351 F.3d 1324 (10th Cir. 2003), 02-1540, Cosby v. Meadors

Docket Nº:02-1540
Citation:351 F.3d 1324
Party Name:Cosby v. Meadors
Case Date:December 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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351 F.3d 1324 (10th Cir. 2003)

Gregory D. Cosmo COSBY, Plaintiff-Appellant,


N.R. MEADORS, Associate Warden Custody (USP); B. Valle, Sen. Officer; Rick Nuci, Sen. Officer; Donald Durning; Butch Faoro; Mario Piluso, Defendants-Appellees.

No. 02-1540.

United States Court of Appeals, Tenth Circuit

December 10, 2003

Page 1325

Submitted on the briefs:[*] Gregory D. Cosmo Cosby, pro se.

R. Joseph Sher, Senior Trial Counsel, Constitutional Torts Staff, Paul Michael Brown, Senior Trial Attorney, Constitutional Torts Staff, Torts Branch, Civil Division, Washington, DC, for Defendants-Appellees.

John R. Mann of Kennedy & Christopher, P.C., Denver, Colorado, for Defendant-Appellee Ronald Nuci.

Before TACHA, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ, Circuit Judge.

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HARTZ, Circuit Judge.

Plaintiff Gregory D. Cosmo Cosby, a federal inmate appearing pro se, appeals the dismissal of his federal civil rights complaint for failure to comply with the district court's orders requiring him to make monthly partial payments of his filing fee or to show cause why he could not make the payments. We review for abuse of discretion a district court's dismissal for failure to comply with a court order. See Mobley v. McCormick, 40 F.3d 337, 340, 341 (10th Cir. 1994). Because we conclude that the district court did not abuse its discretion, we affirm.

The issue here is not money per se. The amounts at stake, as will become apparent as we recount the factual background, might not seem significant to some outside prison walls. The issue, rather, is respect for the judicial process and the law. Plaintiff must lose his right to pursue his claim in court because of his utter unwillingness to make the minor sacrifices required by statute and by the repeated directives of a patient district court. In disposing of this appeal, we have occasion to set forth the duties of indigent prisoners with respect to the payment of filing fees.


Under the 1996 Prison Litigation Reform Act (PLRA), indigent prisoners need not pay federal court filing fees in full prior to initiating litigation or an appeal. See 28 U.S.C. § 1915(b)(1). Ultimately, however, "the prisoner shall be required to pay the full amount of a filing fee." Id. The amount of the initial payment depends on the average deposits to and balance in the prisoner's inmate account. The statute provides:

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.


The remainder of the filing fee is to be paid in monthly installments. The amount of each installment is prescribed by § 1915(b)(2):

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.

Although the matter is not without doubt, we interpret the word "income" in this provision to include all deposits to the prisoner's inmate account, whether the deposit be earned income, a gift, or otherwise. The word "income" can be used to denote gross receipts. See Lukhard v. Reed, 481 U.S. 368, 375, 107 S.Ct. 1807, 95 L.Ed.2d 328 (1987) ("[G]eneral and legal sources ... commonly define 'income' to mean 'any money that comes in[.]' "). And this interpretation of the word produces consistency between § 1915(b)(2) (which provides that monthly payments equal 20% of the prior month's income) and § 1915(b)(1) (which provides that the initial payment be 20% of the greater of average monthly deposits or average monthly balances, regardless of the source of deposits). We see no reason why Congress would include, say, gifts for the purpose

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of calculating the initial payment while exempting that source for the purpose of calculating monthly payments. Indeed, given Congress's declaration that "the prisoner shall be required to pay the full amount of a filing fee," we would expect it to proceed as any creditor and look to all deposits to the prisoner's account as potential sources for the payment. Morever, we question whether Congress would have expected prison officials to investigate whether a deposit to an inmate account was a gift from a parent, book royalties, or deferred payments on a narcotics transaction. See Lucien v. DeTella, 141 F.3d 773, 776 (7th Cir. 1998) ("income" in § 1915(b)(2) refers to all deposits to prisoner's account).

