Ronald Weaver Leo McKaye Morris Martin v. Raymond Toombs Robert Brown, Jr. Donald Mason Robert Mulvaney Ted Strassburg

NATHANIEL R. JONES, Circuit Judge,

dissenting.

The majority perceives no constitutional problem to the imposition of costs against non-frivolous appeals brought by indigent prisoners. In my view, however, the re-coupment of costs from these indigent inmates is not rationally related to the achievement of any valid government purpose. Thus, I would find that, as applied to this case, the imposition of costs violates the plaintiffs’ equal protection rights. I respectfully dissent.

The plaintiffs filed their complaint because prison officials intercepted and confiscated legal materials mailed by two of the plaintiffs to the third plaintiff. The district court dismissed the suit because the court found that the state may constitutionally impose time and place restrictions on inmate-to-inmate legal correspondence. After an unsuccessful appeal, the state of Michigan requested that the costs of the appeal — $128.00—be taxed to plaintiffs. It is undisputed that plaintiffs have no assets other than the amounts in their prison accounts: $2.46 for Weaver, $0.94 for McKaye, and $35.70 for Martin.

Equal protection challenges to statutes, assuming neither a fundamental right nor suspect classification is involved, are usually evaluated under a rational basis test. “Under the rational basis test, a statutory classification violates the Equal Protection Clause if it ‘rests on grounds wholly irrelevant to the achievement of [any governmental] objective.’ ” Ledesma v. Block, 825 F.2d 1046, 1051 (6th Cir.1987). However, “legislation which has a disparate impact on the indigent defendant should be subject to a more searching scrutiny than requiring a mere rational relationship.” United States v. Luster, 889 F.2d 1523, 1530 (6th Cir.1989). See also Bullock v. Carter, 405 U.S. 134, 144 , 92 S.Ct. 849, 856 , 31 L.Ed.2d 92 (1972) (state law requiring all candidates for public office to pay large filing fee must be “ ‘closely scrutinized’ and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.”). Moreover, the U.S. Supreme Court has stated that “to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.” Smith v. Bennett, 365 U.S. 708, 709 , 81 S.Ct. 895, 896 , 6 L.Ed.2d 39 (1961) (striking down state law requiring filing fees by indigent state prisoners filing habeas corpus petitions); Bounds v. Smith, 430 U.S. 817, 821, 824 , 97 S.Ct. 1491, 1494, 1496 , 52 L.Ed.2d 72 (1977) (“It is now established beyond doubt that prisoners have a constitutional right of access to the courts.... [Ojur decisions have consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts.”).

Michigan’s objectives in imposing costs against these plaintiffs are twofold: the prevention of frivolous litigation by inmates; and recoupment of monetary losses suffered by appellees. The U.S. Supreme Court, however, has already held that deterring frivolous litigation does not justify imposing costs on the exercise of a constitutional right. Boddie v. Connecticut, 401 *1016 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 (1971). In Boddie , welfare recipients attempting to sue for divorce challenged a state law requiring the prepayment of court fees and costs. The Court held that denying the welfare recipients the right to divorce solely because they lacked the ability to prepay costs was a denial of due process. Id. at 380-81 , 91 S.Ct. at 787-88 . The Court rejected the justification of deterring frivolous lawsuits:

Not only is there no necessary connection between a litigant’s assets and the seriousness of his motives in bringing suit, but it is here beyond present dispute that appellants bring these actions in good faith. Moreover, other alternatives exist to fees and cost requirements as a means for conserving the time of courts and protecting parties from frivolous litigation, such as penalties for false pleadings or affidavits and actions for ... abuse of process, to mention only a few.

Boddie, 401 U.S. at 381-82 , 91 S.Ct. at 787-88 .

In Lindsey v. Normet, 405 U.S. 56 , 92 S.Ct. 862 , 31 L.Ed.2d 36 (1972), tenants being prosecuted under the Oregon Forcible Entry and Wrongful Detainer Statute (FED) were required to post twice the amount of rent expected to accrue during the appeal. The Supreme Court found this double-bond requirement to be a violation of the equal protection clause. The Court found “no reasonable relationship” between the double-bond requirement and any valid state objective:

It cannot be denied that the double-bond requirement heavily burdens the statutory right of an FED defendant to appeal_ The claim that the double-bond requirement operates to screen out frivolous appeals is unpersuasive, for it not only bars nonfrivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond.

* * * * * *

The discrimination against the poor, who could pay their rent pending an appeal but cannot post the double bond, is particularly obvious. For them, as a practical matter, appeal is foreclosed, no matter how meritorious their case may be.

Lindsey v. Normet, 405 U.S. at 77-79, 92 S.Ct. at 876-879 .

As a policy matter, the notion that costs must be imposed against indigent inmates as a docket-control mechanism is a spurious one. District courts are not without means to cope with what the majority terms “the onslaught of prisoner filings of civil rights claims in federal courts[.]” The liberal summary judgment standard employed in federal courts permits district courts to dispose of many section 1983 prisoner suits. Moreover, 28 U.S.C. § 1915 (d) expressly permits the district court to dismiss any in forma pauperis suit “if satisfied that the action is frivolous or malicious.” On appeal, this Circuit has adopted an expedited procedure whereby many prisoners’ suits are disposed of without oral argument or a detailed opinion. Thus, in my view, federal courts are perfectly capable of managing their dockets without resort to such artificial means as ordering an indigent inmate to pay costs.

