Roller v. Gunn

Decision Date19 February 1997
Docket NumberNo. 96-6992,96-6992
PartiesGary Lee ROLLER, Plaintiff-Appellant, v. William E. GUNN, Executive Director of the South Carolina Department of Probation, Parole and Pardon Services; South Carolina Department of Probation, Parole and Pardon Services, Defendants-Appellees, United States Of America, Intervenor.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Rochelle Romosca McKim, W. Gaston Fairey, Fairey, Parise & Mills, P.A., Columbia, SC, for Appellant. Carl Norman Lundberg, Chief Legal Counsel, South Carolina Department of Probation, Parole And Pardon Services, Columbia, SC, for Appellees. Richard Alan Olderman, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, for Intervenor. ON BRIEF: Charles Molony Condon, Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, Reginald I. Lloyd, Assistant Attorney General, Office of the Attorney General, Columbia, SC, for Appellees. Frank W. Hunger, Assistant Attorney General, J. Rene Josey, United States Attorney, Barbara L. Herwig, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, for Intervenor.

Before WILKINSON, Chief Judge, and RUSSELL and HALL, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge RUSSELL joined. Judge HALL wrote an opinion concurring in part and dissenting in part.


WILKINSON, Chief Judge:

Appellant, Gary Lee Roller, challenges the constitutionality of section 804 of the Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321, §§ 801-810 (Apr. 26, 1996), which requires prisoners proceeding in forma pauperis to pay a partial filing fee before filing a lawsuit or proceeding with an appeal. We think the Act represents a legitimate exercise of Congress' power to reduce frivolous lawsuits in the federal courts. We reject Roller's contentions that the filing fee requirement imposes an unconstitutional barrier on access to the courts or that it violates the Constitution's equal protection guarantee.

Roller also appeals the district court's conclusion that the retrospective application of amendments to South Carolina's parole procedures does not constitute a violation of the Ex Post Facto Clause. The Supreme Court's recent decision in California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), permits the states to adopt changes to their parole procedures which produce no more than a speculative possibility of affecting a prisoner's punishment. Under Morales, the changes to South Carolina's parole procedures do not violate the Ex Post Facto Clause. Accordingly, we affirm the judgment of the district court.


In early 1983, Gary Lee Roller was convicted of voluntary manslaughter and grand larceny in South Carolina state court for crimes committed on December 13, 1982. On March 25, 1983, he was sentenced to thirty-five years imprisonment.

In December 1990, Roller filed a complaint under 42 U.S.C. § 1983 challenging the application of amendments to the parole laws of South Carolina on ex post facto grounds. The amendments, passed in 1986, modified South Carolina Code section 24-21-645 so that a prisoner convicted of committing a violent crime would only have his case reviewed every two years after an initial negative parole determination rather than every year. Additionally, the amendments required a two-thirds majority of the parole board to authorize parole for violent offenders rather than a simple majority. By its terms, the amended version of section 24-21-645 applied to Roller despite the fact that he had committed his crimes and been convicted prior to its enactment.

The district court entered judgment for the South Carolina Department of Probation, Parole, and Pardon Services, but was reversed by this court in Roller v. Cavanaugh, 984 F.2d 120 (4th Cir.1993). The case was remanded with instructions to grant declaratory relief in favor of Roller.

In April 1995, the Supreme Court decided California Dept. Of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Morales held that the retroactive application of a California statute which changed the frequency of parole hearings for multiple murderers from every year to once every three years did not violate the Ex Post Facto Clause. In January 1996, South Carolina, arguing that Morales represented a significant change in the law, moved under Fed.R.Civ.P. 60(b) for modification of the court's order declaring the retrospective application of the 1986 amendments to section 24-21-645 unconstitutional. On June 5, 1996, the district court concluded on the basis of Morales that "the application of § 24-21-645 to Roller does not violate the Ex Post Facto Clause." Roller v. Gunn, 932 F.Supp. 729, 730 (D.S.C.1996). Roller then filed the instant appeal.

