William C. Lewis v. Michael Sullivan, Secretary, Wisconsin Departmentof Corrections

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 01-2251 & 01-2252
William C. Lewis,
Plaintiff-Appellee,
v.
Michael Sullivan, Secretary, Wisconsin
Departmentof Corrections, and his
successor Jon E. Litscher,
Defendants-Appellants,
and
United States of America,
Intervening Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 00-C-705-C--Barbara B. Crabb, Chief Judge.
Argued November 29, 2001--Decided February 1, 2002
Before Coffey, Easterbrook, and Ripple,
Circuit Judges.
Easterbrook, Circuit Judge. One of the
changes made in 1996 by the Prison
Litigation Reform Act requires prisoners
to prepay the filing and docketing fees
of most future suits, if they have a
history of frivolous litigation. The
precise language of what has come to be
called the three-strikes rule is this:
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.

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28 U.S.C. sec. 1915(g). The reference to
"this section" is to all of sec. 1915,
which permits litigation in forma
pauperiswithout prepayment of fees and
costs. As a result, a prisoner who has
"struck out" must pay all required fees
in future cases, "unless . . . under
imminent danger of serious physical
injury." This suit was filed by a
prisoner who has a history of frivolous
litigation and thus comes within
sec. 1915(g), and who does not claim to be
"under imminent danger of serious
physical injury." Nonetheless, the
district court has excused prepayment of
the required $150 fee. The judge
concluded that sec. 1915(g) would be
unconstitutional unless read to allow
judges to dispense with prepayment
whenever, in their discretion, they
viewed the prisoners’ claims to be
substantial. 135 F. Supp. 2d 954 (W.D.
Wis. 2001). At the request of the United
States, which intervened to defend the
constitutionality of sec. 1915(g) as
written, the district judge certified
this ruling for interlocutory appeal
under 28 U.S.C. sec. 1292(b).
Seven courts of appeals have considered
constitutional objections to sec. 1915(g).
These arguments have been based on the
due process right of access to the
courts, the equal protection clause, the
ex post facto clause, the first amendment
right to petition for redress of
grievances, and several others. None has
succeeded. All seven decisions have held
that sec. 1915(g) is constitutional. See
Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d
Cir. 2001) (en banc); Carson v. Johnson,
112 F.3d 818 (5th Cir. 1997); Wilson v.
Yaklich, 148 F.3d 596 (6th Cir. 1998);
Higgins v. Carpenter, 258 F.3d 797 (8th
Cir. 2001); Rodriguez v. Cook, 169 F.3d
1176 (9th Cir. 1999); White v. Colorado,
157 F.3d 1226 (10th Cir. 1998); Rivera v.
Allin, 144 F.3d 719 (11th Cir. 1998).
Lewis, all of whose theories have been
considered in at least one of these
opinions, asks us to disagree with all of
them and to deem sec. 1915(g) not
"narrowly tailored." (According to Lewis,
Congress should have written a law
applicable to frivolous suits by
prisoners and non-prisoners alike, and
should have carved out of its scope all
substantial suits.) We find these
decisions to be sound, however, and
accordingly reverse the judgment of the

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district court. Lewis’s suit must be
dismissed for failure to pay the filing
fee.
Our reason is simple: there is no
constitutional entitlement to subsidy.
The right to publish a newspaper does not
imply a right to governmental funding, or
even to a library where people can read
the papers for free. A woman’s right to
choose whether to have an abortion does
not imply a right to have the government
cover the medical costs. See Maher v.
Roe, 432 U.S. 464 (1977). A right to
education does not imply a right to free
transportation to school. See Kadrmas v.
Dickinson Public Schools, 487 U.S. 450
(1988). A right to petition for redress
of grievances does not imply a right to
free writing paper and stamps. Federal
courts are subsidized dispute-resolvers;
filing fees defray only a small portion
of the costs. A requirement that
plaintiffs cover some of these costs
cannot be called unconstitutional. The
Supreme Court has never held that access
to the courts must be free; it has
concluded, rather, that reasonably
adequate opportunities for access
suffice. Lewis v. Casey, 518 U.S. 343
(1996). The First Congress--almost all of
whose members attended either the
Constitutional Convention in Philadelphia
or the state ratifying conventions that
put the Constitution into force, and
which proposed the Bill of Rights to the
states--provided for filing fees by all
plaintiffs. See the Process Act of 1789,
1 Stat. 93 (setting fees in federal
litigation at the same level charged by
comparable state courts) (replaced by 1
Stat. 275 (1792) setting federal fees
directly). Not until 1892 was provision
made for any federal litigant to proceed
in forma pauperis. This speaks volumes
about the constitutionality of filing
fees; otherwise the federal courts
operated unconstitutionally for their
first century.
Filing fees for civil suits have been
challenged on constitutional grounds
before, without success. United States v.
Kras, 409 U.S. 434 (1973), rejects a
constitutional objection to the filing
fee in bankruptcy litigation. Although
Congress must act rationally when
deciding which litigants must contribute
toward the costs of the judicial system,
we have already held, see Zehner v.

