Torres v. O'quinn

Decision Date13 July 2010
Docket NumberNo. 06-7770,07-7340.,06-7770
Citation612 F.3d 237
PartiesDon Juan TORRES, Plaintif-Appellant,v.R. O'QUINN; D. Tate; D. Muncy, Defendants-Appellees.Don Juan Torres, a/k/a Donald Hautz, Plaintif-Appellant,v.Gene Johnson; Larry Huffman; Tracy Ray; John Jabe; R. Rowlett; M. Mullins, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit


ARGUED: Tonya T. Robinson, Wilmerhale, Washington, D.C., for Appellant. Mark R. Davis, Office of the Attorney General Of Virginia, Richmond, Virginia, for Appellees. ON BRIEF: June Shih, Wilmerhale, Washington, D.C., for Appellant. William C. Mims, Attorney General, Richmond, Virginia, for Appellees.

Before NIEMEYER, GREGORY, and DAVIS, Circuit Judges.

Judge DAVIS authored a Supplemental Opinion Denying Appellant's Post Judgment Motion for Partial Refund of Filing Fees in which Judge GREGORY joined. Judge NIEMEYER wrote a dissenting opinion.


DAVIS, Circuit Judge:

Appellant Don Juan Torres, a/k/a Donald Hautz (Torres), while an inmate at a Virginia prison, filed two civil actions against prison officials in federal court; each case was promptly dismissed for failure to state a claim. When he appealed to this court, we ordered, pursuant to the Prison Litigation Reform Act of 1995, Title VIII of Pub.L. No. 104-134, 110 Stat. 1321 (1996), amending 28 U.S.C. § 1915 et seq. (PLRA), that Torres pay the filing fees for the appeals even as an indigent prisoner. Consequently, Virginia corrections officials commenced withholding forty percent of Torres's “preceding month's income credited to [his] account” from his prison trust account, rather than the twenty percent mentioned in 28 U.S.C. § 1915(b)(2), to satisfy the filing fee requirement for his two appeals. Torres objected to the forty percent exaction and has filed a motion for a refund of the fees collected from his account in excess of twenty percent.

For the reasons that follow, we conclude, in agreement with Torres, that 28 U.S.C. § 1915(b)(2) permits only twenty percent of an inmate's preceding month's income to be withheld from a trust account, notwithstanding that, as here, the inmate had two in forma pauperis appeals pending before this court. On the merits of Torres's request for a refund, however, we conclude that although we have the authority to order a refund, under the circumstances in these cases, we decline to do so.


Torres was an inmate at the Red Onion State Prison (“ROSP”) in Virginia. He filed two civil actions in the United States District Court for the Western District of Virginia against prison officials during his imprisonment. In the first case, Torres complained that prison officials failed to repair a malfunctioning night-light in his prison cell, resulting in a disturbing “strobe” effect. J.A. 4-7. The district court promptly dismissed the action sua sponte pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted. Torres v. O'Quinn, No. 7:06-cv-00576-GEC, 2006 WL 2850642 (W.D.Va. Sept. 29, 2006). We affirmed the judgment of dismissal by per curiam opinion. Torres v. O'Quinn, No. 06-7770, 2007 WL 143081 (4th Cir. Jan. 22, 2007) (unpublished). One year later, Torres filed a complaint in district court asserting that a constitutional violation inhered in the prison's prohibition of his subscription to commercially available pictures of nude women. J.A. 47-72. The district court also dismissed that action (again sua sponte ) pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted. Torres v. Johnson, No. 7:07-cv-00398-GEC, 2007 WL 2570217 (W.D.Va. Aug. 31, 2007). Again, upon Torres's appeal, we affirmed. Torres v. Johnson, No. 07-7340, 2008 WL 2115474 (4th Cir. May 20, 2008) (unpublished).

