Rodriguez v. Cook

• Decision Date: 03 November 1998
• Docket Number: No. 97-35095,97-35095
• Citation: 169 F.3d 1176
• Parties: 1999 Daily Journal D.A.R. 1861 Jerardo RODRIGUEZ, Plaintiff-Appellant, v. David COOK, Director, Oregon State Penitentiary, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1176

169 F.3d 1176

1999 Daily Journal D.A.R. 1861

Jerardo RODRIGUEZ, Plaintiff-Appellant, v. David COOK, Director, Oregon State Penitentiary, Defendant-Appellee.

No. 97-35095.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 3, 1998. ^*

Decided Feb. 25, 1999.

Jerardo Rodriguez, Salem, Oregon, in pro per for the plaintiff-appellant.

James R. George, Assistant Attorney General, Salem, Oregon, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief Judge, Presiding. D.C. No. CV-96-00809-MRH.

Before: NOONAN, THOMPSON, and TROTT, Circuit Judges.

ORDER

The Opinion filed in this case on December 16, 1998, is hereby WITHDRAWN. A new Opinion of this appeal is filed with this order.

OPINION

TROTT, Circuit Judge:

I. Overview

Jerardo Rodriguez ("Rodriguez") appeals, pro se, the dismissal of his complaint brought under 42 U.S.C. § 1983. Rodriguez's complaint alleges that the Oregon Administrative Rule which limits indigent prisoners to five free postage stamps per month violates his First and Fourteenth Amendment right to meaningful access to the courts. After his complaint was dismissed by the district court, Rodriguez filed this appeal, proceeding in forma pauperis ("IFP"). We raised the issue of whether 28 U.S.C. § 1915(g) (" § 1915(g)" or the "three-strike rule") prevented Rodriguez from proceeding under IFP status. The parties submitted supplemental briefing. We now hold that Rodriguez is ineligible for IFP status and therefore dismiss his appeal without prejudice.

II. Background

On May 22, 1996, Rodriguez filed a complaint against Director David Cook ("Cook") of the Oregon State Penitentiary. Rodriguez alleged that Oregon Administrative Rule 291-131-0015, which limits indigent prison inmates to five free stamps a month, violates his constitutional right to access the courts. ¹ Cook filed a motion to dismiss, which the district court treated as a motion for summary judgment and granted.

After Rodriguez's complaint was dismissed on summary judgment, Rodriguez filed this appeal. Rodriguez proceeded IFP in both the complaint and this appeal. After briefs were filed, we raised the issue of whether Rodriguez was eligible for IFP status. We subsequently requested and received from both parties supplemental briefing on whether Rodriguez is eligible for IFP status. Because we hold that Rodriguez is not eligible for IFP status, we do not address the merits of Rodriguez's appeal and instead dismiss it without prejudice.

III. Discussion

A. Prison Litigation Reform Act

Parties filing actions including appeals to this court are required to pay a filing fee. See 28 U.S.C. § 1913; Fed. R.App. P. 3(e). An action may proceed despite failure to pay the filing fees only if the party is granted IFP status. The Prison Litigation Reform Act, 28 U.S.C. § 1915(g) provides that [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [proceedings in forma pauperis] 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.

The plain language of § 1915(g) denies IFP status to prisoners who have had three or more civil actions dismissed as frivolous, malicious, or because the case fails to state a claim upon which relief can be granted, unless the inmate is in danger of serious physical injury.

B. Rodriguez's Status

We have previously recognized that Rodriguez has had more than three claims dismissed as frivolous. ² See Rodriguez v. Cook, No. 96-36105, 1997 WL 723071, at * 1 (9th Cir.1997) (affirming a district court dismissal under 28 U.S.C. § 1915(g) because "Rodriguez had at least six prior actions dismissed as frivolous"). ³ In this case, Rodriguez does not allege that he is under imminent danger of serious physical injury and is therefore ineligible for IFP status. 28 U.S.C. § 1915(g). However, Rodriguez argues that this appeal should not be dismissed under § 1915(g) because, although he may have had three or more civil cases dismissed as frivolous, he has not had three or more appeals dismissed as frivolous. Rodriguez asks this court to read the three-strike rule to require three or more frivolous appeals before precluding IFP status for appeals. There is no support for this argument. Indeed, the plain language of § 1915(g) precludes IFP status for a "civil action or appeal" if the prisoner has brought three or more "action[s] or appeal[s]." § 1915(g) (emphasis added). Rodriguez has had more than three actions dismissed as frivolous and is therefore denied IFP status for civil actions or appeals. Moreover, Rodriguez's interpretation of § 1915(g) would inhibit its purpose by giving prisoners three frivolous civil actions and three frivolous appeals. We do not believe that Congress intended such a result.