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Trigg, 133 F.3d 459 (7th Cir. 1997), that
it is within the legislative power to
place special limitations on prisoners’
litigation. Prisoners have ample time on
their hands and have demonstrated a
proclivity for frivolous suits to harass
their accusers, the guards, and others
who caused or manage their captivity.
Section 1915(g) singles out only a subset
of prisoners--those who have established,
by their own conduct, that they are among
the abusers of the judicial system.
Requiring persons who have abused the
forma pauperis privilege in the past to
pay in the future is a sensible and
modest step. See, e.g., In re Sindram,
498 U.S. 177 (1991) (requiring abusers to
prepay in future cases); In re
Skupniewitz, 73 F.3d 702 (7th Cir. 1996)
(sustaining against constitutional attack
a bar on civil litigation by abusers who
have failed to pay sanctions). Section
1915(g) would come in for trouble if,
like the statute in Lindsey v. Normet,
405 U.S. 56 (1972), it required one class
of litigants to pay more than the full
cost of litigation (in Lindsey the
statute required an appellant to post a
bond for double the judgment and costs).
But since even full payment of the $150
filing fee leaves prisoners the
recipients of a net subsidy, they have no
complaint. Anyway, everyone allowed to
proceed in forma pauperis owes the fees
and must pay when able; the line drawn by
sec. 1915(g) concerns only the timing of
payment. Section 1915(g) does not have a
substantive effect. That’s why we held it
applicable to cases in which the
"strikes" predate the plra. See Abdul-
Wadood v. Nathan, 91 F.3d 1023 (7th Cir.
1996).
Lewis tries to sidestep these principles
by contending that prisoners who file
suit about prison conditions should be
treated like criminal defendants--who if
poor not only need not pay fees for
transcripts, see Griffin v. Illinois, 351
U.S. 12 (1956), but also are entitled to
counsel at public expense, see Gideon v.
Wainwright, 372 U.S. 335 (1963). The
analogy doesn’t work very well, for Lewis
acknowledges that he is not entitled to a
free lawyer. Being a civil plaintiff (or
even a civil defendant) and a criminal
defendant are fundamentally different.
See United States v. 7108 West Grand
Avenue, 15 F.3d 632 (7th Cir. 1994) (no
right to counsel in forfeiture

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proceedings); Stroe v. INS, 256 F.3d 498
(7th Cir. 2001) (no right to counsel at
public expense in deportation
proceedings, or to competent privately
retained counsel). The few proceedings in
which civil litigants have been held
entitled to a subsidy (via free counsel
or waiver of fees) arise from
prosecution-like proceedings, in which
the public proposes to take away a
person’s children or impose other loss so
great that it amounts to deprivation of a
fundamental right. See M.L.B. v. S.L.J.,
519 U.S. 102 (1996); Boddie v.
Connecticut, 401 U.S. 371 (1971). Lewis
has not been threatened with such a loss;
he is the plaintiff, after all. He wants
the prison system to provide him with
counseling for post-traumatic stress
disorder, but psychiatric care has never
been seen as a fundamental right. Cf.
Washington v. Glucksberg, 521 U.S. 702
(1997) (defining fundamental rights).
Even persons who are suicidally depressed
are entitled, at most, to precautions
that will stop them from carrying
through; they do not have a fundamental
right to psychiatric care at public
expense.
It is not hard to imagine situations
where fundamental rights would be at
stake. A gravely ill prisoner, or one in
great pain, who complained that the staff
was gratuitously withholding medical care
would have a claim based on the
fundamental right protected by the eighth
amendment. See Estelle v. Gamble, 429
U.S. 97 (1976). Likewise a prisoner who
contended that the guards were
deliberately indifferent to violence
perpetrated by fellow prisoners--or,
worse, were themselves the source of
violence against him. See Farmer v.
Brennan, 511 U.S. 825 (1994). Prisons
curtail rights of self-help (and for that
matter means of earning income) and have
on that account some affirmative duties
of protection. See DeShaney v. Winnebago
County Department of Social Services, 489
U.S. 189 (1989). This is why the right of
access to the courts entails some
opportunity to do legal research in a
prison library (or something equally
good); the prison won’t let its charges
out to use other libraries, so it must
make substitute provision, though not
necessarily to the prisoner’s liking. See
Lewis v. Casey, supra. A federal law that
knocked out prisoners’ ability to obtain

