Tucker, Cornelius v. Branker, G.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 1998 Decided May 12, 1998

No. 96-5177

Cornelius Tucker, Jr.,

Appellant

v.

G. Branker, Captain, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 96cv00526)

Rudolph Y. Kim, student counsel, argued the cause as

amicus curiae on the side of appellant, with whom Steven H.

Goldblatt, appointed by the court, and Jose C. Escano, stu-

dent counsel, were on the briefs.

R. Craig Lawrence, Assistant U.S. Attorney, argued the

cause for appellees, with whom Mary Lou Leary, U.S. Attor-

ney at the time the brief was filed, was on the brief.

Before: Ginsburg and Tatel, Circuit Judges, and Buckley,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: Cornelius Tucker, until recently a

state prisoner in North Carolina, challenges the constitution-

ality of the filing-fee provision of the Prison Litigation Re-

form Act of 1995, Title VIII of the Omnibus Consolidated

Rescissions and Appropriations Act of 1996, Pub. L. No. 104-

134, s 804, 110 Stat. 1321-66, 1321-73 (1996) (codified at 28

U.S.C. s 1915). Tucker contends that the filing-fee provision

violates his rights of access to the courts and to equal

protection of the laws, both as protected by the Due Process

Clause of the Fifth Amendment to the Constitution of the

United States.

I. Background

In 1892 the Congress gave the district courts discretion to

waive for indigents all or part of the fee normally required of

a plaintiff upon the filing of a civil action. See Act of July 20,

1892, ch. 209, 27 Stat. 252 (codified as amended at 28 U.S.C.

s 1915) (hereinafter IFP statute). In 1996 the Congress

amended the IFP statute with respect to suits filed by

prisoners, which were numerous and growing more so, based

upon the belief that most such suits were facially defective, if

not outright frivolous. As explained by one of its sponsors,

the goal of the PLRA was to reduce the number of such

meritless lawsuits:

Section 2 will require prisoners to pay a very small share

of the large burden they place on the Federal judicial

system by paying a small filing fee upon commencement

of lawsuits. In doing so, the provision will deter frivo-

lous inmate lawsuits. The modest monetary outlay will

force prisoners to think twice about the case and not just

file reflexively. Prisoners will have to make the same

decision that law-abiding Americans must make: Is the

lawsuit worth the price?

141 Cong. Rec. S7,526 (daily ed. May 25, 1995) (statement of

Senator Kyl).

The PLRA amended s 1915 in several respects relevant to

the present case. First, the statute newly requires that in

order to qualify as an indigent a prisoner must submit both

an affidavit stating that he cannot afford to pay the filing fee,

28 U.S.C. s 1915(a)(1), and a certified copy of his prison trust

fund account statement covering the most recent six months,

id. s 1915(a)(2). Second, the amended statute provides that

"the prisoner shall be required to pay the full amount of [the]

filing fee," id. s 1915(b)(1), upon the following terms. If the

prisoner cannot pay the entire fee at once, then he must pay

an

initial partial filing fee of 20 percent of the greater of (A)

the average monthly deposits to the prisoner's account;

or (B) the average monthly balance in the prisoner's

account for the 6-month period immediately preceding

the filing of the complaint or notice of appeal.

Id. s 1915(b)(1); thereafter, whenever "the amount in [his]

account exceeds $10" the prisoner must make monthly pay-

ments equal to 20 percent of the income credited to his

account during the preceding month until the prisoner has

paid the balance of the filing fee. Id. s 1915(b)(2). If the

prisoner cannot pay all or indeed any of the initial partial

filing fee, then under the so-called "safety-valve" provision he

may still proceed with his case and pay the whole fee over

time. See id. s 1915(b)(4) ("In no event shall a prisoner be

prohibited from bringing a civil action or appealing a civil or

criminal judgment for the reason that the prisoner has no

assets and no means by which to pay the initial partial filing

fee"). Third, the statute provides that the district court

"shall dismiss" a case filed IFP if it determines that the case

"(i) is frivolous or malicious; (ii) fails to state a claim on which

relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief." Id.

s 1915(e)(2)(B). Finally, the PLRA retained the provision

permitting the court to award costs to a successful IFP

plaintiff, id. s 1915(f)(1) (except against the United States);

and newly provided that if the court awards costs against an

unsuccessful prisoner then the prisoner is required to pay the

costs in the same manner as the filing fee. Id. s 1915(f)(2).

