Lyon v. Krol

• Decision Date: 17 October 1997
• Docket Number: 96-3754,Nos. 96-3752,s. 96-3752
• Citation: 127 F.3d 763
• Parties: Everett R. LYON, Plaintiff--Appellee, v. Del Vande KROL; Paul Hedgepeth; James Helling; Rabbi Jacobson; Chavbad Lubavitch IA, Defendants--Appellants, United States of America, Intervenor Defendant. Everett R. LYON, Plaintiff--Appellee, v. Del Vande KROL; Paul Hedgepeth; James Helling; Rabbi Jacobson; Chavbad Lubavitch IA, Defendants, United States of America, Intervenor Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 763

127 F.3d 763

Everett R. LYON, Plaintiff--Appellee, v. Del Vande KROL; Paul Hedgepeth; James Helling; Rabbi

Jacobson; Chavbad Lubavitch IA, Defendants--Appellants,

United States of America, Intervenor Defendant.

Everett R. LYON, Plaintiff--Appellee, v. Del Vande KROL; Paul Hedgepeth; James Helling; Rabbi

Jacobson; Chavbad Lubavitch IA, Defendants,

United States of America, Intervenor Defendant--Appellant.

Nos. 96-3752, 96-3754.

United States Court of Appeals,

Eighth Circuit.

Submitted May 20, 1997.

Decided Oct. 17, 1997.

William A. Hill, Assistant Attorney General, Des Moines, IA, argued (Thomas J. Miller, on the brief), for appellants in 96-3752.

Robert M. Loeb, Washington, DC, argued (Frank W. Hunger, Don C. Nickerson, and Barbara L. Herwig, on the brief), for appellants in 96-3754.

Patrick E. Ingram, Iowa City, IA, argued, for appellee.

Before MURPHY and HEANEY, Circuit Judges, and ROSENBAUM, ¹ District Judge.

MURPHY, Circuit Judge.

The district court dismissed the 42 U.S.C. § 1983 action of Everett R. Lyon, an Iowa prisoner, for failure to pay the filing fee required by § 804(d) of the Prisoner Litigation Reform Act (PLRA), Pub.L. No. 104-134, 110 Stat. 1321, §§ 801-810 (Apr. 26, 1996) (to be codified at 28 U.S.C. § 1915(g)), but on reconsideration it concluded that the section is unconstitutional and reinstated the action with leave for Lyon to request in forma pauperis status. The state defendants filed a petition requesting review of the district court's decision that section 1915(g) violated Lyon's right to equal protection because it deprived him of court access, and their request for interlocutory review was granted.

Lyon brought this action against Iowa prison officials and Chavbad Lubavitch, ² alleging that they prevented him from practicing his religion in violation of 42 U.S.C. § 1983. He requested damages and equitable relief, including permission to participate in Jewish services and community meals and to purchase Kosher food. Lyon had previously filed some twelve other civil actions while in prison, four of which had been dismissed as frivolous. ³ When Lyon filed this complaint in May 1996, he had $138.40 in his prison account and $64.52 in his prison savings account and was receiving $67.20 in prison wages each month. His initial request for in forma pauperis status was denied because he had at least three prior actions which had been dismissed as frivolous and section 1915(g) therefore requires full payment of the filing fee unless the prisoner is in "imminent" physical danger.

After Lyon moved for reconsideration on the basis of constitutional challenges, the United States intervened to uphold the statute. The district court concluded that the statute violated Lyon's equal protection rights in that it burdened his fundamental right to court access and strict scrutiny revealed that the provision was not narrowly tailored to prevent abusive prisoner litigation since it only curbs repeat litigation by prisoners who can not afford the filing fee and does not take into account the varying sentences and circumstances of different prisoners.

The United States and Iowa prison officials argue in response that section 1915(g) does not violate Lyon's equal protection rights. They contend that the district court erred in applying strict scrutiny because the statute does not burden a fundamental right and prisoners and indigents are not suspect classes. They also assert that section 1915(g) is rationally related to the legitimate government interest of preventing abusive litigation.