C. Constitutionality of § 1915(g)

In his supplemental briefing, Rodriguez argues that § 1915(g) should not bar his case because § 1915(g) is unconstitutional. Rodriguez argues that § 1915(g) should be held unconstitutional because (1) it violates Fifth Amendment Equal Protection rights, (2) it constitutes an ex post facto law, and (3) it violates separation of powers. We disagree with Rodriguez's argument and hold that § 1915(g) does not violate any of the specified constitutional provisions.

1. Fifth Amendment Due Process/Equal Protection

Rodriguez claims that the three-strike rule violates equal protection by treating indigent prisoners differently than wealthy prisoners. ⁴ Although the Fifth Amendment does not have an equal protection clause, it does contain a due process clause which "prohibits the federal government from engaging in discrimination that is 'so unjustifiable as to be violative of due process.' " Schlesinger v. Ballard, 419 U.S. 498, 500 n. 3, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975) (quoting Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954)). "The guarantee of equal protection under the Fifth Amendment is not a source of substantive rights or liberties, but rather a right to be free from invidious discrimination in statutory classifications and other governmental activity." Harris v. McRae, 448 U.S. 297, 322, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) (citations omitted).

In addressing an equal protection claim, we must first decide the level of scrutiny. We apply a strict scrutiny standard only if the legislation discriminates against a suspect class or infringes upon a fundamental right. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992); Madrid v. Gomez, 150 F.3d 1030, 1040 (9th Cir.1998). Moreover, we presume the classification is constitutional unless it is based upon a suspect classification or impinges upon a fundamental right. Harris, 448 U.S. at 322, 100 S.Ct. 2671.

Initially, we note that indigent prisoners are not a suspect class. See Harris, 448 U.S. at 323, 100 S.Ct. 2671 (indigent persons are not a suspect class); Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir.1998) (prisoners are not a suspect class); Tucker v. Branker, 142 F.3d 1294 (D.C.Cir.1998) (indigent prisoners are not a suspect class).

Additionally, § 1915(g) does not infringe on a prisoner's constitutional right to access the courts. Although the Supreme Court, in Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), held that prisoners have a constitutional right of meaningful access to the courts, a prison system need not provide maximum or even optimal level of access. Lewis v. Casey, 518 U.S. 343, 354-55, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.1990). Other courts have upheld regulations which impose reasonable costs on persons who want to sue. Lumbert v. Illinois Dep't of Corrections, 827 F.2d 257, 259 (7th Cir.1987).

We have not previously addressed whether fee requirements and specifically § 1915(g) violates a prisoner's right to access the courts. Seven circuits have addressed the related issue of whether requiring prisoners to pay fees violates a prisoner's access to the courts. See Tucker v. Branker, 142 F.3d 1294, 1297 (D.C.Cir.1998); Lucien v. DeTella, 141 F.3d 773, (7th Cir.1998); Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir.1997); Norton v. Dimazana, 122 F.3d 286, 289-91 (5th Cir.1997); Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir.1997); Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281, 1284-86 (6th Cir.1997). All seven have held that requiring prisoners to pay a filing fee does not deny a prisoner effective access to the courts. These cases reason that requiring prisoners to make the same financial decisions as non-prisoners before filing a cause of action does not violate equal protection. However, these cases deal with portions of the PLRA which require prisoners to pay filing fees in installments when their inmate accounts contain more than ten dollars. See 28 U.S.C. § 1915(b). Although relevant, these cases are not directly on point.

In fact, only two circuit courts have specifically addressed whether § 1915(g) violates a prisoner's access to the courts. Both courts have found the three strikes rule to be constitutional. In Carson v. Johnson, 112 F.3d 818, 821, (5th Cir.1997), the Fifth Circuit held that the three-strike rule does not violate the Fifth Amendment due process clause because it does not prohibit prisoners from filing a lawsuit, it only denies them IFP status. Likewise, in Rivera v. Allin, 144 F.3d 719, 723-24 (11th Cir.1998), the Eleventh Circuit held that IFP status is a privilege, not a right, and that § 1915(g) does not unconstitutionally burden a prisoner's access to the courts. Significantly, ...