On March 18, 1996, which was before the effective date of

the PLRA, Tucker filed a pro se civil action under 42 U.S.C.

s 1983 against one Captain Branker (a correctional officer at

the prison in which Tucker was incarcerated) and the Presi-

dent and Vice President of the United States, alleging that

the defendants had violated his constitutional rights by,

among other things, (1) giving him the drug Thorazine four

times a day; (2) refusing to mail "10 suits" to various courts;

and (3) housing him with tuberculosis patients who refused to

take their medicine. Tucker applied for IFP status claiming

that his only income was $20 per month, which he needed for

"bare necessities." The prison accounting department certi-

fied that as of January 12, 1996 Tucker had no money in his

prison trust account. The district court granted Tucker's

application to proceed IFP but, pursuant to former 28 U.S.C.

s 1915(d), sua sponte dismissed Tucker's complaint because it

was "without basis in law or in fact." The court denied

Tucker's motion for reconsideration and he appealed.

We permitted Tucker to proceed IFP on appeal but, be-

cause the PLRA had become effective before he filed his

notice of appeal (on May 28, 1996), we ordered him to submit

his Prisoner Trust Account Report and a Consent to Collec-

tion of Fees from Trust Account and to pay the appropriate

portion of the filing fee of $105. Tucker refused to file the

report, sign the consent form, or pay the initial fee. Instead,

Tucker moved for reconsideration, asserting that the filing-

fee provision of the PLRA is unconstitutional and requesting

appointment of counsel. Tucker claimed that he was "without

income and bare necessities of life for toiletries, stamps, [and]

hygiene items which require any and all gifts of monies" and

that he was "bankrupt."

We denied Tucker's request for counsel but we did appoint

an amicus curiae to argue that the filing-fee provision of the

PLRA is unconstitutional. Other than his original handwrit-

ten motion for reconsideration, Tucker has not filed any brief

in support of his position but rather relies upon the argu-

ments of the amicus. Although Tucker is no longer incarcer-

ated, his challenge to the PLRA remains alive, as we have

held that "release from prison does not relieve [a former

prisoner] of past due obligations under the PLRA." In re

Smith, 114 F.3d 1247, 1249 (D.C. Cir. 1997).

II. Analysis

The amicus argues on behalf of Tucker that the filing-fee

provision of the PLRA violates his due process right of access

to the courts and that it discriminates against prisoners in

violation of the equal protection component of due process.

We conclude that the filing-fee provision is constitutional.

A. Due Process

Prisoners have the right, as a matter of due process, to

adequate, effective, and meaningful access to the courts. See,

e.g., Lewis v. Casey, 116 S. Ct. 2174, 1279-80 (1996); Bounds

v. Smith, 430 U.S. 817, 822 (1977); Procunier v. Martinez,

416 U.S. 396, 419 (1974). But they do not ordinarily have a

right to cost-free access: "The correct principle is that rea-

sonable costs may be imposed on persons who want to sue."

Lumbert v. Illinois Dep't of Corrections, 827 F.2d 257, 259

(7th Cir. 1987).

The present question, therefore, is whether the filing-fee

provision of the PLRA denies prisoners effective access to the

courts. For the reasons set out below, we join five other

circuits in concluding that it does not. See Shabazz v. Par-

sons, 127 F.3d 1246, 1248-49 (10th Cir. 1997); Norton v.

Dimazana, 122 F.3d 286, 289-91 (5th Cir. 1997); Nicholas v.

Tucker, 114 F.3d 17, 21 (2d Cir. 1997); Roller v. Gunn, 107

F.3d 227, 231-33 (4th Cir. 1997); Hampton v. Hobbs, 106

F.3d 1281, 1284-86 (6th Cir. 1997).

We begin with the observation that, under the safety-valve

provision, even a destitute prisoner may file his suit if he

wants to, without having to pay any initial fee; his only

obligation is to pay the fee when and if he can, as detailed

below. 28 U.S.C. s 1915(b)(4); see Norton, 122 F.3d at 290-

91; Nicholas, 114 F.3d at 21; Roller, 107 F.3d at 233;

Hampton, 106 F.3d at 1284. Second, a prisoner with only

modest means must make only a proportionately modest up-

front payment--20% of the average monthly deposits or

balance in his account over a six-month period. Whether the

prisoner paid some or none of the fee upon filing, the balance

due is collected from him at the 20% rate only when and if

"the amount in [his] account exceeds $10." 28 U.S.C.

s 1915(b)(1) & (2); see Roller, 107 F.3d at 233; Hampton,

106 F.3d at 1284. Third, even an indigent prisoner who loses

his case and must pay the defendant's costs may do so over

time, upon the same terms as the filing fee. 28 U.S.C.

s 1915(f)(2)(B). In sum, the payment requirement of the

PLRA never exacts more than 20% of an indigent prisoner's

assets or income.