Congress enacted PLRA with the principal purpose of deterring frivolous prisoner litigation by instituting economic costs for prisoners wishing to file civil claims. See, e.g., H.R. Conf. Rep. No. 104-378, at 166-67 (1995); 141 Cong. Rec. S14626 (daily ed.) (Sept. 29, 1995) (statement of Sen. Dole). The in forma pauperis statute now requires all prisoners to pay court filing fees for civil cases. It differentiates among prisoners on method of payment, however. Prisoners who have not had three prior cases dismissed as frivolous need only pay a percentage of the fee at the outset and the remainder over time, and these litigants will not be barred from pursuing a claim by inability to make the initial required partial payment. 28 U.S.C. § 1915(b)(1)-(4). In contrast, section 1915(g), commonly known as the "three strikes" provision, directs that prisoners who have had three previous civil suits or appeals dismissed as malicious, frivolous, or for failure to state a claim must prepay the entire filing fee. They otherwise cannot proceed on their claim unless they are "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The section states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

Since the enactment of PLRA, a number of circuits have examined the constitutionality of its provisions. They have concluded that its fee requirements do not employ suspect classifications, deprive prisoners of the right to court access, or violate rights to equal protection. See, e.g., Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997) (citations omitted) (section 1915(g)); Hampton v. Hobbs, 106 F.3d 1281, 1286-87 (6th Cir.1997); Roller v. Gunn, 107 F.3d 227, 233-34 (4th Cir.1997) (citations omitted). Several have also concluded that the fee requirements of PLRA do not have an impermissible retroactive effect, e.g., Mitchell v. Farcass, 112 F.3d 1483, 1487 (11th Cir.1997), including where the triggering three dismissals occurred before the passage of the statute. E.g., Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.1996); Green v. Nottingham, 90 F.3d 415, 420 (10th Cir.1996).

In order for Lyon to raise his constitutional challenge to section 1915(g) he must show that he has standing. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The core component of standing is that the "plaintiff must allege personal injury fairly traceable" to the challenged action. Id. at 751, 104 S.Ct at 3324. In the context of alleging an unconstitutional burden on the right of access to court, it is not sufficient for standing to show that court access could be impeded. Rather, a prisoner must show that it actually has been. Lewis v. Casey, --- U.S. ----, ----, 116 S.Ct. 2174, 2179, 135 L.Ed.2d 606 (1996).

Lyon has not shown that the fee requirements imposed by PLRA have deprived him of his access to court. The record shows that Lyon had sufficient funds to pay the filing fee. Reasonable costs may be imposed on persons who want to sue without unconstitutionally burdening the right to court access. Lumbert v. Illinois Dep't of Corrections, 827 F.2d 257, 259 (7th Cir.1987). There is no constitutional requirement that court fees always be waived if a litigant is indigent. See e.g., United States v. Kras, 409 U.S. 434, 450, 93 S.Ct. 631, 640, 34 L.Ed.2d 626 (1973); but see M.L.B. v. S.L.J., --- U.S. ----, ---- - ----, ---- - ----, 117 S.Ct. 555, 560-64, 569-70, 136 L.Ed.2d 473 (summarizing cases where court fees must be waived if they prevent litigants from vindicating basic fundamental rights). At the time Lyon filed his complaint, he had over $180 in his prison accounts and was receiving $67.20 in prison wages each month. This is more than the $120 then required as a filing fee. Lyon has most of his basic necessities provided as a prisoner, and payment of the fee would not have forced him to go without these essentials. He would still have had over $60 remaining after paying the fee; that amount and his monthly wages would have been available to purchase other necessary incidentals. Cf. Myers v. Hundley, 101 F.3d 542, 544 (8th Cir.1996).

Section 1915(g) does not prohibit prisoners from pursuing legal claims if they have had "three strikes" or three prior dismissals. It only limits their ability to proceed in forma pauperis. Lyon is thus free to pursue his action if he pays the required fees, and section 1915(g) has not caused an actual injury to him because he was not without the necessary resources to bring his claim to court. ⁴

Since Lyon has not shown that section 1915(g) has caused an actual injury, he does not have standing to assert that this deprivation violates his right to equal protection. ⁵ We therefore do not have jurisdiction to consider the constitutional issues raised, and the appeal must be dismissed.

The interlocutory appeal is dismissed, and the case is remanded so that the district court may set a time by which Lyon must pay the filing fee or have his underlying first amendment claim dismissed.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. I would affirm the district court's well-reasoned opinion holding unconstitutional section 1915(g) of the PLRA, which requires a prisoner bringing a civil claim to pay a filing fee regardless of his ability to qualify for in forma pauperis status. As the majority points out, the district court based its holding on the fact that section 1915(g) violates Lyon's equal protection rights by burdening Lyon's fundamental right of access to the courts. There is no question that the provision does so. The purported purpose of section 1915(g) is to curtail the number of frivolous suits brought by prisoners by requiring that prisoners who have had three or more prior claims dismissed must pay court filing fees whether or not the prisoner qualifies for in forma pauperis status. Nonprisoners do not face such a requirement, nor does the provision differentiate between the sentences...