United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued May 15, 2020 Decided July 7, 2020 No. 18-5331 JEREMY PINSON, APPELLANT v. UNITED STATES DEPARTMENT OF JUSTICE, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-00486) Anthony F. Shelley, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs was Dawn E. Murphy-Johnson, appointed by the court. Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney. 2 _____ No. 18-5375 MICHAEL S. GORBEY, APPELLANT v. UNITED STATES OF AMERICA, APPELLEE Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-02672) Anthony F. Shelley, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs was Dawn E. Murphy-Johnson, appointed by the court. Michael S. Gorbey, pro se, filed the briefs for appellant. Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney. Before: TATEL and RAO, Circuit Judges, and SENTELLE, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: Under the Prison Litigation Reform Act’s (PLRA) three-strikes rule, indigent prisoners who have 3 had three or more actions dismissed as “frivolous, malicious, or [for] fail[ure] to state a claim” may not “bring a civil action or appeal a judgment” in forma pauperis (IFP). 28 U.S.C. § 1915(g). This rule, however, has an important exception: three-strike prisoners may proceed IFP if they are “under imminent danger of serious physical injury.” Id. In these two related cases, Michael Gorbey and Jeremy Pinson, both incarcerated three-strikers, seek to bring their appeals IFP on the ground that they face imminent danger. In the alternative, Pinson contends that she should be permitted to proceed IFP because, as applied to her appeal, the three-strikes rule is unconstitutional. The government opposes the prisoners’ requests, arguing that neither Gorbey nor Pinson faced imminent danger at the relevant time and that, even if they did, their underlying claims are unrelated to the dangers they purportedly faced. The government also insists that the three- strikes rule poses no constitutional difficulties. We reject the prisoners’ requests. As explained below, to proceed under the exception, three-strike prisoners must show an imminent danger at the time of their appeal and a nexus between that danger and their underlying claims. Gorbey has failed to demonstrate a nexus between the danger he faced and the claims he brought, and Pinson has failed to show that she faced imminent danger at the time she noticed her appeal. As for Pinson’s alternative argument, even assuming that some prisoners can make out viable as-applied constitutional challenges to the three-strikes rule, Pinson has failed to do so. I. Generally, all litigants, including incarcerated litigants, must pay prescribed filing fees to pursue civil actions in ...
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