Weaver v. Toombs
| Decision Date | 06 November 1991 |
| Docket Number | No. 90-1012,90-1012 |
| Parties | Ronald WEAVER; Leo McKaye; Morris Martin, Plaintiffs-Appellants, v. Raymond TOOMBS; Robert Brown, Jr.; Donald Mason; Robert Mulvaney; Ted Strassburg, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Joseph J. Dehner (briefed and argued), Frost & Jacobs, Cincinnati, Ohio, for plaintiffs-appellants.
Ronald Weaver, pro se.
Leo McKaye, pro se.
Morris Martin, pro se.
Jason Julian, Asst. Atty. Gen. (briefed and argued), Corrections Div., Lansing, Mich., for defendants-appellees.
Before JONES, Circuit Judge and ENGEL and WELLFORD, Senior Circuit Judges.
Plaintiffs, Ronald Weaver, Leo McKaye, and Morris Martin, prisoners at a Michigan penal facility, Ionia Maximum Correctional Facility (IMCF), instituted a 42 U.S.C. § 1983 action alleging deprivation of various constitutional rights against defendants--three lower officials and the warden of IMCF--as well as the Director of the Department of Corrections. The magistrate granted plaintiffs' motion to proceed in forma pauperis from the outset. After defendants filed a motion for summary judgment, the district court dismissed the case in a written opinion, finding no set of facts upon which relief could be granted to any of the plaintiffs against any defendant. The plaintiffs appealed the district court decision of December 6, 1989, proceeding in forma pauperis, in this court. The judgment was affirmed on October 11, 1990, 915 F.2d 1574. The defendants then made a motion in this court pursuant to 28 U.S.C. § 1915 and Fed.R.App.P. 39(a) for an order taxing costs in the amount of $128 against plaintiffs and allowing the costs to be satisfied by direct resort to plaintiffs' prison accounts. We have appointed counsel for plaintiffs to determine the propriety of the assessment and direct collection of such costs without further court intervention.
Counsel for plaintiffs contends that application of the rule and the statute results in constitutional violations of plaintiffs' rights. The first constitutional claim is that such application under the circumstances "chills the rights of appellants and pauper prisoners similarly situated to enjoy the first amendment right to petition the courts."
Next, plaintiffs contend that assessment and collection of such costs against in forma pauperis plaintiffs deny them equal protection and offends their due process rights under the fifth amendment. In addressing these constitutional claims, we first observe that there are few cases that deal with the constitutionality of assessing costs under Fed.R.App.P. 39(a).
We recently reviewed the question of assessment of costs by the district court against prisoners who had proceeded in forma pauperis in Sales v. Marshall, 873 F.2d 115 (6th Cir.1989). Judge Lively observed in Sales that being permitted to sue initially without paying costs did not insulate the prisoner from a later imposition of costs under 28 U.S.C. § 1915:
The plaintiff's indigency does not prevent the taxation of costs against him. The statute that permits an indigent party to proceed in forma pauperis merely provides that such a person may commence a suit "without prepayment of fees and costs." 28 U.S.C. § 1915(a) (emphasis added). The statute clearly provides for awarding "costs at the conclusion of the suit or action as in other cases." 28 U.S.C. § 1915(e). Adopting this reading of § 1915, several courts of appeals have approved the taxation of costs against indigent civil rights plaintiffs. See Flint v. Haynes, 651 F.2d 970, 972-73 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982); Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir.1984); Lay v. Anderson, 837 F.2d 231, 232-33 (5th Cir.1988). However, when a party claims indigency, this court requires a determination of his or her capacity to pay the costs assessed.
Flint v. Haynes, 651 F.2d 970 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982), involved a similar situation; there the Fourth Circuit permitted the district court to assess costs under § 1915 against in forma pauperis prisoner plaintiffs who had filed 42 U.S.C. § 1983 actions against prison officials.
The use of the word "prepayment" in subsection (a) indicates that Congress did not intend to waive forever the payment of costs, but rather it intended to allow qualified litigants to proceed without having to advance the fees and costs associated with litigation. By permitting the court to enter judgment for costs "as in other cases," subsection (e) evinces a congressional intent that litigants may eventually be liable for costs. It is clear that § 1915 contemplates the postponement of fees and costs for litigants who are granted in forma pauperis status.
