Norton v. Dimazana

• Decision Date: 22 September 1997
• Docket Number: No. 96-40912,96-40912
• Citation: 122 F.3d 286
• Parties: Joseph H. NORTON, Plaintiff-Appellant, v. E.U. DIMAZANA, M.D.; Texas Department of Criminal Justice, Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 286

122 F.3d 286

Joseph H. NORTON, Plaintiff-Appellant, v. E.U. DIMAZANA, M.D.; Texas Department of Criminal Justice,

Defendants-Appellees.

No. 96-40912

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 22, 1997.

Joseph H. Norton, Beeville, TX, pro se.

Sharon Felfe, Asst. Atty. General, Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Texas prisoner Joseph Norton appeals the district court's dismissal as frivolous of his 42 U.S.C. § 1983 complaint alleging that the deliberate indifference of the prison staff to his medical needs violated his Eighth Amendment rights. He also asserts that the fee provisions of the Prison Litigation Reform Act violate his right of access to the courts, that the district court abused its discretion by employing irregular procedures in deciding his case, that the court must provide him a copy of the transcript from his in forma pauperis hearing, and that the district court erred by denying his motion for counsel. Finding no reversible error, we affirm.

I

For years, Norton has experienced serious, painful problems associated with a prolapsed rectum; basically he has suffered from grossly inflamed external hemorrhoids and encountered difficulties in retracting the muscles of his rectum after a bowel movement. In such cases, the muscles of Norton's sphincter are expelled from his anus, and reinserting them is too painful for Norton to accomplish alone. Prison medical staff, on many such occasions, rendered their assistance. They also gave Norton supplies, such as gloves and lubricants, to aid him in performing the job himself. For several years, Norton experienced these and associated problems in prison. Over the two-year span preceding this lawsuit, he saw medical professionals, both inside and outside the prison, at least monthly. Despite constant attention, Norton's condition has improved little.

Norton filed a complaint contending that approximately forty prison officials and prison medical staff members were deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment rights. Among other things, he complains that prison officials should have attempted different diagnostic measures or alternative modes of treatment. He requests damages, injunctive relief, and appointment of counsel. Norton also alleged that, when the district court required him to provide information about his prison trust fund account, prison officials intentionally withheld information about the account. However, the District Clerk received the account information in timely enough fashion to compute and assess the initial, partial filing fee.

The district court conducted a hearing on Norton's motion for leave to proceed in forma pauperis ("i.f.p.") and on his allegation that prison officials intentionally withheld account information. At this hearing, the court also sought to focus the issues asserted by Norton's complaint, and Norton testified at the hearing about the facts he alleged. The court orally granted Norton leave to proceed i.f.p. Then the court called a recess in the hearing, during which it ordered the defense attorney to review Norton's medical records. When the court reconvened, the judge noted that, in his opinion, the prison had not ignored Norton's physical condition. The judge nonetheless ordered the defense attorney to speak with doctors and file a report regarding Norton's medical condition.

The court subsequently issued a written order denying Norton's motion for leave to proceed i.f.p. and assessed a partial filing fee of $24 (twenty percent of the $120 district court filing fee), as required by the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA" or "Act"). See 28 U.S.C. § 1915(b)(1)-(2) (setting out PLRA fee provisions).

The attorney for the defendants subsequently filed the report requested by the district court, with an attached affidavit by one Dr. Owen Murray and a certified copy of Norton's prison medical records. The district court reviewed the report, dismissed Norton's complaint as frivolous under 28 U.S.C. § 1915(e)(2)(b)(1), and denied Norton's motion for appointment of counsel as moot. Norton timely appealed.

In an earlier order, we granted Norton's motion for leave to proceed i.f.p. on appeal; assessed a $40 initial, partial filing fee for the appeal; ordered Norton to pay the remainder of the $105 filing fee in installments pursuant to the PLRA; and denied Norton's motion for production of a transcript of the i.f.p. hearing in the district court. Norton v. Dimazana, No. 96-40912 (5th Cir. Feb.27, 1997) (unpublished). We now address the merits of Norton's appeal.

II

On appeal, Norton raises five issues: (1) whether the filing fee provisions of the PLRA violate prisoners' right of access to the courts; (2) whether the district court erred in dismissing his section 1983 suit as frivolous; (3) whether the erratic procedure by which the district court denied him i.f.p. status and dismissed his appeal violates Norton's right to due process; (4) whether this court erred in denying his request for a transcript of the i.f.p. hearing; and (5) whether the district court erred in denying his motion for appointment of counsel.

A

Construing his brief liberally, we first address Norton's assertion that the fee provisions of the PLRA deny prisoners constitutionally guaranteed access to the courts. In Bounds v. Smith, the Supreme Court articulated a "fundamental constitutional right of access to the courts[,]" 430 U.S. 817, 828, 97 S.Ct. 1491, 1498 52 L.Ed.2d 72 (1977), which requires prison officials to guarantee prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts. Lewis v. Casey, --- U.S. ----, ----, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996). Although other courts have addressed the issue, see Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir.1997); Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 192, --- L.Ed.2d ---- (1997); Hampton v. Hobbs, 106 F.3d 1281 (6th Cir.1997), the question of whether the PLRA's fee provisions unconstitutionally deny access to the courts is an issue of first impression in this circuit.

Norton does not specify whether he is challenging the district court's assessment of fees for his original suit, for his appeal, or both. He did not challenge the assessment of a partial filing fee in the district court proceeding, and he paid the fee that the court imposed. The district court made no explicit findings regarding the constitutionality of the PLRA fee provisions. We normally review contentions not raised in the district court for plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir.1996) (en banc ). To prevail on plain error review, an appellant must show: (1) that an error occurred; (2) that the error was plain, which means clear or obvious; (3) the plain error affects substantial rights; and (4) refusal to correct the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir.1994) cert. denied, 513 U.S. 1112, 115 S.Ct. 903, 130 L.Ed.2d 786 (1995).

This case is on slightly different footing from the normal failure to assert a claim, since a liberal reading of Norton's brief also presents a challenge to the imposition of fees on appeal. Obviously, Norton could not have challenged the assessment of appellate fees during his district court proceeding. Nevertheless, we find that under either plain error or de novo review, the fee provision does not unconstitutionally deny prisoners access to the courts.

The fee provision of the PLRA provides:

(b)(1) ... [I]f 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.

(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.

28 U.S.C. § 1915(b), as amended by the PLRA. The PLRA provides that prisoners proceeding i.f.p. are responsible for paying the full amount of the filing fee; however, the statute provides that impecunious litigants may pay the fee over time, if necessary. The PLRA also provides that no prisoner shall be denied access to the courts because he or she has insufficient funds to pay the initial, partial filing fee. 28 U.S.C. § 1915(b)(4), as amended by the PLRA ("In 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."). The federal statute, of course, does not affect a prisoner's ability to bring actions in state court or through state administrative proceedings.

"While the precise contours of a prisoner's right of access to the courts remain somewhat obscure, the Supreme Court has not extended this right to encompass more than the ability of an inmate to prepare and transmit a necessary legal document to a court."...