho, 96-275-CIV-J-99(S), and Rivera v. Parker, 96-325-CIV-J-10,

contending that they were not strikes.17

We, however, find no error on the part of the district court in counting these two

cases as strikes. First, the dismissal in Arocho was the equivalent of a dismissal for

failure to state a claim upon which relief can be granted under Federal Rule of Civil

Procedure 12(b)(6), of which section 1915(g) tracks the language. Cf. Mitchell, 112 F.3d

at 1490 (“[W]e will apply Rule 12(b)(6) standards in reviewing dismissals under section

1915(e)(2)(B)(ii)[.]”). Compare Fed. R. Civ. P. 12(b)(6) (“failure to state a claim upon

which relief can be granted”) with 28 U.S.C.A. § 1915(g) (“fails to state a claim upon

which relief may be granted”), 28 U.S.C.A. § 1915(e)(2)(B)(ii) (“fails to state a claim

17
Rivera concedes the existence of one “strike” against him, Rivera v. Tornin, 93-
170-CIV-ORL-22.
25
upon which relief may be granted”). According to the district court’s order in Arocho,

Rivera’s complaint stated “no cause of action for money damages under § 1983 unless

and until the prison disciplinary proceeding resulting in a loss of gain time is challenged

and reversed by an internal administrative ruling, declared invalid by a state court, or

called into question by a federal court’s issuance of a writ of habeas corpus.” Appellant’s

Brief, App. C, Dist. Ct. Order at 6. Since Rivera’s complaint lacked any allegations of

exhaustion of remedies, the district court dismissed Rivera’s claim without prejudice.

A claim that fails to allege the requisite exhaustion of remedies is tantamount to

one that fails to state a claim upon which relief may be granted. See Wright, 111 F.3d at

417 (stating that prior to April 26, 1996, courts could require exhaustion of available

remedies in the interest of justice; citing pre- and post-PLRA versions of 42 U.S.C. §

1997e(a) and Patsy v. Board of Regents, 457 U.S. 496, 502-07, 508-12 (1982)); see, e.g.,

Porter v. Fox, 99 F.3d 271, 274 (8th Cir. 1996) (“Porter failed to state a claim upon which

relief could be granted. Porter did not allege he exhausted his administrative remedies . . .

.”); Sharps v. United States Forest Service, 28 F.3d 851, 853 (8th Cir. 1994) (“Because

Sharps alleged claims . . . for which he failed to exhaust administrative remedies, we hold

that the district court did not err in dismissing Sharps’s amended complaint [under Rule

12(b)(6)].”); Rodriguez v. Berbary, 992 F. Supp. 592, 593 (W.D.N.Y. 1998) (collecting

cases where “courts have required a plaintiff to exhaust his administrative remedies

before bringing a § 1983 action with respect to prison conditions”); Dutton v. Board of

County Comm’rs of Johnson County, Kan., No. 93-2184-G (D. Kan. Aug. 18, 1993).

26
Indeed, Rivera himself conceded at oral argument that a wide variety of claims -- even

those that have ostensible merit -- fall within the Rule 12(b)(6) standard. See Mitchell,

112 F.3d at 1492 (discussing the difference between frivolousness and failure to state a

claim, citing Neitzke v. Williams, 490 U.S. 319, 329-30 (1989)) (Lay, J., concurring).

Presuming, as we must, the legal correctness of the district court’s dismissal in Arocho,

we find that it constitutes a “prior occasion” under section 1915(g). Cf. Patton v.

Jefferson Correctional Center, 136 F.3d 458, 464 (5th Cir. 1998) (Excusing a prisoner’s

frivolous § 1983 actions “from the reach of the PLRA’s ‘three strikes’ proviso simply

because the cases included unexhausted habeas claims” would allow “litigious prisoners

[to] immunize frivolous lawsuits from the ‘three strikes’ barrier by the simple expedient

of pleading unexhausted habeas claims as components of § 1983 suits.”).

The district court’s dismissal without prejudice in Parker is equally, if not more,

strike-worthy. In that case, the court found that Rivera had lied under penalty of perjury

about the existence of a prior lawsuit, Arocho. As a sanction, the court dismissed the

action without prejudice, finding that Rivera “abuse[d] the judicial process[.]”

Appellant’s Brief, App. A, Dist. Ct. Order at 2. Although the district court may not have

uttered the words “frivolous” or “malicious,” dismissal for abuse of the judicial process is

precisely the type of strike that Congress envisioned when drafting section 1915(g). E.g.,

Roller, 107 F.3d at 234 (Congress sought to curtail “abuse of the federal judicial

27
system[.]”). Accordingly, we hold that the district court did not err in counting Arocho

and Parker as strikes against Rivera.18

III. CONCLUSION

For the foregoing reasons, we hold that the “three strikes” IFP provision of 28

U.S.C.A. § 1915(g) does not violate the First Amendment right to access the courts; the

separation of judicial and legislative powers; the Fifth Amendment right to due process of

law; or the Fourteenth Amendment right to equal protection, as incorporated through the

Fifth Amendment. We further hold that federal courts in this circuit may properly count

as strikes lawsuits or appeals dismissed as frivolous, malicious or failing to state a claim

upon which relief may be granted prior to April 26, 1996. Finally, the district court did

not err in counting as strikes two of Rivera’s prior lawsuits, Rivera v. Arocho, 96-275-

CIV-J-99(S), and Rivera v. Parker, 96-325-CIV-J-10.

18
Rivera may very well have more than three strikes, in light of his reference to
Rivera v. Singletary, 96-1307-CIV-J-99C, and Rivera v. Perrin, 96-650-CIV-J-20B, in
objecting to the Northern District magistrate judge’s report and recommendation to
transfer the instant case to the Middle District.

Given our affirmance of the district court’s three-strike count, Rivera received a
windfall from this court when the clerk allowed him to pay our filing fee in installments.
Normally, section 1915(g) would dictate that we order Rivera to submit forthwith the
balance of the filing fee. Cf. Garcia v. Silbert, No. 96-2154, slip op. at 4 n.1 (10th Cir.
April 22, 1998) (“Because Garcia’s complaint does not allege imminent harm and he has
had at least three prior actions dismissed as frivolous, he should not have been permitted
to appear before this court without full prepayment of all required fees. . . . [W]e direct
the clerk accordingly to enter an order requiring Mr. Garcia to remit the entire balance
due this court.”). Because Rivera’s appeal brought important constitutional issues of first
impression before us, however, we will not enter such an order. Rivera may continue to
pay in the installments that our clerk ordered.
28
AFFIRMED.

29