These fee provisions are intended " 'to reduce frivolous prisoner litigation by making all prisoners seeking to bring lawsuits or appeals feel the deterrent effect created by liability for filing fees.' " In re Smith, 114 F.3d 1247, 1249 (D.C. Cir. 1997) (quoting Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir. 1996)). "The PLRA is designed to require the prisoner to bear some marginal cost for each legal activity." Newlin v. Helman, 123 F.3d 429, 436 (7th Cir. 1997), overruled on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000).

The obligation to pay is not unlimited. The PLRA does not prohibit a prisoner from bringing a civil action or appealing a civil judgment when he has no assets or means to pay an initial partial filing fee. See 28 U.S.C. § 1915(b)(4). Also, as noted above, when the prisoner does receive money, only 20% can be applied to a particular filing fee. And

[t]o further ensure that prisoners need not totally deprive themselves of those small amenities of life which they are permitted to acquire in a prison ... beyond the food, clothing, and lodging already furnished by the state, section 1915 allows payment to be taken from the prisoner's account only where the amount in the account exceeds $10.

Shabazz v. Parsons, 127 F.3d 1246, 1248 (10th Cir. 1997) (internal quotation marks omitted).

But when a prisoner has sufficient income to pay a monthly partial filing fee and instead spends his money on amenities at the prison canteen, he cannot be excused for failing to make the required partial payments. If a prisoner has the means to pay, failure to pay the filing fee required by § 1915(b) may result in the dismissal of a prisoner's civil action. See In re Smith, 114 F.3d at 1251; Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997). In addition, if a court order requires partial payments, the Federal Rules of Civil Procedure allow a district court to dismiss the action for failure to comply with the order. See Fed.R.Civ.P. 41(b).


A. The Initial Order

When Plaintiff filed his complaint on February 7, 2000, the district court granted him leave to proceed without prepayment of fees and without payment of an initial partial filing fee because there were insufficient funds in his inmate account. In accordance with § 1915(b)(2), the district court entered an order stating:

Plaintiff remains obligated to pay the full amount of the required $150.00 filing fee pursuant to § 1915(b)(1) regardless of the outcome of this action. It is

FURTHER ORDERED that, until the $150.00 filing fee is paid in full, [Plaintiff] shall make monthly payments to the court of twenty (20) percent of the preceding month's income credited to his account or show cause why he has no assets and no means by which to make

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each monthly payment. [Plaintiff] is directed to make the necessary arrangements to have the monthly payments identified by the civil action number on this order. In order to show cause, the plaintiff must file a current certified copy of his trust fund account statement. It is

FURTHER ORDERED that if [Plaintiff] fails to have the appropriate monthly payment sent to the clerk of the court each month or to show cause each month as directed above why he has no assets and no means by which to make the monthly payment, the Prisoner's Civil Rights Complaint may be dismissed without prejudice and without further notice.

R. Vol. I, Doc. 11, at 2-3.

B. Monthly Payments

The following discussion details Plaintiff's repeated failure to remit the required payments when he had funds available, even while he made discretionary purchases that drained his account. In summary, we will see that during the course of this litigation Plaintiff received income of $288.83, but, even after several court orders directing him to make the required payments, he paid the district court a total of only $7.14.

At the outset Plaintiff made no monthly payments for several months, but he justified this failure to pay by submitting monthly statements of his inmate account showing only $5.00 in income during this period and no balance over $10.00. In November and December 2000, however, he neither made a payment nor submitted an account statement. On January 25, 2001, the district court issued an order to show cause, giving him fifteen days to make the required monthly payment or explain why he was unable to pay. Id., Doc. 60. The order expressly warned Plaintiff that failure to comply with the order could result in the dismissal of his action without further notice. Id. at 2.

Plaintiff mailed his response to the show cause order on January 31, 2001. He attached his past-due account statements, which revealed that he had received a money order deposit of $20.00 on November 20, 2000, and a check deposit of $12.28 on December...

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