In connection with each of his two appeals, as an indigent prisoner, Torres proceeded under the relevant sections of the PLRA, filing an Application for Leave to Proceed Without Prepayment of Fees, a Consent to Collection of Fees from Trust Account, and a copy of his trust account statement. J.A. 124-33, 189-91. On November 6, 2006, and February 20, 2008, respectively, we granted each of Torres's applications, ordering that an initial payment of twenty percent of the greater of his average monthly deposits or monthly balance from the six months before filing of each appeal be collected as an initial payment. J.A. 135-37, 192-94. In each such order, in accordance with the PLRA, we directed prison officials to withhold and forward to the clerk of the district court, twenty percent of Torres's monthly deposits when his income exceeded $10 until the full filing fee was discharged. Id. In March 2007, ROSP officials began withdrawing money, at the twenty percent rate, from Torres's account to pay the filing fee for his first appeal. Beginning on June 26, 2008, however, after they received our February 20, 2008, order for the second appeal, ROSP officials began withdrawing forty percent, i.e., twenty percent per appeal. When, periodically, the district court received the funds so withheld it applied the full amount to the filing fee of Torres's first appeal. J.A. 174.

On September 23, 2008, Torres sent a letter to the district court challenging the propriety of the excessive withdrawals. In this letter, he insisted that there must have been an error in the collection of fees from his prison account. J.A. 175-77. On October 28, 2008, the district court (through its pro se law clerk) responded to Torres and advised him that all the money that had been withheld from his account was being applied to the fee related to the first appeal, and that after that fee is paid in full, the money withheld would then be applied to his second appeal. J.A. 174. The district court also advised Torres that any objection to the amount of withholding should be addressed to this court. Id. We construed Torres's objection as a motion for return of fees and appointed counsel to present argument on his behalf. The Attorney General of Virginia has entered an appearance to defend the prison's practice of withholding twenty percent of an inmate's account (or income, as the case may be) for each and every appeal for which an inmate owed fees, without regard for the twenty percent exaction mentioned in the PLRA. We have jurisdiction to review the propriety of the implementation of our prior orders.1


The PLRA, enacted in 1996, changed the landscape of prisoner litigation. Congress required that indigent prisoners filing lawsuits be held responsible for the full amount of filing fees. Section 1915(b) sets forth the requirements for the payment of fees by prisoners filing suit in federal court. If an indigent inmate is unable to pay the full fee at once, he may be ordered to make an initial “partial payment” of the filing fee. After the initial partial payment, such a prisoner goes on a “monthly payment plan” until the filing fee is fully discharged. The portions of § 1915(b) relevant in this case state:

(b)(1) Notwithstanding subsection (a), 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 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)(1) & (2). The question presented here is whether § 1915(b)(2) allows only a maximum of twenty percent to be taken from a prisoner's monthly income regardless of the number of cases or appeals filed, or does the statute require (or permit) twenty percent be taken each month for each case or appeal that the prisoner files; that is, does the financial exaction from the inmate pursuant to § 1915(b)(2) imply no statutory cap, or can it climb to nearly one hundred percent of the monthly deposits to the trust account? 2


Although the question is an open one in this circuit, there is a split of authority among our sister circuits: the Fifth, Seventh, and Eighth Circuits have interpreted § 1915(b)(2) to require prisoners to pay twenty percent of their funds towards filing fees per case and per appeal; the Second Circuit has interpreted the statute to cap the payment of fees at twenty percent of the prisoner's income, regardless of the number of cases or appeals for which the prisoner is indebted.3 We join the Second Circuit and hold that § 1915(b)(2) requires that no more than twenty percent of an inmate's monthly income be deducted to pay filing fees, irrespective of the total number of cases or appeals the inmate has pending at any one time. We so hold because we find that the most plausible reading of the statute, in light of Congress' intent as reflected in legislative history and the structure of the statute, and in the face of a looming constitutional question posed by the alternative interpretation, together dictate that, in no instance should the monthly withholdings for filing fees exceed twenty percent of the inmate's income from the preceding month.


The Fifth Circuit has concluded that § 1915(b)(1) and (b)(2) are unambiguous and that their meaning can be determined by a plain reading of the statutory language. See Atchison v. Collins, 288 F.3d 177, 180 (5th Cir.2002) (per curiam). The court reasoned that the...

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