Billy G. ASEMANI, Appellant v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, USCIS, a Branch of the U.S. Department of Homeland Security, Appellee.
No. 13-5362.
United States Court of Appeals, District of Columbia Circuit.
Aug. 7, 2015.
797 F.3d 1069
III.
For the foregoing reasons, we hold that the District Court erred in concluding that the Plaintiffs had failed to plead adequate facts to establish standing or the existence of a horizontal conspiracy to restrain trade. We therefore vacate the District Court‘s December 19 order denying the Plaintiffs’ motion to amend the judgment, and we remand for further proceedings consistent with this opinion.4
So ordered.
Wynne P. Kelly, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney at the time the brief
Before: ROGERS, TATEL and SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN, Circuit Judge:
Billy G. Asemani is an inmate in the Western Correctional Institution in Cumberland, Maryland. After United States Citizenship and Immigration Services (USCIS) denied Asemani‘s application for naturalization, he filed a mandamus petition seeking to compel the agency to grant him a hearing to review the denial. Asemani initially obtained leave from the district court to pursue his petition in forma pauperis (IFP). But the court subsequently concluded that Asemani could not proceed IFP because of the so-called “three-strikes rule” set out in the Prison Litigation Reform Act (PLRA),
I.
A.
Congress enacted the PLRA in response to concern that prisoners were “flooding the courts with meritless claims.” Chandler v. D.C. Dep‘t of Corr., 145 F.3d 1355, 1356 (D.C. Cir. 1998). The PLRA substantially altered the availability of IFP status with respect to prisoner suits. See Tucker v. Branker, 142 F.3d 1294, 1296-97 (D.C. Cir. 1998).
Under the PLRA, all prisoner-litigants must pay filing fees in full. A prisoner who qualifies for IFP status, however, need not pay the full filing fee at the time he brings suit.
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
The three-strikes rule thus requires a prisoner who otherwise qualifies for IFP status to pay the full filing fee at the time of filing suit rather than in installments. See generally Coleman v. Tollefson, — U.S. —, 135 S.Ct. 1759, 1761-62, 191 L.Ed.2d 803 (2015).
As the text of the provision indicates,
Asemani is currently serving a thirty-year sentence in the Western Correctional Institution in Cumberland, Maryland. While incarcerated, at least three of his suits have been dismissed on grounds qualifying as “strikes” for purposes of the three-strikes rule. On December 21, 2011, Asemani filed a petition for a writ of mandamus in the district court. His petition seeks an order compelling USCIS to act upon his request for a hearing concerning the denial of his application for naturalization. He filed a motion to proceed IFP the same day. On February 14, 2012, the district court granted that motion.
On August 10, 2012, the government, citing the three-strikes rule, moved to vacate the order granting Asemani IFP status. In response, Asemani conceded that he has three strikes but argued that he nonetheless qualifies for IFP status under the imminent danger exception. He explained that he had suffered “two back-to-back acts of assaults” by other inmates while in prison. App. 40. As a result of those assaults, Asemani had been placed in protective custody, which “requires his placement in a segregated housing unit.” Id. At the time of Asemani‘s response to the government‘s motion to vacate IFP status, he had been in protective custody for “nearly a year,” id., and anticipated remaining in protective custody for the “indefinite” future, id. at 41. Even while in protective custody, he claimed that he faces a “constant threat of violence because of the maximum security nature” of his fellow inmates. Id.
The district court granted the government‘s motion and revoked Asemani‘s IFP status, ordering him to pay the full $350 filing fee within thirty days or face dismissal of his case. Asemani failed to pay the filing fee and his case was dismissed. Asemani now appeals the district court‘s order vacating IFP status and its order dismissing his case. Asemani also seeks leave to proceed IFP on appeal.
We appointed counsel to argue as amicus curiae in favor of his position. In lieu of filing his own briefing in this appeal, Asemani asks us to “construe [amicus‘s] filings as being his position.” Pro Se Appellant‘s Mot. For Waiver of His Obligation to File “Appellant Br.” 3. Accordingly, we attribute amicus‘s arguments to Asemani.
