Nicholas v. Tucker, s. 1448

Citation114 F.3d 17
Decision Date27 May 1997
Docket Number1693,Nos. 1448,D,s. 1448
PartiesJason B. NICHOLAS, Plaintiff-Appellant, v. Edward TUCKER, Deputy Superintendent for Programs, Woodbourne Correctional Facility; Clayton Cook, Corrections Officer, Woodbourne Correctional Facility; Tammi Malone, Keyboard Specialist, Woodbourne Correctional Facility; New York State Department Of Correctional Services; Beatty, Lieutenant, Woodbourne Correctional Facility; Julkerski, Sergeant, Woodbourne Correctional Facility; Donald Selsky, Director, Special Housing Unit/Inmate Disciplinary Program, New York State Department of Correctional Facility, Defendants-Appellees. Jason B. NICHOLAS, on behalf of all others similarly situated, Plaintiff-Appellant, v. T.J. MILLER, Acting Superintendent/Deputy Superintendent for Programs, Woodbourne Correctional Facility; Robert Hanslmaier, Superintendent, Woodbourne Correctional Facility, New York State Department of Correctional Services, Defendants-Appellees. ockets 96-2470, 96-2528.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Gordon Schnell, New York City (Douglas F. Broder, Coudert Brothers, New York City, of counsel), for Plaintiff-Appellant.

Martin A. Hotvet, Assistant Attorney General, Albany, New York (Dennis C. Vacco, Attorney General of the State of New York, Peter G. Crary, Assistant Attorney General, Albany, New York, of counsel), for Defendants-Appellees.

Steven M. Haber, Assistant U.S. Attorney, New York City (Mary Jo White, U.S. Attorney for the Southern District of New York, Marla Alhadeff, Assistant U.S. Attorney, New York City, of counsel), for Intervenor United States of America.

Before: VAN GRAAFEILAND, WALKER and LEVAL, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Jason B. Nicholas, an indigent prisoner currently serving a New York State court sentence of 6 1/3 to 19 years' imprisonment, petitions this Court for relief by way of mandamus, injunction or declaratory judgment invalidating the filing fee provisions of the Prison Litigation Reform Act. 28 U.S.C. § 1915. Because appeals in the two above-entitled actions presently are pending, we have jurisdiction to consider the petition. We thus have authority pursuant to 28 U.S.C. § 2201 to declare whether the filing fee provisions are constitutional. See Seguros Tepeyac, S.A., Compania Mexicana de Seguros Generales v. Bostrom, 360 F.2d 154, 155 (5th Cir.1966)(per curiam). For the reasons that follow, we declare and adjudge that the filing fee provisions at issue satisfy constitutional standards and are valid and enforceable.

In October 1995, Nicholas, a self-proclaimed "active pro-se litigant", brought the above-entitled actions in forma pauperis in the United States District Court for the Southern District of New York. In Nicholas v. Tucker, et al., Nicholas alleged constitutional violations arising out of his discipline for improper use of state property. On February 26, 1996, the district court denied Nicholas's motion for a preliminary injunction and on April 5, 1996, he appealed to this Court. In Nicholas v. Miller, et al., Nicholas In due course, Nicholas was informed by court personnel that unless he complied with the requirements of section 1915, his appeals would be dismissed. Nicholas complied with the statutory requirements and filed the instant petition.

                alleged that his constitutional rights were violated when the defendants denied his request to form a "Prisoners' Legal Defense Center."   On June 10, 1996, the district court ordered the complaint dismissed and a judgment of dismissal was entered.  On June 23, 1996, Nicholas filed a notice of appeal
                
DISCUSSION

Congress adopted the Prison Litigation Reform Act with the principal purpose of deterring frivolous prisoner lawsuits and appeals. See Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir.1996). Congress concluded that one means of achieving this result would be to require prisoners seeking in forma pauperis appellate status to pay, to the extent they are financially able, the normal filing fee that is imposed in a civil action or appeal (here $105 for each appeal). The challenged provisions of the Act require would-be in forma pauperis appellants to submit a certified copy of their prison trust account to the court and pay the filing fee by means of a modest deposit and subsequent monthly installments. Although the prisoner remains responsible for payment of the entire fee, the initial and installment payments are not set in fixed amounts, but rather are to be calculated on a case-by-case basis in direct relation to the prisoner's ability to pay. The statute provides:

if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, 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.