The amicus contends that Tucker challenges the PLRA

filing-fee provision "as applied" to him. Although Tucker

himself is not clear on the point we shall accept the amicus's

characterization of Tucker's challenge for the sake of the

argument. The argument is that the fee requirement denies

Tucker due process of law by forcing him to choose between

filing a lawsuit and being able to buy the necessities of life.

Although Tucker did claim (in his motion for reconsidera-

tion of our order that he submit the statement) that he is

"without ... [the] bare necessities of life," he also stated in

his application for IFP status before the district court that he

receives $20 per month. Under the formula of the PLRA,

therefore, Tucker is required to pay only $4 upon filing his

appeal and $4 per month thereafter (as long as his account

has a balance of at least $10) until the full fee of $105 has

been paid.

Tucker's claim that the minimal payments required by the

PLRA force him to choose between a lawsuit and the "neces-

sities of life" is manifestly exaggerated. First, the State of

North Carolina is constitutionally bound to provide Tucker, as

its prisoner, with the necessities of life, including "adequate

food, clothing, shelter, and medical care," Farmer v. Bren-

nan, 511 U.S. 825, 832 (1994), and Tucker does not in his

complaint or elsewhere suggest that the State is failing to do

so. Second, after paying $4 per month Tucker would still be

left with $16 per month for discretionary purchases. That

Tucker must choose whether to spend $4 on additional ameni-

ties or on his lawsuit, far from unduly burdening his access to

court, merely requires him to make the same kind of econom-

ic choice that any other would-be civil plaintiff must make.

As stated by Judge Posner:

If the inmate thinks that a more worthwhile use of his

funds would be to buy [in Tucker's case, toiletries,

stamps, and hygiene items] ... than to file a civil rights

suit, he has demonstrated an implied evaluation of the

suit that the district court is entitled to honor.

Lumbert, 827 F.2d at 260. Because Tucker is not forced to

choose between the necessities of life and his lawsuit, we

conclude that the filing-fee provision, as applied to Tucker,

does not unconstitutionally impinge upon his right of access to

the courts.

The amicus cites several pre-PLRA cases in which, under

the prior version of s 1915, the courts of appeals held that a

district court abused its discretion by requiring an indigent

prisoner to pay too great a portion of the filing fee. See, e.g.,

Olivares v. Marshall, 59 F.3d 109, 111-12 (9th Cir. 1995)

(disapproving fee of $20 for prisoner who had $14.61 in his

account, earned $14.61 per month, and received $110 from

family over six months, but upholding fee of $30 for prisoner

who received $310 from family over six months and spent $35

per month); In re Epps, 888 F.2d 964, 968-69 (2d Cir. 1989)

(reversing fee of $18.47 for prisoner with average monthly

income of $61.53). But see, e.g., Smith v. Martinez, 706 F.2d

572, 574 (5th Cir. 1983) (approving fee of $3 for prisoner who

had monthly income of between $11 and $13). See also, e.g.,

In re Williamson, 786 F.2d 1336, 1338-41 (8th Cir. 1986)

(setting standards for partial filing fees in prisoner civil rights

cases); Evans v. Croom, 650 F.2d 521, 525 (4th Cir. 1981)

(approving in part district court rule requiring payment of up

to 15% of sum received by prisoner over six month period).

Because these cases were based upon s 1915 rather than

upon the due process right of access to court and were

decided when that statute gave the district court discretion to

waive the fee, they do not lend any support to the proposition

that the PLRA is unconstitutional as applied to Tucker.

One due process case does lurk among those the amicus

cites, namely, In re Green, 669 F.2d 779 (D.C. Cir. 1981).

There, however, the facts were extreme: the district court

required the indigent plaintiff to pre-pay not only the full

filing fee but also a $100 deposit against costs he might be

assessed. Id. at 784-86. The percentage-based scheme of

the PLRA is, as we have seen, much less burdensome and for

that reason constitutional.

The amicus also argues that cases such as M.L.B. v. S.L.J.,

117 S. Ct. 555 (1996), and Boddie v. Connecticut, 401 U.S. 371

(1971), require that Tucker be allowed to file his civil suit

without having to pay any part of the filing fee, either initially

or in installments. The amicus, however, reads those cases

too broadly. In general, the Supreme Court has held that

due process does not require that filing or other fees be

waived for indigent civil litigants. See Ortwein v. Schwab,

410 U.S. 656, 659-60 (1973) (per curiam) (state may require

indigent to pay fee for review of decision reducing welfare

benefits); United States v. Kras, 409 U.S. 434, 443-46 (1973)

(indigent may be required to pay fee to file for bankruptcy).

