Tucker v. Branker

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: GINSBURG
• Citation: Tucker v. Branker, 142 F.3d 1294, 330 U.S. App. D.C. 67 (D.C. Cir. 1998)
• Decision Date: 12 May 1998
• Docket Number: No. 96-5177,96-5177
• Parties: Cornelius TUCKER, Jr., Appellant, v. G. BRANKER, Captain, et al., Appellees.

Page 1294

142 F.3d 1294

330 U.S.App.D.C. 67

Cornelius TUCKER, Jr., Appellant, v. G. BRANKER, Captain, et al., Appellees.

No. 96-5177.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 15, 1998.

Decided May 12, 1998.

Appeal from the United States District Court for the District of Columbia (No. 96cv00526).

Rudolph Y. Kim, student counsel, argued the cause as amicus curiae on the side of appellant, with whom Steven H. Goldblatt, appointed by the court, and Jose C. Escano, student counsel, were on the briefs.

R. Craig Lawrence, Assistant U.S. Attorney, argued the cause for appellees, with whom Mary Lou Leary, U.S. Attorney at the time the brief was filed, was on the brief.

Before: GINSBURG and TATEL, Circuit Judges, and BUCKLEY, Senior Circuit Judge.

GINSBURG, Circuit Judge:

Cornelius Tucker, until recently a state prisoner in North Carolina, challenges the constitutionality of the filing-fee provision of the Prison Litigation Reform Act of 1995, Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, § 804, 110 Stat. 1321-66, 1321-73 (1996) (codified at 28 U.S.C. § 1915). Tucker contends that the filing-fee provision violates his rights of access to the courts and to equal protection of the laws, both as protected by the Due Process Clause of the Fifth Amendment to the Constitution of the United States.

I. Background

In 1892 the Congress gave the district courts discretion to waive for indigents all or part of the fee normally required of a plaintiff upon the filing of a civil action. See Act of July 20, 1892, ch. 209, 27 Stat. 252 (codified as amended at 28 U.S.C. § 1915) (hereinafter IFP statute). In 1996 the Congress amended the IFP statute with respect to suits filed by prisoners, which were numerous and growing more so, based upon the belief that most such suits were facially defective, if not outright frivolous. As explained by one of its sponsors, the goal of the PLRA was to reduce the number of such meritless lawsuits:

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 law-abiding Americans must make: Is the lawsuit worth the price?

141 Cong. Rec. S7,526 (daily ed. May 25, 1995) (statement of Senator Kyl).

The PLRA amended § 1915 in several respects relevant to the present case. First, the statute newly requires that in order to qualify as an indigent a prisoner must submit both an affidavit stating that he cannot afford to pay the filing fee, 28 U.S.C. § 1915(a)(1), and a certified copy of his prison trust fund account statement covering the most recent six months, id. § 1915(a)(2). Second, the amended statute provides that "the prisoner shall be required to pay the full amount of [the] filing fee," id. § 1915(b)(1), upon the following terms. If the prisoner cannot pay the entire fee at once, then he must pay 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.

Id. § 1915(b)(1); thereafter, whenever "the amount in [his] account exceeds $10" the prisoner must make monthly payments equal to 20 percent of the income credited to his account during the preceding month until the prisoner has paid the balance of the filing fee. Id. § 1915(b)(2). If the prisoner cannot pay all or indeed any of the initial partial filing fee, then under the so-called "safety-valve" provision he may still proceed with his case and pay the whole fee over time. See id. § 1915(b)(4) ("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"). Third, the statute provides that the district court "shall dismiss" a case filed IFP if it determines that the case "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." Id. § 1915(e)(2)(B). Finally, the PLRA retained the provision permitting the court to award costs to a successful IFP plaintiff, id. § 1915(f)(1) (except against the United States); and newly provided that if the court awards costs against an unsuccessful prisoner then the prisoner is required to pay the costs in the same manner as the filing fee. Id. § 1915(f)(2).

