Beck v. Symington, CIV.95-1616 PHX RCB.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Citation972 F.Supp. 532
Docket NumberNo. CIV.95-1616 PHX RCB.,CIV.95-1616 PHX RCB.
PartiesRussell BECK, et al., Plaintiffs, v. J. Fife SYMINGTON III, et al., Defendants.
Decision Date12 May 1997

Paul Joseph Gattone, Raquel Avina Abel, Tucson, AZ, for plaintiffs.

Bruce L. Skolnik, Charles R. Pyle, Assistant Attorneys General, Tucson, AZ, for defendants.

ORDER

BROOMFIELD, Chief Judge.

Plaintiffs have filed a class action lawsuit on behalf of all Arizona inmates who have filed, or will file, a lawsuit in state court who have been, or will be, required to pay court fees and costs due solely to their status as inmates confined to correctional facilities operated by the Arizona Department of Corrections. Specifically, plaintiff's challenge the constitutionality of A.R.S. § 12-306(C) and A.R.S. § 12-302(B). Currently before the court is plaintiffs' motion for summary judgment and defendants' cross-motion for summary judgment. Oral argument was heard on May 5, 1997, at which time these matters were taken under advisement. Now, having carefully considered the arguments involved therein, the court rules.

DISCUSSION

In an effort to stem the tide of prisoner litigation, the Arizona state legislature enacted the statutes herein at issue. A.R.S. § 12-302(B)1 provides that, when funds exist, the court shall collect twenty per cent of an inmate's prisoner account as a partial down payment towards the total payment of court fees. Twenty per cent of all subsequent deposits into that account are then withheld until such time as the court fees are paid in full. A.R.S. § 12-306(C)2 provides substantially the same scheme with relation to an inmate's payment of actual court costs.

The effect of these statutes is that inmates can no longer apply for a waiver of court fees and costs; now these costs must be paid in installments until they are paid in full. Unincarcerated individuals who are unable to pay these fees and costs, however, may continue to apply for a waiver pursuant to A.R.S. § 12-302(A) and A.R.S. § 12-306(B).

Plaintiffs argue that this unequal treatment violates their right to equal protection under the federal Constitution. In addition, they argue that these statutes unconstitutionally burden their right of access to the courts. Identical arguments have been made in cases challenging similar provisions of the federal Prison Litigation Reform Act ("PLRA").3 However, both these arguments have recently been rejected by the Fourth and Sixth Circuits, respectively. See Roller v. Gunn, 107 F.3d 227 (4th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281 (6th Cir.1997).

I. Right of Access to the Courts

Although both parties agree that inmates have a fundamental right of access to the courts, see, e.g., Lewis v. Casey, ___ U.S. ___, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), they nevertheless frame this issue quite differently.

Plaintiffs assert that by denying them the ability to receive a waiver of the filing fees and court costs, A.R.S. § 12-302(B) and § 12-306(C) unconstitutionally chill their fundamental right of access to the courts. Accordingly, they argue that this court must examine these statutes using strict scrutiny.

Defendants, however, do not characterize this issue so broadly. Rather, for them the issue is whether A.R.S. § 12-302(B) and § 12-306(C) unconstitutionally burden an inmate's right to file a lawsuit free of charge. However, because there is no such right, fundamental or otherwise, defendants argue that these statutory schemes need only have a rational basis to survive review. The court agrees with defendants' assessment.

While plaintiffs are correct that the right of access to the courts is fundamental, on these facts the court fails to see how this right is burdened by the statutes herein at issue. The touchstone of an inmate's right of access to the courts is that his access be "adequate, effective, and meaningful." Lewis, ___ U.S. at ___, 116 S.Ct. at 2180. This right has never been interpreted to mean that an inmate's access must also be free of charge. See Roller, 107 F.3d at 231; Hampton, 106 F.3d at 1285; Lumbert v. Illinois Dept. of Corrections, 827 F.2d 257, 259 (7th Cir.1987). To the contrary, federal circuit courts throughout the country have consistently held that collecting partial filing fees from inmates who, were they not inmates, might otherwise qualify for a filing fee waiver, does not burden their right of access to the courts.4 See id.

