Skinner v. Govorchin

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0360p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

CHRISTOPHER SKINNER,

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No. 05-2458

v.

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A. PETER GOVORCHIN, et al., -

Defendants-Appellees. -

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 04-73816—Nancy G. Edmunds, District Judge.

Submitted: July 18, 2006

Decided and Filed: September 18, 2006

Before: GILMAN and SUTTON, Circuit Judges; WISEMAN, Senior District Judge.*

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COUNSEL

ON BRIEF: Christopher Skinner, Adrian, Michigan, pro se.

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OPINION

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SUTTON, Circuit Judge. While incarcerated at the Macomb Correctional Facility in New

Haven, Michigan, Christopher Skinner filed a complaint against four state employees—Peter

Govorchin, Hugh Wolfenbarger, Linda Wittman and Doug Ford—alleging that they had wrongfully

garnished appeals costs charged against him from his prison account. The district court summarily

dismissed the complaint, and Skinner, proceeding pro se, appeals. For the reasons that follow, we

affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

I.

In 2001, Skinner filed a § 1983 complaint alleging that the State had wrongfully taken

several of his electronic and computer publications. The district court granted the defendants’

motion for summary judgment, and a panel of our court affirmed on November 4, 2003. Skinner v.

Jones, 79 F. App’x 862 (6th Cir. Nov. 4, 2003). On November 12, 2003, Govorchin, an assistant

*

The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle District of

Tennessee, sitting by designation.

1

No. 05-2458 Skinner v. Govorchin, et al. Page 2

attorney general, submitted a bill of appellate costs to the Sixth Circuit for $1,619.25 under 28

U.S.C. § 1920 and Rule 39 of the Federal Rules of Appellate Procedure. Skinner did not oppose the

request.

On March 5, 2004, our court issued the mandate in Skinner v. Jones and awarded $1,619.25

in costs to the State. On March 8, 2004, Govorchin wrote a letter to Wittman, a litigation manager

for the Michigan Department of Corrections, asking her to process the March 5 mandate. On March

25, 2004, Wittman asked Ford, an administrative officer at the Macomb prison, to collect the costs

award from Skinner’s prison trust account. And on April 8, 2004, Ford began withdrawing funds

from Skinner’s account, taking all but $10 from that account each month. After complaining about

the removal of these funds from his account and after failing to obtain relief from Wolfenbarger (the

prison warden) through the prison grievance process, Skinner filed this § 1983 complaint, alleging

that the four defendants had wrongfully garnished funds from his prison account. Skinner sought

relief under a wide variety of federal constitutional theories, the Federal Rules of Appellate

Procedure, the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(f), and state law. The

defendants filed a motion to dismiss or, in the alternative, for summary judgment. Relying on a

magistrate judge’s report and recommendation, the district court rejected each of Skinner’s claims

as a matter of law.

II.

Contrary to Skinner’s claim against all four defendants, the award as an initial matter

complied with Rule 39 of the Federal Rules of Appellate Procedure. That rule says that “unless the

law provides or the court orders otherwise,” costs may be “taxed against the appellant” when the

appellee prevails (and vice versa when the appellant prevails). Fed. R. App. P. 39(a). The rule then

lays out the procedure for assessing costs:

(1) A party who wants costs taxed must—within 14 days after entry of

judgment—file with the circuit clerk, with proof of service, an itemized and verified

bill of costs.

(2) Objections must be filed within 10 days after service of the bill of costs, unless

the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for insertion in

the mandate, but issuance of the mandate must not be delayed for taxing costs. If the

mandate issues before costs are finally determined, the district clerk must—upon the

circuit clerk’s request—add the statement of costs, or any amendment of it, to the

mandate.

Fed. R. App. P. 39(d).

