Asemani v. U.S. Citizenship & Immigration Servs.

• Decision Date: 07 August 2015
• Docket Number: No. 13–5362.,13–5362.
• Citation: 797 F.3d 1069
• Parties: Billy G. ASEMANI, Appellant v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, USCIS, a Branch of the U.S. Department of Homeland Security, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

797 F.3d 1069

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.

Kwaku A. Akowuah, appointed by the court, argued the cause for appellant. With him on the briefs were Jeffrey T. Green and Tobias S. Loss–Eaton, appointed by the court.

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 was filed, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: ROGERS, TATEL and SRINIVASAN, Circuit Judges.

Opinion

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), 28 U.S.C. § 1915(g), which bars certain prisoners from proceeding IFP if three or more prior suits have been dismissed on specified grounds. Asemani now brings this appeal, arguing that he qualifies for IFP status under the imminent danger exception to the three-strikes rule, or, alternatively, that the three-strikes rule is unconstitutional as applied to his case. We reject his arguments and therefore deny his request to proceed IFP on appeal.

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. 28 U.S.C. § 1915(a)(1). Rather, he can pay the filing fee in installments over time. Id. § 1915(b). But the PLRA bars certain prisoners from proceeding IFP under the three-strikes rule contained in § 1915(g), which reads:

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, § 1915(g) also contains an exception to the exception: even if a prisoner has three strikes, he may proceed IFP—i.e., he may pay the filing fee in installments—if he is “under imminent danger of serious physical injury.” That exception “eases any constitutional tension that might result from denying access to the courts to prisoners facing life-threatening conditions.” Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415, 420 (D.C.Cir.2009).

B.

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.” 28 U.S.C. § 1915(g). The government argues that Asemani should not be allowed to proceed IFP on appeal “for the same reasons the district court revoked the privilege below.” Appellee Br. 45. The court concluded that, for two independent reasons, Asemani failed to establish eligibility for the imminent danger exception. First, the court held that Asemani's allegations of imminent danger were untimely and could not be considered. Second, the court determined that, even if it could consider Asemani's allegations, he fails to qualify for the imminent danger exception because the danger he alleges is unrelated to his underlying mandamus claim.

As to the government's timeliness argument, the parties both assume that the timeliness of Asemani's allegations before the district court necessarily determines whether those allegations are timely for purposes of IFP status on appeal. Even assuming that is true, we conclude that Asemani's allegations of imminent danger were timely before the district court. As to the district court's second ground for denying IFP status, this court has not resolved whether § 1915(g) requires that there be some nexus between the imminent danger alleged and the prisoner's underlying claim. See Mitchell, 587 F.3d at 421. We do not resolve that issue in this case. Instead, we conclude that Asemani is barred from proceeding IFP on appeal because his allegations fail to make out the requisite imminent danger.

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 § 1915(g)'s three-strikes rule. The PLRA sets forth numerous pleading requirements for prisoners seeking IFP status, see, e.g., 28 U.S.C. § 1915(a)(1)-(2), and compliance with § 1915(g) is not among them. “[H]ad Congress intended to require prisoners to affirmatively show that they were not subject to the three-strikes provision, it would have included that requirement in the list of requirements prisoners must address in order to obtain IFP status.” Thompson v. DEA, 492 F.3d 428, 434 (D.C.Cir.2007) (internal quotation marks and ellipses omitted). If a prisoner is not required preemptively to negate the three-strikes rule in a motion for IFP status, it makes little sense to think he nevertheless would need preemptively to present facts establishing an exception to that rule.

Our precedent does not suggest otherwise. To be sure, we have held that § 1915(g) places certain temporal constraints on the facts that may be considered in evaluating whether a prisoner faces imminent danger. The text of the PLRA dictates that a prisoner with three strikes cannot seek IFP status to “bring a civil action ... unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g) (emphasis added). Section 1915(g)'s use of the present tense and its concern with the initial step of bringing the action indicates that the exception applies only if the danger existed at the time the prisoner filed his complaint. Pinson v. Samuels, 761 F.3d 1, 5 (D.C.Cir.2014) ; see Andrews...