II.
As has been our practice in cases arising in the same posture, we first consider Asemani‘s request to proceed IFP on appeal. See Smith v. District of Columbia, 182 F.3d 25, 27 (D.C. Cir. 1999). The PLRA‘s three-strikes rule applies with equal force to “a prisoner bring[ing] a[n] ... appeal,” so Asemani cannot proceed IFP unless he demonstrates that he is “under imminent danger of serious physical injury.”
As to the government‘s timeliness argument, the parties both assume that the timeliness of Asemani‘s allegations before the district court necessarily determines
A.
Asemani‘s allegations of imminent danger first appeared in his pro se opposition to the government‘s motion to revoke his IFP status. The district court concluded that those allegations could not be considered. Asemani, the court held, was required to include those allegations in his complaint or in his motion for IFP status. The government, agreeing with the district court, argues that we therefore should decline to consider Asemani‘s allegations of imminent danger. We are unconvinced.
It is well established that a prisoner seeking to proceed IFP need not affirmatively plead compliance with
Our precedent does not suggest otherwise. To be sure, we have held that
We have never held, though, that a prisoner‘s allegations about the conditions he faces at the time “he ‘bring[s]’ his action,” id., must be made in any particular type of filing. While certain of our decisions have described a prisoner‘s allegations by reference to the specific document in which he happened to have made those allegations, that language was merely descriptive, not prescriptive. In Pinson v. Samuels, for example, we held that the imminent danger inquiry turns on “the alleged danger at the time [the prisoner] filed his complaint,”
B.
We must determine whether the facts alleged by Asemani demonstrate that he faced “imminent danger of serious physical injury.”
According to those allegations, at the time Asemani filed this action, he was “housed under protective custody status.” App. 40. Protective custody status “requires his placement in a segregated housing unit.” Id. Asemani‘s placement in protective custody, he explains, came about because of “two back-to-back acts of assaults on him by other inmates.” Id. Those assaults apparently occurred because “Asemani has many inmate enemies” in prison. Id. at 41. Asemani further claims that, even under protective custody, he is “faced with a constant threat of violence because of the maximum security nature of the other inmates[,] ... many of whom are serving life sentences.” Id.
Those allegations, we conclude, are materially indistinguishable from allegations this court has previously deemed insufficient to establish “imminent danger.” In Mitchell v. Federal Bureau of Prisons, the prisoner alleged that, “even though BOP knew he had testified for the government, it illegally transferred him” to “a prison known for murders and assaults on ... anyone who has been known as a snitch, and where he was nearly murdered in October 2003.” 587 F.3d at 420-21 (internal quotation marks omitted). We found Mitchell‘s allegations inadequate to demonstrate “that the danger he face[d][wa]s imminent.” Id. at 421. Even though Mitchell alleged that he had suffered a violent assault in the past, that assault took place seventeen months before he filed his action. That the prison was generally dangerous and was “known for murder and assaults” on known “snitches” like Mitchell, we determined, was also insufficient to demonstrate that he faced an on-
We reached the same conclusion in Pinson. Pinson claimed that, “as a homosexual and former gang member, his designation to [a special unit of the prison] alongside members of rival gangs placed him in imminent danger of death or serious bodily injury.” Pinson, 761 F.3d at 5. We held that Pinson‘s allegations of danger, like those in Mitchell, failed to demonstrate that the danger he faced was imminent. Id. We therefore denied Pinson‘s motion for IFP status on appeal. Id. at 5-6.
The facts alleged by Asemani are materially indistinguishable from those presented in Mitchell and Pinson. While Asemani alleges that he suffered two beatings in the past, he also alleges that, as a result of those beatings, he was moved into protective custody. The beatings, which took place while Asemani was in the general prison population, do not indicate that Asemani continued to face imminent danger at the time he filed his complaint—i.e., after he had been moved into protective custody. And he makes no allegation that he has suffered any beatings or received specific threats while in protective custody. Rather, he alleges a generic “threat of violence” due to the “maximum security nature of other inmates” housed in the prison population. App. 41.