Under the rule, the State as a prevailing appellee had a right to request costs. And the court’s

award of costs conformed in each particular with Rule 39(d). On November 4, 2003, the Skinner

v. Jones panel issued an order rejecting Skinner’s appellate arguments. On November 12, 2003,

eight days after the court entered the order, the State filed with the circuit clerk, with proof of

service, an itemized and verified bill of costs. Skinner did not object to the bill of costs within ten

days (and indeed did not object to the bill until filing this complaint eleven months later), and the

court at no point extended the time for objecting to the bill of costs. On March 5, 2004, eight days

after the court denied Skinner’s motion for rehearing en banc, the clerk’s office issued the court’s

mandate, which included the itemized statement of costs imposed on Skinner.

No. 05-2458 Skinner v. Govorchin, et al. Page 3

Even if the court’s award of costs did not violate Rule 39 of the Federal Rules of Appellate

Procedure, Skinner contends that it violated the Prison Litigation Reform Act, which governs civil

actions filed by prisoners. The applicable sections of the PLRA provide:

(f) (1) Judgment may be rendered for costs at the conclusion of the suit or action as

in other proceedings . . . .

(2) (A) If the judgment against a prisoner includes the payment of costs under

this subsection, the prisoner shall be required to pay the full amount of the

costs ordered.

(B) The prisoner shall be required to make payments for costs under this

subsection in the same manner as is provided for filing fees under subsection

[(b)(2)].

(C) In no event shall the costs collected exceed the amount of the costs

ordered by the court.

28 U.S.C. § 1915(f).

At first blush, it is difficult to see how this award of costs violated the PLRA. A review of

the prior case shows that it involved a “judgment against a prisoner [that] include[d] the payment

of costs,” and the judgment “rendered for costs” came “at the conclusion of the suit.”

Skinner maintains, however, that this award violates the PLRA because: (1) Rule 39 of the

Federal Rules of Appellate Procedure applies “unless the law provides . . . otherwise”; (2) the PLRA

is a law; (3) the PLRA provides otherwise by saying that the prisoner must pay the costs award only

“[i]f the judgment against a prisoner includes the payment of costs,” 28 U.S.C. § 1915(f)(2)(A)

(emphasis added); and (4) the judgment entered against Skinner in this case did not “include[]” an

award of costs because the costs award was entered later in connection with the issuance of the

mandate. To his credit, Skinner has identified one case, Feliciano v. Selsky, 205 F.3d 568 (2d Cir.

2000), that appears to embrace this line of analysis. There, an inmate lost a § 1983 action against

prison officials and appealed to the Second Circuit, which affirmed. The State filed a bill of costs

(totaling $54.32) within the time frame prescribed by Rule 39, and the prisoner timely objected. Id.

at 569–70. In denying the request for costs, the court interpreted § 1915(f)(2)(A) as falling within

the “law provides otherwise” language of Rule 39(a), noting that the appellate rule would allow for

the traditional taxation of costs “but for the in forma pauperis status of [the appellant].” Id. at 570.

The court then reasoned that its summary order affirming the district court’s judgment had not

“include[d]” a provision for the payment of costs by the inmate. “Unless there is a specific direction

by the court for the payment of costs by a prisoner proceeding in forma pauperis,” the court

concluded that “no costs may be taxed by the prevailing party.” Id. at 572.

We are not prepared to follow Skinner, accompanied by Feliciano, down this road. First,

while Rule 39(a) acknowledges that another “law” could “provide[] otherwise” when it comes to

the procedures for taxing costs established by Rule 39(d), the PLRA does not seem to be such a law.

The operative section of the PLRA begins by saying, “Judgment may be rendered for costs at the

conclusion of the suit or action as in other proceedings.” 28 U.S.C. § 1915(f)(1) (emphasis added).

The “as in other proceedings” language suggests that the PLRA does not mean to alter the traditional

mechanics for awarding costs—set forth in Rule 39(d)—but to establish rules unique to indigent

prisoners for paying such costs. See id. § 1915(b)(1) (requiring prisoners to pay the entire filing fee

and providing a formula for calculating the amount of the initial filing fee payment when the

prisoner does not have sufficient funds to pay the entire filing fee at once); id. § 1915(b)(2)

(providing a formula for the monthly payment of any outstanding balance due after the partial

No. 05-2458 Skinner v. Govorchin, et al. Page 4

payment of the filing fee); id. § 1915(b)(3) (mandating that the amount collected for the filing fee

may not exceed the amount permitted by statute).