28 U.S.C. § 1915(b)(1). After the initial partial filing fee has been collected, the prisoner must make monthly payments in the amount of 20% of the income credited to his account in the preceding month, so long as the account contains more than $10, until the entire fee is paid. 28 U.S.C. § 1915(b)(2). A prisoner who is unable to pay the fee still may maintain his suit or appeal, however, because the Act provides that "[i]n 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." 28 U.S.C. § 1915(b)(4). Finally, the Act does not affect the prisoner's right to bring an action in state court or to seek redress through state administrative grievance procedures.

To date, three of our sister Courts of Appeals have rejected constitutional challenges to the Act's filing fee provisions. See Mitchell v. Farcass, 112 F.3d 1483, 1487 (11th Cir. 1997) (the Act does not violate Equal Protection Clause); Roller v. Gunn, 107 F.3d 227 (4th Cir.1997) (the Act does not unconstitutionally bar access to courts and does not violate indigent prisoners' equal protection rights); Hampton v. Hobbs, 106 F.3d 1281 (6th Cir.1997) (fee requirements do not violate indigent prisoners' right of access to courts or rights under the First Amendment, Due Process Clause, Equal Protection Clause or Double Jeopardy Clause). Nicholas is not deterred.

Nicholas first contends that the Act violates indigent prisoners' equal protection rights because it requires them, unlike non-incarcerated indigents, to pre-pay court filing fees. We disagree. Although, unlike the Fourteenth Amendment, the Fifth does not contain an equal protection clause, "it does forbid discrimination that is 'so unjustifiable as to be violative of due process.' " Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1189, 12 L.Ed.2d 218 (1964) (quoting Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954)). The standards for analyzing equal protection claims under either amendment are identical. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228, 43 L.Ed.2d 514 (1975).

It is by now well-established that the constitutional guarantee of equal protection does not forbid all classifications, but rather "keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1 (1992); see Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir.1996) (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)). Accordingly, unless the filing fee requirements burden a fundamental right or draw distinctions based on a suspect classification, we will uphold their validity if they are rationally related to a legitimate governmental interest. See City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). As discussed below, the filing fee provisions of the Act do not unconstitutionally impinge on indigent inmates' right of meaningful access to the courts or right to petition the courts for redress. Furthermore, inmates are not a suspect class such that a more exacting scrutiny is required. See Allen, supra, 100 F.3d at 260 n. 1 (rejecting inmates' claim that prison disciplinary surcharges violated the Equal Protection Clause because, unlike other mandatory state surcharges, they did not provide a hardship waiver for indigent inmates); Zipkin v. Heckler, 790 F.2d 16, 18 (2d Cir.1986) (rejecting inmate's equal protection challenge to statute suspending Social Security benefits during period of incarceration). The courts reason that prisoners are not situated similarly to non-incarcerated persons since their rights "are necessarily limited because of their incarceration, [and] all their essential needs, such as food, shelter, clothing and medical care are provided by the state." Allen, 100 F.3d at 260-61; see also Zipkin, 790 F.2d at 18 ("[P]risoners, as a group, do not have the need for a continuing source of income that nonprisoners typically may have."). In In re Epps, 888 F.2d 964 (2d Cir.1989), this Court upheld a district court rule requiring prisoners but not other in forma pauperis litigants to pay partial filing fees, recognizing that "what constitutes the 'necessities of life' that must be purchased is obviously different for prisoners, most of whose necessities are paid for by the jurisdiction that incarcerates them." Id. at 967.

The Act easily passes the rational basis test. The problem of frivolous prisoner lawsuits has been well-documented and need not be repeated here. Suffice it to say that federal courts spend an inordinate amount...

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