The Court has held that either the equal protection clause or

the due process clause requires that certain fees be waived

for indigent defendants in criminal cases, see, e.g., Griffin v.

Illinois, 351 U.S. 12, 18-19 (1956) (plurality opinion) (holding

unconstitutional requirement that criminal defendant pay for

transcript in order to appeal conviction), and for indigent

litigants in civil cases in which certain fundamental interests

are at stake, see, e.g., M.L.B., 117 S. Ct. at 564-67 (state

cannot require indigent mother to pay record preparation fee

in order to challenge state's decision to terminate her paren-

tal rights); Boddie, 401 U.S. at 376-82 (because of fundamen-

tal nature of marriage and exclusivity of state remedy, state

may not require indigents to pay filing fee for divorce pro-

ceedings). M.L.B. and Boddie are clearly inapposite to this

civil case. Tucker's claims do not involve fundamental family-

related concerns, see M.L.B., 117 S. Ct. at 563-64 ("the Court

has consistently set apart from the mine run of cases those

involving state controls or intrusions on family relationships").

And, as discussed above, the filing-fee provision of the PLRA

"does not present the sort of insurmountable barrier to filing

suit considered in those cases." Roller, 107 F.3d at 232 n.1.

Finally, the amicus argues that the PLRA denies indigent

prisoners due process because it requires the district court

sua sponte to dismiss an IFP case that "fails to state a claim

on which relief may be granted." 28 U.S.C.

s 1915(e)(2)(B)(ii). At least one circuit judge has expressed

the view that this provision is unconstitutional. Mitchell v.

Farcass, 112 F.3d 1483, 1490-93 (11th Cir. 1997) (Lay, J.

concurring). Tucker, however, does not have standing to

raise this argument (and neither, therefore, has the amicus)

because the district court did not dismiss Tucker's complaint,

pursuant to the statute as amended, for failure to state a

claim. Rather, the district court dismissed Tucker's com-

plaint, pursuant to the prior version of s 1915, as frivolous;

the PLRA was not yet in force.

For the foregoing reasons we hold that the filing-fee provi-

sion of the PLRA does not violate Tucker's due process right

of access to the courts.

B. Equal Protection

The amicus argues that the filing-fee provision of the

PLRA violates the equal protection component of the due

process clause because it discriminates against prisoners.

Again, we join four other circuits in concluding that the

PLRA does not deny prisoners the equal protection of the

law. See Lucien v. DeTella, ___ F.3d ____, 1998 WL 169763,

at *1 (7th Cir. Apr. 13, 1998); Nicholas, 114 F.3d at 19-21;

Mitchell, 112 F.3d at 1487-89; Roller, 107 F.3d at 233-34;

Hampton, 106 F.3d at 1286-87.

Initially we reject the amicus's argument that the filing-fee

provision is subject to strict scrutiny because it substantially

burdens a prisoner's fundamental right of access to the

courts. A legislative classification that does not burden ei-

ther a fundamental right or a suspect class must be reviewed

under the rational basis test. See Vacco v. Quill, 117 S. Ct.

2293, 2297 (1997); Heller v. Doe, 509 U.S. 312, 319 (1993);

New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam).

We have already determined that the filing-fee provision of

the PLRA does not burden a prisoner's right of effective

access to the courts. See Part II.A above; see also Nicholas,

114 F.3d at 20; Roller, 107 F.3d at 233; Hampton, 106 F.3d

at 1286. Nor do prisoners or indigents constitute a suspect

class. See Harris v. McRae, 448 U.S. 297, 323 (1980) (indi-

gents not a suspect class); Nicholas, 114 F.3d at 20 (prison-

ers not a suspect class); Roller, 107 F.3d at 233 (neither

prisoners nor indigents a suspect class). Therefore, strict

scrutiny is inappropriate and we apply the rational basis test.

A classification passes that test "if there is a rational

relationship between the disparity of treatment and some

legitimate governmental purpose." Heller, 509 U.S. at 320.

Even if the legislature does not articulate the purpose under-

lying the distinction, we must uphold it " 'if there is any

reasonably conceivable state of facts that could provide a

rational basis for the classification.' " Id. (quoting Federal

Communications Comm'n v. Beach Communications, Inc.,

508 U.S. 307, 313 (1993)).

The filing-fee provision of the PLRA certainly passes the

rational basis test. The Congress, which obviously has a

legitimate interest in keeping meritless litigation out of the

federal courts, could reasonably have concluded that much of

the increasing volume of litigation that prisoners bring is

indeed meritless. The courts themselves are well aware of

that fact. See, e.g., Nicholas, 114 F.3d at 20 ("federal courts

spend an inordinate amount of time on prisoner lawsuits, only

a very small percentage of which have any merit"); Hamp-

ton, 106 F.3d at 1286 (prisoner claims, "many of which are

meritless," are "skyrocketing" in number). Therefore, the

Congress legitimately could have determined that requiring

indigent prisoners to pay the ordinary filing fee, even if they

could do so only over time, would decrease the amount of

meritless litigation by causing prisoners to internalize the

cost of filing their lawsuits.

