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Dissenter Raps Rehearing Denial in Case Over Filing Fees
Fletcher Bemoans Ruling Establishing That Indigent Prisoners, Filing Jointly, Must Each Pay $350, Calling Mandate ‘Atextual,’ ‘Counterintuitive’ Exception to Uniform Rule Requiring Single Charge
By a MetNews Staff Writer
Senior Ninth U.S. Circuit Court of Appeals Judge William A. Fletcher yesterday dissented from an order denying a petition for rehearing en banc of a panel decision finding that indigent inmates may jointly pursue legal action against a common defendant, under Federal Rule of Civil Procedure 20, so long as each plaintiff pays the full $350 filing fee.
Saying that he “strongly disagrees” with that reading of the relevant statutory provisions, Fletcher wrote:
“All tools of statutory interpretation—plain meaning of the text, statutory coherence, congressional intent, Supreme Court authority, and practical reality—lead to a different conclusion.”
At issue is a provision of the Prison Litigation Reform Act of 1995 (“PLRA”), found at 28 U.S.C. §1915(b), which provides:
“[I]f a prisoner brings a civil action…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…the average monthly deposits to the prisoner’s account; or…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.”
Sec. 1914 specifies:
“The clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court…to pay a filing fee of $350….”
January Opinion
In a divided January opinion, authored by authored by Circuit Judge Consuelo M. Callahan and joined in by Circuit Judge Lawrence VanDyke, the court found that two inmates who jointly filed a complaint in forma pauperis (“IFP”) were each on the hook for the full fee. In the pleading, Topaz Johnson and Ian Henderson asserted Eighth Amendment Violations under 42 U.S.C. §1983 against the High Desert State Prison.
Senior Circuit Judge Susan P. Graber dissented, saying the ruling leads to “absurd results.”
Agreeing with Graber, Fletcher sua sponte called for a vote on whether the case should be reheard en banc, which was denied yesterday, as was a petition for a panel rehearing.
Fletcher said:
“In ordinary civil litigation when multiple plaintiffs join in a single suit under Rule 20, the filing fee is $350. When plaintiffs file a class action, the fee is $350. In PLRA litigation, when multiple prisoner-plaintiffs join in a single suit under Rule 20 and can afford to pay the entire filing fee up front, the fee is $350.”
He continued:
“The panel majority in this case has created a counterintuitive and atextual exception to this uniform rule. Under the panel majority’s holding, if IFP prisoners join as plaintiffs in a single suit under Rule 20, they each owe the filing fee of $350. If there are three plaintiffs, the filing fee for their single Rule 20 suit is $1,050. If there are ten plaintiffs, the fee is $3,500. And so on. In short, because the plaintiffs are poor, they pay more.”
Statutory Text
Looking to the statutory text, Fletcher remarked:
“Please note two things. First, §1915(b) addresses only suits brought by single IFP prisoner-plaintiffs. The usage throughout §1915(b) is singular—’a prisoner’ and ‘the prisoner.’ Section 1915(b) says nothing about suits brought by multiple IFP prisoner-plaintiffs. Second, §1915(b)(3) specifies that ‘in no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action.’ Section §1914(a) specifies that the filing fee ‘permitted by statute’ is $350.”
The judge acknowledged that the purpose behind the PLRA was to address concerns over an increasing number of detainee lawsuits, and quoted from then-U.S. Sen. Bob Dole, R-Kan., one of the sponsors of the proposal, who addressed the filing fee requirement in remarks to the legislative body, saying:
“When average law-abiding citizens file a lawsuit, they recognize that there could be an economic downside to going to court. Convicted criminals should not get preferential treatment. If a law-abiding citizen has to pay the costs associated with a lawsuit, so too should a convicted criminal.”
Noting that Dole “did not say that prisoner-plaintiffs should get worse treatment,” he argued that the “Legislative history further contradicts the panel majority’s decision.”
Supreme Court Case
Fletcher said that while “[t]here is no Supreme Court case directly on point,” the 2007 decision in Jones v. Bock “comes very close.” He explained:
“The Court tells us in Jones that we should read the PLRA against the background of existing procedural rules, and that we should follow those rules unless the PLRA specifically instructs otherwise.”
Applying the reasoning to the filing fee section, he opined:
“[W]hen the PRLA is ‘silent’ on an issue, this is ‘strong evidence that the usual practice should be followed.’…The PLRA is silent on the issue whether multiple IFP prisoner-plaintiffs joined under Rule 20 should each pay a filing fee of $350. The panel majority should have followed the ‘usual practice’— indeed, the uniform practice—of charging a single filing fee of $350.”
Saying that “[a]ssessing a single filing fee in a Rule 20 suit filed by multiple IFP prisoner-plaintiffs makes practical sense,” he commented:
“Assessing a single filing fee provides an incentive for IFP prisoner-plaintiffs with a common issue to join in a single suit. The rule adopted by the panel majority foregoes that incentive, encouraging multiple suits by multiple plaintiffs when a single suit would be more efficient, for both the plaintiffs and the judiciary.”
Not Esoteric
He added:
“The issue presented in this case may seem esoteric, but it is not. The federal docket is replete with cases filed by prisoners seeking relief from unconstitutional practices and conditions. Almost all of these prisoners are poor….[E]ven some of the highest earning prisoners in California would have to work close to a thousand hours to make the $350 needed to file a single civil action. And that assumes that all of the money is being saved, rather than used to pay for the cost of their detention, food, medical copays, or communications with family. Given this economic reality, a requirement that each indigent prisoner in a multiple-plaintiff Rule 20 case pay a $350 filing fee makes no sense.”
Fletcher pointed out that “[t]here circuits have gone the other way” and remarked:
“I write the above in the hope the Supreme Court will grant certiorari.”
The case is Johnson v. High Desert State Prison, 23-15299.
Callahan and VanDyke were appointed by Republican presidents. Fletcher and Graber were each placed on the court by former President Bill Clinton, a Democrat.
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