On appeal, Roller moved this court to declare the filing fee requirement of the PLRA and a similar requirement providing for the payment of costs unconstitutional. Roller has paid the full amount of the $105 filing fee under protest pending our decision.


We turn initially to Roller's contentions that the filing fee provisions of the PLRA constitute an unconstitutional barrier to access to the courts and violate the constitutional guarantee of equal protection.

Congress has long regulated the access of indigent litigants to the federal judicial system. The first federal in forma pauperis ("IFP") statute was enacted in 1892. Act of July 20, 1892, ch. 209, 27 Stat. 252 (codified as amended at 28 U.S.C. § 1915). Concerned that citizens were being denied their day in court, Congress proposed to "open the United States courts to a class of American citizens who have rights to be adjudicated, but are now excluded practically for want of sufficient money or property to enter the courts under their rules." H.R.Rep. No. 1709, 52d Cong., 1st Sess. 1 (1892). Despite Congress' admonition that "[t]he proposed law will not admit of vexatious litigation," id., the statute's noble purpose has been threatened by a flood of meritless lawsuits.

Unsurprisingly, prisoners proved responsible for much of this litigation. In some instances, individual prisoners have filed an astonishing number of frivolous lawsuits. See, e.g., Shieh v. Kakita, --- U.S. ----, 116 S.Ct. 1311, 134 L.Ed.2d 464 (1996) (prisoner prospectively barred from filing petitions for certiorari in forma pauperis after filing 10 frivolous petitions in less than three years); In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 996, 103 L.Ed.2d 158 (1989) (prisoner prospectively barred from using in forma pauperis procedures to file extraordinary writs after 73 frivolous filings between 1971 and 1989); In re Green, 669 F.2d 779, 781 (D.C.Cir.1981) (prisoner filed "between 600 and 700 complaints in the federal and state courts"). In 1995, prisoners brought over 25% of the civil cases filed in the federal district courts. Administrative Office of the United States Courts, 1995 Federal Court Management Statistics 167. In this circuit alone, IFP filings accounted for almost half of the court's 1995 caseload, Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 954 n. 2 (4th Cir.1995) (en banc), and prisoners were responsible for 75% of those filings. Id. at 953-54 n. 1.

Congress recognized that the explosion of IFP litigation presents problems for our legal system. It was obviously concerned that the limited resources of the federal judiciary not be expended on cases whose frivolity was manifest, but whose sheer numerosity represented a formidable and time consuming task. As the Supreme Court has noted, "[t]he goal of fairly dispensing justice ... is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests." In re Sindram, 498 U.S. 177, 179-80, 111 S.Ct. 596, 597, 112 L.Ed.2d 599 (1991).

Finding that the proliferation of prisoner litigation was due significantly to the lack of economic disincentives to filing meritless cases, Congress passed the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321, §§ 801-810 (Apr. 26, 1996). The goal of the PLRA amendments to the in forma pauperis statute, 28 U.S.C. § 1915, is straightforward:

Section 2 will require prisoners to pay a very small share of the large burden they place on the Federal judicial system by paying a small filing fee upon commencement of lawsuits. In doing so, the provision will deter frivolous inmate lawsuits. The modest monetary outlay will force prisoners to think twice about the case and not just file reflexively. Prisoners will have to make the same decision that lawabiding Americans must make: Is the lawsuit worth the price?

141 Cong. Rec. at S7526 (May 25, 1995) (statement of Senator Kyl) (citation omitted).

The PLRA thus makes several changes to 28 U.S.C. § 1915. The Act requires prisoners seeking IFP status to execute an affidavit attesting to their impoverishment and to file with the court a certified copy of their prison trust account. 28 U.S.C. § 1915 (a)(1) & (2). Moreover, under the PLRA amendments,

if 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...

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