Williamson, In re

• Decision Date: 31 March 1986
• Docket Number: No. 86-1382,86-1382
• Citation: 786 F.2d 1336
• Parties: In re Jewell WILLIAMSON, Petitioner.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1336

786 F.2d 1336

In re Jewell WILLIAMSON, Petitioner.

No. 86-1382.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 16, 1985.

Decided March 31, 1986.

Floyd R. Finch, Jr., Kansas City, Mo., for petitioner.

John L. Oldenburg, Jr., Jefferson City, Mo., for respondents.

Before HEANEY, ARNOLD and JOHN R. GIBSON, Circuit Judges.

HEANEY, Circuit Judge.

Jewell Williamson, an inmate of the Missouri State Penitentiary, petitions this Court under Rule 21(a) of the Federal Rules of Appellate Procedure for a writ of mandamus directing the Honorable Scott O. Wright, Chief United States District Court Judge for the Western District of Missouri, and the Honorable Richard H. Ralston, United States Magistrate for the district, to process his 42 U.S.C. Sec. 1983 complaint in forma pauperis without the payment of a partial filing fee. We deny the petition for a writ of mandamus but, pursuant to the supervisory powers of this Court, we set forth standards to be followed by district courts with respect to partial filing fees in prisoner civil rights appeals.

I. PROCEDURAL BACKGROUND

The United States District Court for the Western District of Missouri recently adopted a practice ¹ of requiring a partial filing fee in civil rights actions instituted by prisoners. Although the judges and magistrates in the Western District of Missouri apparently do not apply this practice uniformly, ² typically the district court files the complaint provisionally when the prisoner requests leave to proceed in forma pauperis, and subsequently determines whether the prisoner should (1) be granted unconditional leave to proceed in forma pauperis, (2) pay the entire filing fee, or (3) pay a portion of the fee. If the district court determines that the prisoner should pay a partial fee, the amount of the fee is fifteen percent of the income received by the inmate during the six months prior to filing the complaint, usually payable in four to six equal monthly installments. The inmate may then file written objections explaining why he should not be required to pay a partial filing fee. If the district court determines that the partial fee is appropriate after the inmate files his objections, the inmate's failure to pay the fee usually results in dismissal without prejudice of his complaint.

On December 14, 1984, Williamson filed a section 1983 complaint against Lee Roy Black, Director of the Missouri Department of Corrections; Bill Armontrout, Warden of the Missouri State Penitentiary; and three physicians, Drs. Benitez, Mack, and Marvin. Williamson alleged that the defendants were deliberately indifferent to his serious medical needs in violation of the eighth amendment by failing to provide corrective surgery for Williamson's ruptured hernia. ³ Williamson's complaint was provisionally filed in forma pauperis, and the case was referred to Magistrate Ralston for review under 28 U.S.C. Sec. 636. Magistrate Ralston reviewed the complaint and, on January 7, 1985, ordered the defendants to show cause why Williamson should not be granted unconditional leave to proceed in forma pauperis. The defendants argued that Williamson's complaint was legally frivolous, and should be dismissed under 28 U.S.C. Sec. 1915(d). On March 27, 1985, the magistrate ruled that Williamson's complaint was not frivolous, and granted Williamson unconditional leave to proceed in forma pauperis.

The defendants then timely filed a motion requesting Magistrate Ralston to reconsider granting Williamson unconditional in forma pauperis status, contending that Williamson had sufficient assets and income to pay a portion of the filing fee under the district court's partial payment plan. The magistrate reviewed a record of the transactions in Williamson's inmate trust account and, on May 10, 1985, granted the defendants' motion for reconsideration. Based on the district court's formula for calculating the partial fee, the magistrate determined that Williamson could pay a partial fee of $20.80 in four $5.20 monthly installments. Williamson filed objections to the magistrate's ruling, and Chief Judge Wright affirmed Magistrate Ralston's order. Although Williamson has not paid the partial filing fee, the district court has not dismissed Williamson's action, and is allowing him to proceed pro se pending this Court's ruling on Williamson's mandamus petition.

II. DISCUSSION

The issues raised in Williamson's petition for a writ of mandamus are whether a district court has the authority under 28 U.S.C. Sec. 1915 to require a partial filing fee, and if so, whether the practice adopted by the United States District Court for the Western District of Missouri is proper.