Asemani also alleges that he might face added danger—perhaps even in protective custody—because he has “inmate enemies.” Id. But that allegation is no stronger than the ones we deemed insufficient in Pinson and Mitchell: Mitchell and Pinson effectively alleged that they had “enemies” in prison due to certain characteristics they possessed. Just as in Pinson and Mitchell, Asemani‘s allegations with respect to the danger he faced in protective custody are insufficient for us to conclude he faces an imminent danger.
Asemani‘s allegations, moreover, fall considerably short of the circumstances courts have deemed adequate to demonstrate “imminent danger.” The Ninth Circuit, for example, recently held that an inmate established imminent danger when she alleged that she had been “receiving constant, daily threats of irreparable harm, injury and death” due to rumors allegedly started by prison officials. Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). Similarly, the Second Circuit observed that “[a]n allegation of a recent brutal beating, combined with three separate threatening incidents, some of which involved officers who purportedly participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the imminent danger exception.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Here, by contrast, Asemani‘s principal allegation is that a background threat inheres in his placement in a certain population. Unlike the prisoners in Williams and Chavis, he does not identify a particular recent threat (or pattern of threats) substantiating a danger that is sufficiently “imminent” under
III.
Because we conclude that the three-strikes rule bars Asemani from proceeding IFP on appeal, we must address his contention that the rule is unconstitutional as applied to his case. The Supreme Court has held that, in certain situations, a litigant is constitutionally entitled to a waiver of filing fees. The primary circumstance in which the Constitution requires waiver of court fees is when an indigent person challenges his criminal conviction. See Griffin v. Illinois, 351 U.S. 12, 17-18, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Outside the criminal context, the Supreme
Even assuming arguendo that the PLRA‘s three-strikes rule might raise constitutional concerns when a prisoner seeks access to the courts to vindicate certain fundamental rights, see Thomas v. Holder, 750 F.3d 899, 909 (D.C. Cir. 2014) (Tatel, J., concurring), we conclude that this is not such a case. The Supreme Court has cautioned repeatedly that “a constitutional requirement to waive court fees in civil cases is the exception, not the general rule.” M.L.B., 519 U.S. at 114 (citing United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973)). The Court has recognized such a requirement only in a handful of cases involving “state controls or intrusions on family relationships.” Id. at 116, 117 S.Ct. 555. Those cases differ from “the mine run of [civil] cases,” according to the Court, because “[c]hoices about marriage, family life, and the upbringing of children are among associational rights [the] Court has ranked as ‘of basic importance to our society.‘” Id. (quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)).
Apart from that context, however, the Court has consistently rejected claims that other important interests merit the same constitutional treatment. For example, the Court has held that securing bankruptcy discharge in order to obtain a “desired new start in life” is an “important” interest, but does “not rise to the same constitutional level” as averting state intrusions into family life. Kras, 409 U.S. at 444-45. The Court has likewise rejected a claim of constitutional entitlement to a waiver of filing fees in connection with a challenge to the termination of welfare benefits. Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973) (per curiam).