Thus, we find a district court is empowered to award costs even when it has previously granted a litigant the benefits of § 1915(a). We reached the same result in Perkins v. Cingliano, 296 F.2d 567, 569 (4th Cir.1961) in which we held "[s]ection 1915(e) is too plain to leave any room for doubt, and completely disposes of the petitioner's contention that costs may not be adjudged against him." Accord, Duhart v. Carlson, 469 F.2d 471 (10th Cir.1972); Pasquarella v. Santos, 416 F.2d 436 (1st Cir.1969); Fletcher v. Young, 222 F.2d 222 (4th Cir.), cert. denied, 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 802 (1955); Moss v. Ward, 434 F.Supp. 69 (S.D.N.Y.1977); Carter v. Telectron, Inc., 452 F.Supp. 939 (S.D.Tex.1976).
Id. at 972-73 (footnote omitted). See also Marks v. Calendine, 80 F.R.D. 24 (N.D.W.Va.1978) ().
The Flint court expressly declined to limit its holding to "exceptional cases where the claim is frivolous, malicious, or utterly without foundation." 651 F.2d at 973. The court made its holding in response to plaintiffs' argument that assessment of costs in such situations would hamper access to the courts, but concluded "when costs are assessed only in extreme or exceptional cases, those persons granted leave to proceed in forma pauperis have virtually 'nothing to lose and everything to gain,' and the purpose of § 1915--equal access for the poor and the rich--is distorted." Id. (emphasis added) (footnote omitted). See also Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga.1972), aff'd per curiam, 480 F.2d 805 (5th Cir.1973). The purpose expressed for the holding in Flint was to "assure that litigants will be required to assess the relative merits and risks of litigation before they proceed." 651 F.2d at 974.
Analogous reasoning was applied in assessing costs against indigent in forma pauperis prisoners in Duhart v. Carlson, 469 F.2d 471 (10th Cir.1972), cert. denied sub nom. Long v. Carlson, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692 (1973). In approving imposition of costs in a proceeding deemed to be frivolous, the court discussed equal treatment and access to courts concluding that neither was persuasive. If a person "able to prepay the cost of an action has no constitutional right of access to the courts to prosecute an action that is frivolous," then neither did an indigent prisoner have such a right; both might have costs of such an action assessed against them. Id. at 478.
Harris v. Forsyth, 742 F.2d 1277 (11th Cir.1984), cited with approval by this court in Sales, adopted the rule expressed in Flint that a district court's assessment of costs against an in forma pauperis plaintiff under § 1915 was within the district court's sound discretion.
We think it is clear, then, that a district court may assess costs against an unsuccessful in forma pauperis litigant whether or not the claim was frivolous or simply unmerited. Sales 1 is in conformity with a number of circuits in this regard. While a constitutional question was not raised in Sales, it construed § 1915 in accord with the plain and logical meaning of its language that costs may be assessed against plaintiffs who did not prepay costs or fees "at the conclusion of the suit or other action as in other cases." 28 U.S.C. § 1915(e). Federal appellate decisions have so interpreted this statute for twenty years, particularly in conjunction with a consideration of such unsuccessful plaintiff's "capacity to pay the costs assessed." Sales, 873 F.2d at 120. We perceive no chilling effect during this period of this construction of the statute (nor since 1989 when Sales was decided) that has slowed the onslaught of prisoner filings of civil rights claims in federal courts without prepayment of costs, with the potential of later assessment upon unsuccessful conclusion of the case.
A constitutional challenge, accordingly, would not lie in our view on the application of § 1915(e) to assessment of costs against a prisoner who proceeded in forma pauperis in district court. We perceive no chilling effect and no basis for a first amendment claim as to this longstanding interpretation and application of § 1915.
The benefit extended under this statute to file suit without prepayment of costs is a privilege, not a right. Carter v. Thomas, 527 F.2d 1332 (5th Cir.1976); Startti v. United States, 415 F.2d 1115 (5th Cir.1969); Williams v. Field, 394 F.2d 329 (9th Cir.1968), cert. denied, 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 (1968). There is no demonstrated limitation upon the first amendment claim presented by plaintiffs under the circumstances of this case on the privilege granted them to proceed in forma pauperis subject to possible later imposition of costs under § 1915. There is no showing whatever that this application of the statute is directed against these plaintiffs to chill their privilege to bring suits and appeals without prepaying costs. 2 The cases cited by plaintiffs such as Boddie v. Connecticut, 401 U.S. 371...
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