Federal courts have the statutory authority to permit the commencement of a civil action without prepayment of fees or costs "by a person who makes affidavit that he is unable to pay such costs or give security therefor." 28 U.S.C. Sec. 1915(a). Section 1915 contains no provision indicating that a court may require a litigant to pay a portion of the fees and costs if he cannot pay the full amount. However, in Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex.1977), the court reasoned that

[t]he permissive language of 28 U.S.C. Sec. 1915 authorizes the court, in its discretion, to determine who is entitled to the benefits of litigation without cost.

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It is logical that if the court may grant a waiver of 100 percent of the costs on such a variety of items, the court also is vested with the discretion to waive a lesser percentage of such costs.

Id. at 598-99.

The courts of appeals that have reviewed partial payment plans have held that a district court has the authority under section 1915 to require an indigent litigant to pay at least minimal service and filing fees when evidence of the litigant's present financial situation indicates that he may tender the payment without undue financial hardship. E.g., Jones v. Zimmerman, 752 F.2d 76 (3d Cir.1985); Collier v. Tatum, 722 F.2d 653 (11th Cir.1983); Smith v. Martinez, 706 F.2d 572 (5th Cir.1983); Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982); Zaun v. Dobbin, 628 F.2d 990 (7th Cir.1980); In re Stump, 449 F.2d 1297 (1st Cir.1971). We have no quarrel with this principle. We believe, however, that certain requirements and limitations must guide the district court's discretion in this matter.

The very purpose of section 1915 "is to provide an entre, not a barrier, to the indigent seeking relief in the federal court." Souder v. McGuire, 516 F.2d 820, 823 (3d Cir.1975). Accordingly, "[w]e cannot accept a construction of this statute which conditions the presentation of possibly meritorious claims on the plaintiff's willingness to become completely destitute." In re Smith, 600 F.2d 714, 715 (8th Cir.1979); see also Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40, 69 S.Ct. 85, 89, 93 L.Ed. 43 (1948) (one need not make himself wholly destitute to enjoy the benefits of in forma pauperis statute).

We recognize the unique status of an inmate seeking to proceed in forma pauperis in that he is assured of the basic necessities of life at the state's expense. Thus, it would appear that requiring an inmate to pay a partial filing fee would not render the inmate "completely destitute." However, an inmate should not be denied in forma pauperis status simply because he may be able to pay for some small physical and material comforts, severely limited though they may be, within the prison. We reiterate that "we do not think that prisoners must totally deprive themselves of those small amenities of life which they are permitted to acquire in a prison * * * beyond the food, clothing, and lodging already furnished by the state * * * to litigate in forma pauperis in the district court." ⁴ Smith, 600 F.2d at 716 (quoting Souder, 516 F.2d at 824 (footnote omitted) ). As with any other litigant, indigency for a prisoner under section 1915 is not synonymous with absolute pennilessness. Smith, 600 F.2d at 716.

Yet, we have also recognized that section 1915 "was not enacted for the purpose of requiring the public to underwrite frivolous lawsuits." Id. at 715. Partial payment plans are designed to help curb the indiscriminate filing of frivolous lawsuits "by weeding out those [actions] where it appears the plaintiff himself has some financial resources but has such lack of good faith in his action that he is unwilling to make any contribution, however small, towards meeting its filing costs. Evans, 650 F.2d at 523. ⁵ Thus, proponents of partial payment plans assume that the number of frivolous lawsuits filed in the district court will decrease if an inmate is confronted with "the initial dilemma which faces most other potential civil litigants: is the merit of the claim worth the cost of pursuing it?" Carroll v. United States, 320 F.Supp. 581, 582 (S.D.Tex.1970). See, e.g., Collier, 722 F.2d at 655; Smith, 706 F.2d at 573; Evans, 650 F.2d at 523.

We are, of course, cognizant of the increase in prisoner civil rights actions filed in the district courts within this circuit. See Goff v. Menke, 672 F.2d 702, 705 (8th Cir.1982). A recent study conducted by the Federal Judicial Center, however, indicates that partial payment plans have not significantly reduced the number of prisoner civil rights actions filed, nor have these plans been successful in "weeding out" frivolous actions. See generally T. Willging, Partial Payment of Filing Fees in Prisoner In Forma Pauperis Cases in Federal Courts: A Preliminary Report (Federal Judicial Center 1984) [hereinafter "Federal Judicial Center Report "]. Moreover, there are other effective methods of decreasing the number of civil rights actions filed by prisoners in federal court. ⁶ Nevertheless, section 1915 does not prohibit a district court from implementing a partial payment plan. However, the district courts' discretion in implementing a partial payment plan...