To assert that prisoners’ section 1983 suits must be “deterred” in order to save courts the bother is an affront to both the intent of Congress in passing section 1983 and the constitutional rights of prisoners. The near-total control which the state must necessarily exercise over inmates makes prisons places of conflict and tension. In such an environment, prisoners’ rights under our Constitution must be protected. Section 1983 allows prisoners a vehicle through which they can receive redress for proven constitutional violations. By adopting mechanisms designed to deter prisoners’ suits, we endanger one of our few windows into the conduct of state and federal prison authorities. At the very least, these suits provide a safety release for pent-up frustrations which germinate inside a prison. If prisoners have a legal outlet for their complaints, they are less likely to resort to illegal means to vent frustrations. In sum, I would find that deterring prisoners’ section 1983 suits is not a valid state objective under equal protection analysis.

*1017 In addition, cost recoupment is not a rational goal because the amount involved — $128.00—does not justify a full-blown appeal in terms of cost effectiveness. The Supreme Court in Boddie also rejected the use of a prepayment of costs requirement “as a mechanism of resource allocation or cost recoupment.” 401 U.S. at 381 , 91 S.Ct. at 788 . As counsel for appellees conceded at oral argument, the expenses associated with the collection of costs against in forma pauperis inmates may exceed the amount ultimately recovered.

The majority concludes that plaintiffs’ equal protection rights have not been violated because “[tjhere is no evidence” that imposition of costs prevents indigent prisoners from filing suit, and because “[tjhere is no indication that defendants pursued this remedy to discriminate against these particular parties[.j” Maj. op. at 1012. In my view, this approach raises the standard of proof to an unattainable level. It is difficult to imagine how these plaintiffs are expected to prove that some prisoners have not filed claims because costs may be imposed. Similarly, evidence of a discriminatory intent on the part of the state of Michigan would be equally difficult to produce.

Requiring this type of proof conceals a veiled contempt for prisoner suits of any stripe. Furthermore, the dismissal of plaintiffs’ equal protection claim for failure to meet the majority’s evidentiary threshold obscures the correct equal protection analysis this court is obliged to employ. “The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 (1985). As discussed above, the state’s interest in imposing costs against indigent appellants, in my view, is so attenuated as to fail even rational basis scrutiny.

The majority also seeks to make its holding more palatable by obscuring the line between in forma pauperis plaintiffs who are prisoners and other in forma pauperis plaintiffs. Remarkably, the majority even implies that indigent prisoners have an advantage over other in forma pauperis plaintiffs in that prisoners have “access to a law library and some minimal assistance in filing suit.” Maj. op. at 1012. The “minimal assistance” provided by prisons to prisoners in filing suits is totally irrelevant to the merits of this equal protection claim. However, since the majority appears to be haunted by the image of the feckless prisoner bombarding our courts with worthless lawsuits, all with the connivance of prison authorities, may I remind the majority that this case initially resulted from restrictions placed on inmate legal correspondence. On a more fundamental level, indigent inmates differ from the overall class of in forma pauperis litigants because the state is under a continuing duty to confine inmates under conditions which pass constitutional muster. Civil rights suits by prisoners also serve an important function in our criminal justice system by drawing attention to unconstitutional conditions. If prisoners do not bring section 1983 suits, then prison officials are essentially unaccountable. One need only consider the example of Clarence Earl Gideon, the in forma pauperis plaintiff in Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963), to realize the crucial role prisoners’ suits play in the protection of constitutional rights.

The United States, with over one million of its citizens behind bars, now has the highest percentage of its population incarcerated of any country in the world. N.Y. Times, Jan. 7, 1991, at 14," col. 1. During the past decade, the nation’s prison population has doubled although the crime rate has dropped 3.5%. Id. If the depressing problems associated with crime are to be addressed through expanding the prison population, then the federal courts must ensure that the ability of prisoners to bring constitutional claims is not hindered.

I recognize that a literal reading of Fed. R.App.P. 39(a) and 28 U.S.C. § 1915 (a) supports the conclusion that, in general, the taxing of costs against unsuccessful appellants is within the district court’s discretion. As applied to inmates proceeding in *1018 forma pauperis, however, I would find that there is no reasonable relationship between the taxing of costs and a valid state objective. Moreover, as a practical matter, imposing costs against indigent inmates would appear to largely be an exercise in futility. See Harris v. Forsyth, 742 F.2d 1277, 1277 (11th Cir.1984) (“No case has been found which has awarded costs under Rule 39(a) against an appellant proceeding in forma pauperis.”).

Nevertheless, the majority remands this case back to the district court for resolution of the issues of ability to pay issue, and garnishment and execution under both federal and state law. Given the impecunious state of these defendants — one has only ninety-four cents in his prison account — the resolution of this issue should not be complicated. A rule barring the collection of costs from indigent prisoners would ensure that no impediments existed to a prisoner bringing to light constitutional violations, and would also effect the goal of resolving prisoners’ claims in a timely fashion and lowering the workload of the courts.