On March 18, 1996, which was before the effective date of the PLRA, Tucker filed a pro se civil action under 42 U.S.C. § 1983 against one Captain Branker (a correctional officer at the prison in which Tucker was incarcerated) and the President and Vice President of the United States, alleging that the defendants had violated his constitutional rights by, among other things, (1) giving him the drug Thorazine four times a day; (2) refusing to mail "10 suits" to various courts; and (3) housing him with tuberculosis patients who refused to take their medicine. Tucker applied for IFP status claiming that his only income was $20 per month, which he needed for "bare necessities." The prison accounting department certified that as of January 12, 1996 Tucker had no money in his prison trust account. The district court granted Tucker's application to proceed IFP but, pursuant to former 28 U.S.C. § 1915(d), sua sponte dismissed Tucker's complaint because it was "without basis in law or in fact." The court denied Tucker's motion for reconsideration and he appealed.

We permitted Tucker to proceed IFP on appeal but, because the PLRA had become effective before he filed his notice of appeal (on May 28, 1996), we ordered him to submit his Prisoner Trust Account Report and a Consent to Collection of Fees from Trust Account and to pay the appropriate portion of the filing fee of $105. Tucker refused to file the report, sign the consent form, or pay the initial fee. Instead, Tucker moved for reconsideration, asserting that the filing-fee provision of the PLRA is unconstitutional and requesting appointment of counsel. Tucker claimed that he was "without income and bare necessities of life for toiletries, stamps, [and] hygiene items which require any and all gifts of monies" and that he was "bankrupt."

We denied Tucker's request for counsel but we did appoint an amicus curiae to argue that the filing-fee provision of the PLRA is unconstitutional. Other than his original handwritten motion for reconsideration, Tucker has not filed any brief in support of his position but rather relies upon the arguments of the amicus. Although Tucker is no longer incarcerated, his challenge to the PLRA remains alive, as we have held that "release from prison does not relieve [a former prisoner] of past due obligations under the PLRA." In re Smith, 114 F.3d 1247, 1249 (D.C.Cir.1997).

II. Analysis

The amicus argues on behalf of Tucker that the filing-fee provision of the PLRA violates his due process right of access to the courts and that it discriminates against prisoners in violation of the equal protection component of due process. We conclude that the filing-fee provision is constitutional.

A. Due Process

Prisoners have the right, as a matter of due process, to adequate, effective, and meaningful access to the courts. See, e.g., Lewis v. Casey, 518 U.S. 343, 349-50, 116 S.Ct. 2174, 2179-80, 135 L.Ed.2d 606 (1996); Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977); Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974). But they do not ordinarily have a right to cost-free access: "The correct principle is that reasonable costs may be imposed on persons who want to sue." Lumbert v. Illinois Dep't of Corrections, 827 F.2d 257, 259 (7th Cir.1987).

The present question, therefore, is whether the filing-fee provision of the PLRA denies prisoners effective access to the courts. For the reasons set out below, we join five other circuits in concluding that it does not. See 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).

We begin with the observation that, under the safety-valve provision, even a destitute prisoner may file his suit if he wants to, without having to pay any initial fee; his only obligation is to pay the fee when and if he can, as detailed below. 28 U.S.C. § 1915(b)(4); see Norton, 122 F.3d at 290-91; Nicholas, 114 F.3d at 21; Roller, 107 F.3d at 233; Hampton, 106 F.3d at 1284. Second, a prisoner with only modest means must make only a proportionately modest up-front payment--20% of the average monthly deposits or balance in his account over a six-month period. Whether the prisoner paid some or none of the fee upon filing, the balance due is collected from him at the 20% rate only when and if "the amount in [his] account exceeds $10." 28 U.S.C. § 1915(b)(1) & (2); see Roller, 107 F.3d at 233; Hampton, 106 F.3d at 1284. Third, even an indigent prisoner who loses his case and must pay the defendant's costs may do so over time, upon the same terms as the filing fee. 28 U.S.C. § 1915(f)(2)(B). In sum, the payment requirement of the PLRA never exacts more than 20% of an indigent prisoner's assets or income.

The amicus contends that Tucker challenges the PLRA filing-fee provision "as applied" to him. Although Tucker himself is not clear on the point we shall accept the...