In Lumbert v. Illinois Dept. of Corrections, 827 F.2d 257 (7th Cir.1987), Lumbert argued that the district court's General Order, which required inmates applying for IFP status to partially pay the filing fee in an amount not to exceed 50% of the inmate's average monthly income for the previous six months, unconstitutionally burdened his right of access to the courts. Holding that the Constitution allows "reasonable costs [to] be imposed on persons who want to sue," the Seventh Circuit found that Lumbert's fundamental right to access the courts had not been burdened. Id. at 259-60. In this regard, Judge Posner's compelling reasoning is worthy of extensive quotation:

Litigation is not a free good, and its costs are not limited to those who initiate it. They are borne not only by the plaintiff but by the defendant, by the taxpayer, and by the parties to other lawsuits in the same court, whose cases may be delayed or who may receive less attention from the judges that if the caseload were lighter. If the suit is frivolous the defendant may be able to recover his direct litigation outlays from the plaintiff by an order awarding attorney's fees, entered at the close of the case. But the order can at best cover only a portion of the total social costs of the litigation, and of course it is ineffectual if the plaintiff can't afford to pay the award. Moreover, even if a suit is not frivolous ... it will impose costs on the defendant and the judicial system. We want the putative plaintiff to think about the case and not just file reflexively; having to make even a modest monetary outlay may help focus his thinking.

And just because a plaintiff can't afford to pay the full filing fee, it doesn't follow that his lawsuit is incapable of imposing substantial costs on the defendant and on others. Indeed, the problem of litigation that generates social costs in excess of social benefits is particularly acute with respect to litigation by indigents, since they cannot be deterred from suit by the prospect of having to pay their adversaries' legal expenses should the suit be adjudged frivolous. The problem is even more acute when the indigent plaintiff is a prison inmate, because the costs of a prisoner's time are very low. Lumbert for example has filed more than thirty lawsuits, all as an inmate, since 1980.

Much can be done to control the problem of unwarranted prisoner litigation by careful screening of cases by the district court at the outset. The court did this, by requiring Lumbert to certify that his complaint contained only new claims, not claims rejected in his previous lawsuits. But the role of incentives should not be ignored. It is proper that prisoners be made to think twice — by monetary exactions well within their ability, limited as it is, to pay — about bringing lawsuits that have no significant prospect of obtaining any worthwhile relief. A suit not worth $7.20 to an inmate who could pay this fee is unlikely to be worth the time of the courts. If the inmate thinks that a more worthwhile use of his funds would be to buy peanuts and candy (two of the items that, the record shows, Lumbert has purchased from the prison commissary) than to file a civil right suit, he has demonstrated an implied evaluation of the suit that the district court is entitled to honor.

Id. at 259-60.5

Similarly, in Hampton v. Hobbs, 106 F.3d 1281 (6th Cir.1997), Hampton argued that that portion of the PLRA requiring him to pay the filing fee in installments, rather than granting him IFP status, unconstitutionally burdened his right of access to the courts. In rejecting Hampton's claim, the Sixth Circuit found that the partial payment scheme of the PLRA — which, as this court has already noted, bears more than a coincidental similarity to the statutes herein at issue, see footnote 3, supra — did not deprive Hampton of "adequate, effective, and meaningful access to the courts." Hampton, 106 F.3d at 1284. In the event the inmate cannot pay even the initial partial filing fee, the PLRA does not prevent the inmate from filing suit. See 28 U.S.C. § 1915. Furthermore, the installment fees required of the inmate are slight (only 20% of his proceeding month's income). See id. This, despite the fact that "prisoners are in the custody of the state and have the `essentials of life' provided at government expense." Hampton, 106 F.3d at 1285 (citing Evans v. Croom, 650 F.2d 521, 523 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982) ("A prisoner is assured of the necessities of life, housing, food, clothing and medical care at state expense. His financial needs are thus not similar to those of a person in ordinary life.")). In light of these facts, the court found the burden caused by these fee requirements to be minimal and, consequently, not a hindrance on an inmate's ability to gain adequate, effective, and meaningful access to the courts.

Only six days after Hampton was decided, the Fourth Circuit rejected an identical challenge to the PLRA in Roller v. Gunn, 107 F.3d 227 (4th Cir.1997). As with Hampton, the court noted that indigents do not have a constitutional right to file suit in all cases without the payment of fees. Id. at 231. Indeed, quoting Lumbert, the court held that as a general rule it is constitutional to impose reasonable fees on those persons who wish to sue. Id. at 232.

The court then analyzed the specific partial payment requirements of the PLRA. It found that "[t]...

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1 books & journal articles
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    • Journal of Criminal Law and Criminology No. 2001, September 2001
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