Second, once one accounts for the “as in other proceedings” phrase, the language upon which

Skinner relies—“If the judgment against a prisoner includes the payment of costs under this

subsection, the prisoner shall be required to pay the full amount of the costs ordered”—presents a

weak foundation for altering the traditional Rule 39(d) procedure for awarding costs. Even the most

literal reading of the sentence does not say that prisoners must pay costs only when the costs award

appears in a court directive called a judgment, as opposed to say an order or mandate; it simply says

that such costs awards must be paid by the prisoner when included in the judgment. And the context

of the sentence offers no indication that Congress meant to use “judgment” in an exclusive sense.

To be sure, one can imagine settings in which separate references to judgments and mandates might

have distinct meanings. Compare BLACK’S LAW DICTIONARY 846 (7th ed. 1999) (stating that “[t]he

term ‘judgment’ includes a decree and any order from which an appeal lies”), with id. at 973

(defining “mandate” as “[a]n order from an appellate court directing a lower court to take a specified

action”). But that is not what the PLRA says. And it does no perceptible harm to the PLRA to

conclude that a costs award may appear in a judgment or in an order or, as here, in conjunction with

the issuance of the mandate when the inmate does not oppose the request for costs. Cf. 28 U.S.C.

§ 1920 (“A bill of costs shall be filed in the case and, upon allowance, included in the judgment or

decree.”). Nothing in the history of the passage of the PLRA suggests any reason why Congress

would have wished to permit costs awards only when they appear in “judgments” and would have

wished in the process to alter the traditional application of Rule 39(d) in this setting.

Third, Skinner’s proposed interpretation makes little sense. It would force courts to decide

whether to impose costs at the time they reject the losing party’s claims on the merits rather than

waiting, as Rule 39(d) contemplates, to see if the prevailing party chooses to seek costs. In the

context of indigent prisoner claims, it is by no means obvious that the prevailing party against the

inmate (usually the State) necessarily would seek costs. Under Skinner’s proposed interpretation,

indigent prisoners, and indigent prisoners alone, would face the risk of having costs entered against

them even when the State would not have sought them in the first instance.

Nor is it apparent who would benefit from this rule. As shown, it would not necessarily

benefit indigent prisoners in the long run, even if it would give Skinner a break here. And States,

to our knowledge, do not reflexively seeks costs against inmate litigants, perhaps because they are

frequently indigent or perhaps because the state resources needed to collect such awards frequently

exceed the value of the awards. (Consider the $54 award in Feliciano.) At any rate, States, like all

litigants, know how to seek costs when they want them.

Skinner’s proposed rule also fails to benefit the courts. We can think of no benefit to courts

(and clerks’ offices) from being asked to vary the normal process for awarding costs under Rule

39(d) for one set of litigants. Courts are far better equipped to rule on contested motions (or even

uncontested motions, as in this case) than they are to decide in the abstract whether a costs award

might be appropriate. Every one of these problems is avoided if we construe the provision

consistently with Rule 39(d) rather than inconsistently with it. See Morton v. Mancari, 417 U.S.

535, 551 (1974) (noting that “when two statutes are capable of co-existence, it is the duty of the

courts, absent a clearly expressed congressional intention to the contrary, to regard each as

effective”); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984).

Fourth, while the brief analysis in Feliciano suggests that the Second Circuit might have

taken a different route here, the court did not have occasion to consider the impact of its decision

on Rule 39(d) or some of the unusual consequences of its interpretation. Because we construe

§ 1915(f) of the PLRA in harmony with Rule 39(d), we do not follow Feliciano here.

No. 05-2458 Skinner v. Govorchin, et al. Page 5

Under these circumstances, Skinner’s challenge to the award of costs must fail. When the

State sought costs in this case, Skinner failed to object to the request within 10 days, as Rule 39

requires, and as a result the court imposed them in connection with the issuance of the mandate.

