Olivares v. Marshall

• Decision Date: 15 June 1995
• Docket Number: 94-15526,Nos. 94-15518,s. 94-15518
• Citation: 59 F.3d 109
• Parties: 95 Daily Journal D.A.R. 8349 Steve OLIVARES, Plaintiff-Appellant, v. Charles D. MARSHALL, Warden, J. Hixon and D. Helsel, Defendants-Appellees. James F. STEHOUWER, Plaintiff-Appellant, v. Michael HENNESSEY, Sheriff; Sergeant Nelson; Deputy Gee; Deputy Antram; Deputy Williams; and Internal Affairs, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 109

59 F.3d 109

95 Daily Journal D.A.R. 8349

Steve OLIVARES, Plaintiff-Appellant, v. Charles D. MARSHALL, Warden, J. Hixon and D. Helsel,

Defendants-Appellees.

James F. STEHOUWER, Plaintiff-Appellant, v. Michael HENNESSEY, Sheriff; Sergeant Nelson; Deputy Gee;

Deputy Antram; Deputy Williams; and Internal

Affairs, Defendants-Appellees.

Nos. 94-15518, 94-15526.

United States Court of Appeals Ninth Circuit.

Submitted June 15, 1995. ^*

Decided June 26, 1995.

Sanford Jay Rosen, Rosen, Bien & Asaro, San Francisco, CA, for plaintiff-appellant.

James M. Humes, Deputy Atty. Gen., San Francisco, CA, for appellees-amicus Marshall, et al.; Matthew D. Davis, Deputy City Atty., San Francisco, CA, for defendants-appellees Hennessey, et al.

Appeals from the United States District Court for the Northern District of California.

Before: GOODWIN, FARRIS and KLEINFELD, Circuit Judges.

GOODWIN, Circuit Judge:

James Stehouwer and Steve Olivares submitted to the district court unrelated pro se civil rights complaints under 42 U.S.C. Sec. 1983. Both moved the court for permission to proceed in forma pauperis, without prepayment of filing fees, under 28 U.S.C. Sec. 1915(a) which permits a district court to waive the customary $120 filing fee upon a finding that the plaintiff is unable to pay. In a joint order, the district court found that both plaintiffs were unable to pay the entire fee, but each could pay a partial fee. The district court accordingly ordered each plaintiff to pay a partial filing fee tailored to his financial circumstances. When the plaintiffs failed to pay the partial fees set by the court, the district court dismissed the complaints without prejudice. Olivares and Stehouwer appeal these final judgments of the district court.

I. The Authority of the District Court to Set Partial Fees

Appellants' chief contention is that while 28 U.S.C. Sec. 1915 permits district courts to require full fees or to waive all fees, it does not grant district courts the authority to require a partial filing fee. We take this opportunity to make the apparent explicit: Courts have discretion to impose partial filing fees under the in forma pauperis statute.

Our decision in Alexander v. Carson Adult High School, 9 F.3d 1448 (9th Cir.1993) settled the matter. In that case, we held that "[w]e review a district court's decision to impose a partial filing fee pursuant to the in forma pauperis statute, 28 U.S.C. Sec. 1915, for an abuse of discretion." Id. at 1449. We went on to articulate factors that a court may consider in determining the ability of an in forma pauperis plaintiff to pay a partial filing fee. Id. This decision necessarily recognized a district court's power to require partial fees. Courts do not articulate standards of review and tests for the exercise of discretion that the law prohibits.

Although it is not axiomatic, the greater power to waive all fees includes the lesser power to set partial fees. Requiring the payment of fees according to a plaintiff's ability to pay serves the in forma pauperis statute's goal of granting equal access to the courts regardless of economic status. At the same time, requiring a partial payment within a plaintiff's ability to pay serves the dual aims of defraying some of the judicial costs of litigation and screening out frivolous claims.

To date, at least nine of our sister circuits have ruled on this issue, and all have concluded that imposing partial filing fees is an appropriate exercise of authority under 28 U.S.C. Sec. 1915. See, In re Stump, 449 F.2d 1297, 1298 (1st Cir.1971); In re Epps, 888 F.2d 964, 967 (2d Cir.1989); Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir.1983); Evans v. Croom, 650 F.2d 521, 522-25 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982); Smith v. Martinez, 706 F.2d 572, 574 (5th Cir.1983); Clark v. Ocean Brand Tuna, 974 F.2d 48, 50 (6th Cir.1992); Bryan v. Johnson, 821 F.2d 455, 458 (7th Cir.1987); In re Williamson, 786 F.2d 1336, 1339-41 (8th Cir.1986); and Collier v. Tatum, 722 F.2d 653, 655 (11th Cir.1983).

II. The Propriety of the Partial Fees Imposed

With the authority of the district court to set partial fees settled, we now turn to the propriety of the partial fees imposed in these particular cases.

Stehouwer, who was a prisoner at the time he moved to proceed in forma pauperis, qualified as a pauper. After reviewing Stehouwer's affidavit and financial records and holding a show cause hearing, the district court found that Stehouwer earned about $14.61 a month, had a balance of $14.61 in his prison trust fund account, and received $110 dollars from family members in the six month period preceding the submission of his complaint. The district court imposed a filing fee of $20.00 payable in two installments over a period of 90 days. On these facts, the first installment would leave Stehouwer $4.61 for the next month's commissary shopping and the second installment would leave him another $4.61. After the appeal was commenced but before it was submitted, Stehouwer was paroled and filed an affidavit to the effect that he was unemployed, ill, living off the kindness of his relatives and from selling his clothing. Requiring him to pay even $20.00 in two installments is troublesome. Two other circuits have examined this problem and have suggested that the filing fee, while discretionary, should not take the prisoner's last dollar. See In re Epps, 888 F.2d 964 (2d Cir.1989); Bullock v. Suomela, 710 F.2d 102 (3rd Cir.1983). We agree, and vacate the dismissal of Stehouwer's action and remand for the district court to review his present economic situation and fit a fee to the economic facts if Stehouwer is still...