Moreover, there are rational reasons for treating prisoners

and non-prisoners differently: First, as noted above, a prison-

er's basic necessities are paid for by the state; unlike other

indigents, therefore, a prisoner is not forced to choose be-

tween such necessities and his lawsuit. See Nicholas, 114

F.3d at 20; Roller, 107 F.3d at 234. Second, perhaps because

prisoners have too much time on their hands, litigation has

for many become a pastime, see Nicholas, 114 F.3d at 20;

Mitchell, 112 F.3d at 1489; Roller, 107 F.3d at 234; that is,

just another form of recreation for which the taxpayers foot

the bill. Third, because prisons have some measure of con-

trol over a prisoner's funds, the requirement of making post

hoc installment payments is easier to administer and enforce

with respect to indigent prisoners than it would be with

respect to indigents at large. See Roller, 107 F.3d at 234.

The amicus's argument that the filing-fee provision fails

the rational basis test relies almost exclusively upon Rinaldi

v. Yeager, 384 U.S. 305 (1966). According to the amicus that

case stands for the proposition that the Congress cannot treat

indigent prisoners with meritorious claims the same way it

treats indigent prisoners with meritless claims. The New

Jersey statute at issue in Rinaldi initially provided every

indigent criminal defendant with a free trial transcript for the

purpose of his direct appeal, but then required only defen-

dants who lost their appeals and who were sentenced to

prison to reimburse the state for the cost of the transcript.

The Supreme Court held that the statute violated the equal

protection clause because it discriminated irrationally against

unsuccessful appellants who were prisoners--as compared to

unsuccessful appellants who received a suspended sentence,

or probation, or were fined. 384 U.S. at 308-09. Insofar as

the purpose of the statute was simply to recoup the State's

expenditure, the Court said:

To fasten a financial burden only upon those unsuccessful

appellants who are confined in state institutions ... is to

make an invidious discrimination.

Id. at 309. The only other purpose of the statute advanced

by the State was to deter frivolous appeals. To this sugges-

tion the Court responded:

By imposing a financial obligation only upon inmates of

institutions, the statute inevitably burdens many whose

appeals, though unsuccessful, were not frivolous, and

leaves untouched many whose appeals may have been

frivolous indeed.

Id. at 310.

As we understand Rinaldi it does not control this case.

The Court in Rinaldi concluded that the New Jersey statute

was irrational in relevant part because there was only a weak

association between failure and frivolity among direct appeals

of a criminal conviction. Indeed, in our experience most

unsuccessful appeals are not frivolous; they are just unper-

suasive. Here, however, the Congress could rationally have

found that most civil litigation initiated by indigent prisoners

is meritless. Not only do prisoners have a lower opportunity

cost for their time than other indigent (and in all likelihood,

non-indigent) litigants, see Mitchell, 112 F.3d at 1489, but

experience shows that their cases are in fact more often than

not meritless. For example, during the debate on the PLRA

Senator Hatch reported:

In 1994, over 39,000 lawsuits were filed by inmates in

Federal courts, a staggering 15 percent increase over the

number filed the previous year. The vast majority of

these suits are completely without merit. Indeed, rough-

ly 94.7 percent are dismissed before the pretrial phase,

and only a scant 3.1 percent have enough validity to

reach trial.

141 Cong. Rec. S14,418 (daily ed. Sept. 27, 1995); see also

Judicial Business of the United States Courts: Annual Re-

port 153 (1997). These figures could lead a rational legislator

to conclude that a large portion of prisoner litigation in

particular is without merit. Therefore, unlike the statute in

Rinaldi requiring reimbursement by prisoners who lose their

criminal appeal but not by other unsuccessful appellants,

making the filing-fee provision of the PLRA applicable to

indigent prisoners but not to other indigent civil plaintiffs has

a rational basis and does not violate the equal protection

component of due process.

III. Conclusion

In sum, we hold that the filing-fee provision of the PLRA

does not violate either the appellant's due process right of

access to the courts or his right to the equal protection of the

laws. Accordingly, Tucker is required either to pay the

appropriate filing fee or to suffer his case to be dismissed.

So ordered.