Asemani argues that his action asserting “a claim of right to U.S. citizenship and a concomitant right against removal to Iran,” Amicus Br. 40, should be added to the “narrow category of civil cases” in which access to the courts must be guaranteed regardless of a party‘s ability to pay, M.L.B., 519 U.S. at 113. But Asemani points to no case in which a court has recognized an alien‘s claim of right to the grant of naturalized citizenship to be on par with the claimed right to avoid “state controls or intrusions on family relationships” discussed by the Supreme Court in M.L.B. Id. at 116, 117 S.Ct. 555. Instead, Asemani relies on Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality op.). In that case, the Court suggested that a native-born United States citizen has a “fundamental right” to retain his citizenship as long as he does not “voluntarily renounce or abandon” it. Id. at 93, 78 S.Ct. 590. But Trop and other such cases speak to the government‘s ability to revoke a citizen‘s citizenship, however acquired. See, e.g., Fedorenko v. United States, 449 U.S. 490, 505-06, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981); Afroyim v. Rusk, 387 U.S. 253, 267-68, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). There is no argument here that Asemani‘s citizenship or immigration status has been revoked or altered by USCIS. In fact, the
We are aware of no case suggesting that an alien has the sort of fundamental right associated with obtaining naturalized citizenship status that would qualify for a constitutional entitlement to a fee waiver under the Supreme Court‘s decision in M.L.B. To the contrary, the naturalization process lacks many of the indicators the Court has found important in delimiting the “narrow category of civil cases in which the State must provide access to its judicial processes without regard to a party‘s ability to pay court fees.” M.L.B., 519 U.S. at 113, 117 S.Ct. 555. Unlike the interests at issue in M.L.B. and Boddie v. Connecticut, Asemani‘s interest in obtaining citizenship through naturalization does not involve state-imposed “controls or intrusions on family relationships.” M.L.B., 519 U.S. at 116, 117 S.Ct. 555. Nor is the naturalization process “quasi criminal in nature,” unlike the “State‘s devastatingly adverse action” considered in M.L.B., in which the plaintiff, “[l]ike a defendant resisting criminal conviction,” sought to withstand “the State‘s authority to sever permanently a parent-child bond.” Id. at 116, 124-25, 117 S.Ct. 555. Instead, citizenship granted via naturalization—like bankruptcy discharge, Kras, 409 U.S. 434, 93 S.Ct. 631, or welfare benefits, Ortwein, 410 U.S. 656, 93 S.Ct. 1172—involves a discretionary benefit conferred by statute. The Court has made clear that Congress enjoys “broad power over naturalization and immigration,” Demore v. Kim, 538 U.S. 510, 521, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)), and that “[n]o alien has the slightest right to naturalization unless all statutory requirements are complied with,” United States v. Ginsberg, 243 U.S. 472, 475, 37 S.Ct. 422, 61 L.Ed. 853 (1917).
The specific claims made in this case thus fall “with[in] the generality of civil cases, in which indigent persons have no constitutional right to proceed in forma pauperis.” M.L.B., 519 U.S. at 119, 117 S.Ct. 555. In such a situation, “the applicable equal protection standard ‘is that of rational justification.‘” Id. at 115-16, 117 S.Ct. 555 (quoting Ortwein, 410 U.S. at 660, 93 S.Ct. 1172). The three-strikes rule readily meets that standard in these particular circumstances. “The State‘s need for revenue to offset costs, in the mine run of cases, satisfies the rationality requirement.” Id. at 123, 117 S.Ct. 555. The three-strikes rule also furthers Congress‘s expressed interest in stemming a perceived “flood[ ]” of “meritless claims.” Chandler, 145 F.3d at 1356. We therefore conclude that the three-strikes rule is constitutional as applied to this action.
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For the foregoing reasons, we deny Asemani‘s motion to proceed IFP and do not reach the merits of his appeal. See Pinson, 761 F.3d at 5-6; Smith, 182 F.3d at 30. Under this circuit‘s precedent, Asemani now has a choice. If he wishes to proceed with this appeal, he has thirty days from the date of this opinion to pay the filing fee up front. See Mitchell, 587 F.3d at 422. But Asemani may also elect not to proceed with his appeal, in which case his appeal will be dismissed and no fees will be collected. See Smith, 182 F.3d at 30; Wooten v. D.C. Metro. Police Dep‘t, 129 F.3d 206, 208 (D.C. Cir. 1997).
We note that Asemani‘s arguments in favor of proceeding IFP on appeal directly mirror his arguments challenging the district court‘s decision to revoke IFP status. As we have already rejected those arguments in this opinion, Asemani, were he to
So ordered.