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redress in situations where they are
victims of official misconduct, yet lack
any non-judicial means to protect
themselves, would have to be set aside as
unconstitutional under Lewis and the
original meaning of the due process
clause. Yet sec. 1915(g) does no such
thing. A prisoner who suffers a threat to
(or deprivation of) fundamental rights
has ready access to the courts. Consider
the list of options:
1. Pay the filing fee under 28 U.S.C.
sec. 1914 using assets on hand.
2. Save up in advance to be able to pay
the fee in a lump sum. (This would have
taken Lewis about two months, had he
deemed the litigation sufficiently
important to justify using all of his
income for this purpose.)
3. Refrain from frivolous litigation and
thus retain full advantage of
sec. 1915(a), which authorizes suits
without prepaying fees and costs.
4. Borrow the filing fee from friends or
relatives.
5. Borrow the filing fee from a lawyer--
for 42 U.S.C. sec. 1988 promises
reimbursement of prevailing prisoners’
legal expenses, and this plus a share of
any recovery may well attract the
assistance of counsel, who may (and often
do) advance their clients’ expenses in
contingent-fee cases. See Rand v.
Monsanto Co., 926 F.2d 596 (7th Cir.
1991). This option is useful only for
prisoners with substantial claims, for
only then will counsel see the prospect
of fees; but recall that the district
court limited its holding to prisoners
with substantial claims. Borrowing
against the prospect of one’s recovery is
the norm in tort litigation by persons
with substantial claims.
6. Sue in state rather than federal court-
-for sec. 1915(g) does not apply in state
court, and states must entertain sec. 1983
litigation on a parity with claims under
state law. See Howlett v. Rose, 496 U.S.
356 (1990). Some states charge less than
the $150 that it costs to file in
district court, and this would assist
prisoners even if a given state should
enact a statute parallel to sec. 1915(g).

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7. If all else fails, a prisoner may sue
without prepayment when "the prisoner is
under imminent danger of serious physical
injury." And this is just the category of
cases where fundamental rights are most
likely to be at stake.
Congress was entitled to conclude that
these seven options preserve adequate
opportunities for prisoners to vindicate
their fundamental rights. They show that
sec. 1915(g) effects no real limit on
access to courts by prisoners who use
their options carefully and responsibly.
Not all of the options will be available
all of the time. Prisoners who insist on
both filing frivolous suits and spending
their income as fast as they receive it,
which Lewis has done, will find when they
want to sue that options 1, 2, and 3 are
closed. But Congress may take them into
account, to encourage both thrift and
refraining from abusive litigation. Even
from an ex post perspective, however,
options 4 through 7 are adequate. The
worst possible case--a prisoner with no
friends or relatives, in a state whose
courts have a high filing fee and a
provision similar to sec. 1915(g), and who
waits until the very last minute (or
experiences an emergency) so that it is
not possible to secure counsel--still has
access to option 7. It is not necessary
to add an eighth, for "substantial"
claims. When bodily integrity is not at
stake, additional delay (while the
prisoner uses options 1 through 6) is
constitutionally tolerable even when
fundamental rights are implicated.
Thedesign of sec. 1915(g) is to leave
vital choices to the prisoner and the
bar, not to use case-by-case screening
for merit. That is a function of 28
U.S.C. sec. 1915A, for all prisoner suits;
the district court’s view effectively
obliterates sec. 1915(g) by requiring
abusers to be treated identically to
those filing their first suit.
Option 7, which allows suit without
prepayment when "the prisoner is under
imminent danger of serious physical
injury", can serve its role as an escape
hatch for genuine emergencies only if
understood reasonably. If limited to
situations in which, say, a beating is
ongoing, no prisoner will find solace;
once the beating starts, it is too late
to avoid the physical injury; and once

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the beating is over the prisoner is no
longer in "imminent danger" and so could
not use this proviso to seek damages
(though with a solid claim for damages
the prisoner would have an easier time
persuading a lawyer to advance the filing
fee). Reading the imminent-danger
language this way would make it
chimerical, a cruel joke on prisoners.
The imminent-danger language must be read
instead as having a role in those cases
where time is pressing and the prisoner
is unable to pursue the other options in
our list. When a threat or prison
condition is real and proximate, and when
the potential consequence is "serious
physical injury," then the courthouse
doors are open even to those who have
filed three frivolous suits and do not
have a penny to their name. It is not
possible to elaborate further; concrete
situations will set the stage for any
other gloss. Lewis, who wants counseling
for a mental condition, cannot take
advantage of this option.
Suppose that, instead of enacting
sec. 1915(g), Congress had repealed the
provision in sec. 1988 that requires
defendants to pay prevailing plaintiffs’
legal fees. Such a step could not be
thought unconstitutional, for it would
reinstate the norm of the American Rule,
under which each side bears its own legal
expenses. The American Rule applies to
wrongful-death suits and many other
contract and tort actions in which vital
rights are at stake. Repeal of sec. 1988
would strike hardest at the most
meritorious claims, for it is these that
are most likely to be worth counsel’s
while financially. What Congress did
instead is leave sec. 1988 on the books,
so that prisoners with substantial claims
have a good chance to vindicate them,
while making it harder for persons who
have demonstrated a proclivity to pursue
frivolous suits to continue abusing the
courts and their opponents. Section
1915(g) imposes a penalty for crying
"wolf." Making it harder to do so again
is an eminently reasonable approach, com
patible with all of the many
constitutional provisions that Lewis has
tried to set against it. The judgment of
the district court is
reversed.

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