Had Skinner objected to the State’s request (or to the amount of it), the panel would have ruled on

the request and issued a separate order regarding costs. Because the State (and this court) complied

with Rule 39, and because nothing in the PLRA requires a different procedure for awarding costs,

we reject Skinner’s argument.

III.

Although Skinner’s challenge to the court’s award of costs misses the mark, his challenge

to the State’s collection of those costs does not. With the passage of the PLRA, Congress created

special payment procedures that apply to prisoners who appeal in forma pauperis. Under those

payment procedures, which apparently were mislabeled, see In re Prison Litigation Reform Act, 105

F.3d 1131, 1138 (6th Cir. 1997) (“Section 1915(f)(2)(B) mistakenly refers to § 1915(a)(2) as the

authoritative subsection for the payment process. . . . The payment process is located in

§ 1915(b)(2).”), the State may collect costs awards in the same manner as it collects filing fees. The

filing-fee provision says:

After payment of the initial partial filing fee, the prisoner shall be required to make

monthly payments of 20 percent of the preceding month’s income credited to the

prisoner’s account. The agency having custody of the prisoner shall forward

payments from the prisoner’s account to the clerk of the court each time the amount

in the account exceeds $10 until the filing fees are paid.

28 U.S.C. § 1915(b)(2).

With respect to collecting costs, as with collecting filing fees, then, the State may collect the

award in monthly increments—by withdrawing 20% of the inmate’s “preceding month’s income

credited” to his prisoner account until the full award has been paid so long as $10 remains in the

account each month. The State in this instance, however, removed money from Skinner’s trust

account at the monthly rate of 100%. This the statute does not allow.

Nor, contrary to the State’s suggestion, does Skinner’s requested injunction asking the

defendants prospectively to terminate this illegal practice violate the Tenth or Eleventh

Amendments. See Ex Parte Young, 209 U.S. 123 (1908); Supreme Ct. of Va. v. Consumers Union

of U.S., Inc., 446 U.S. 719, 736 (1980); Gerstein v. Pugh, 420 U.S. 103, 108 n. 9 (1975). We thus

remand the case to the district court to enter an injunction ordering defendants to conduct any further

garnishment of Skinner’s prison account, at least for purposes of paying this costs award, at the 20%

rate per month contemplated by § 1915(b)(2). Cf. McGore v. Wrigglesworth, 114 F.3d 601, 606–07

(1997).

IV.

Contending that Govorchin (the assistant attorney general) was responsible for the improper

garnishment of some of the money taken from his prison trust account, Skinner seeks monetary relief

against him in his official and individual capacities under § 1983. As to the official-capacity claim,

the Tenth and Eleventh Amendments bar suits in federal court when the action is “in essence one

for the recovery of money from the state [and] the state is the real, substantial party in interest,”

which invariably will be the case when the claimant sues a state employee in his official capacity.

Edelman v. Jordan, 415 U.S. 651, 663 (1974); see id. (noting “that a suit by private parties seeking

to impose a liability which must be paid from public funds in the state treasury is barred by the

Eleventh Amendment”); Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005) (en banc).

No. 05-2458 Skinner v. Govorchin, et al. Page 6

That Skinner seeks money damages in the form of a reimbursement of funds paid does not

change things. In Ford Motor Company v. Indiana Department of Treasury, 323 U.S. 459 (1945),

overruled on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 614

(2002), a taxpayer who had paid taxes to Indiana under protest sought a refund of those taxes from

the state officials who had collected them. Even though the taxpayer “at one time had the money,

and paid it over to the State pursuant to an allegedly unconstitutional tax exaction,” Edelman, 415

U.S. at 669, the Court held that the Eleventh Amendment barred an action in federal court for

reimbursement by the State of the taxes unless the State had consented to such a suit. Ford Motor

Co., 323 U.S. at 464; see also Papasan v. Allain, 478 U.S. 265, 278 (1986) (noting that relief should

not be granted if “the relief is tantamount to an award of damages for a past violation of federal law,

even though styled as something else”).

As to Skinner’s individual-capacity claim, sovereign immunity does not bar the suit, but

prosecutorial immunity does. “Where relief is sought under general law from wrongful acts of state

officials, the sovereign’s immunity . . . does not extend to wrongful individual action, and the citizen

is allowed a remedy against the wrongdoer personally.” Ford Motor Co., 323 U.S. at 462. Even

though the State’s sovereign immunity does not preclude suits against state officials in their

individual capacities for damages under § 1983, the common-law doctrine of prosecutorial immunity

still applies. In Imbler v. Pachtman, 424 U.S. 409 (1976), the Court held that state prosecuting

attorneys generally are absolutely immune from § 1983 liability.

A prosecutor is duty bound to exercise his best judgment both in deciding which

suits to bring and in conducting them in court. The public trust of the prosecutor’s

office would suffer if he were constrained in making every decision by the

consequences in terms of his own potential liability in a suit for damages. Such suits

could be expected with some frequency, for a defendant often will transform his

resentment at being prosecuted into the ascription of improper and malicious actions

to the State’s advocate.

Id. at 424–25. Since Imbler, courts have extended the immunity beyond “initiating a prosecution

and . . . presenting the State’s case,” id. at 431, to cover any activities undertaken “in connection

with [one’s] duties in functioning as a prosecutor,” Higgason v. Stephens, 288 F.3d 868, 877 (6th

Cir. 2002). The immunity also extends beyond the criminal process to conduct in civil proceedings

where a government attorney is operating in an enforcement role in “initiating . . . judicial

proceedings,” Cooper v. Parrish, 203 F.3d 937, 947 (6th Cir. 2000), or “undertak[ing] the defense

of a civil suit,” Al-Bari v. Winn, No. 89-5150, 1990 WL 94229, at *1 (6th Cir. July 9, 1990).

“The analytical key to prosecutorial immunity,” we have explained, “is advocacy—whether

the actions in question are those of an advocate.” Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir.

2003), reh’g denied (2004) (emphasis omitted). If the challenged actions of the prosecutor were not

performed in his role as advocate, if they “do not relate to an advocate’s preparation for the initiation

of a prosecution or for judicial proceedings,” then only “[q]ualified immunity” applies. Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993).

In this instance, the district court correctly found that the challenged actions by Govorchin

were all “intimately associated with the judicial phase” of the case and accordingly were entitled to

absolute immunity. Govorchin’s efforts to recover costs in Skinner v. Jones represented a

paradigmatic act of advocacy on behalf of the State, as the pursuit of costs at the conclusion of

litigation is a function ordinarily performed by an attorney acting on behalf of a client and thus is

an integral part of the litigation itself.

No. 05-2458 Skinner v. Govorchin, et al. Page 7

V.

Skinner also challenges the district court’s dismissal of his claims against Wolfenbarger. In

his complaint, Skinner contended that Wolfenbarger (1) failed to respond appropriately to Skinner’s

grievance appeal and (2) failed to exercise appropriate supervisory control over the other prison-

employee defendants, Wittman and Ford. The district court properly dismissed both claims as a

matter of law.

Skinner’s complaint regarding Wolfenbarger’s denial of Skinner’s grievance appeal, it is

clear, fails to state a claim. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (reversing

denial of summary judgment to prison officials whose only involvement was the denial of

administrative remedies); Martin v. Harvey, 14 F. App’x 307, 309 (6th Cir. June 7, 2001) (affirming

dismissal of the claims against a defendant whose only involvement in the matters giving rise to the

§ 1983 action was his denial of the appeal of the plaintiff-prisoner’s grievance). And Skinner cannot

premise a claim on Wolfenbarger’s supervisory status because there is no respondeat superior

liability under § 1983. See Shehee, 199 F.3d at 300 (noting that “§ 1983 liability must be based on

more than respondeat superior, or the right to control employees”).

VI.

For these reasons, we affirm in part, reverse in part and remand for further proceedings

consistent with this opinion.