Tuesday, March 3, 2026
Page 3
U.S. Supreme Court:
Sotomayor Bemoans Failure to Review Prisoner Filing Fees
Justice Pens Dissent to Denial of Petition for Writ of Certiorari in Case in Which Ninth Circuit Ruled That Two California Inmates May Not Split Charge Associated With Joint Civil Rights Complaint
By Kimber Cooley, associate editor
A divided U.S. Supreme Court yesterday denied a petition for a writ of certiorari in a case in which the Ninth U.S. Circuit Court of Appeals ruled that two indigent California inmates are each on the hook for a mandatory $350 filing fee associated with their joint civil rights complaint, drawing a dissent by Justice Sonia Sotomayor over concerns that the decision effectively closes the courthouse doors to the poorest of prisoners.
Saying that “[r]equiring indigent prisoners each to pay the full…fee needlessly and unfairly makes it harder for them to vindicate their rights, challenge conditions of confinement, and…obtain redress for alleged mistreatment,” Sotomayor wrote:
“This case asks whether federal law prohibits the poorest prisoners from splitting the $350 fee required to file a federal lawsuit when it allows everyone else to do so. The answer statutorily appears to be no. Because the decision below held otherwise and deepened a split among the Courts of Appeals, the Court should grant the petition for a writ of certiorari.”
Justice Ketanji Brown Jackson joined in Sotomayor’s dissent.
Filing Fee
At issue is a filing fee authorized under 28 U.S.C. §1914, which provides:
“The clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $350….”
Sec. 1915(a) creates an exception to the requirement, specifying that a court may waive the filing fee for indigent plaintiffs who may proceed in forma pauperis (“IFP”) if they make a sufficient showing of financial need.
In 1995, however, Congress passed the Prison Litigation Reform Act (“PLRA”) to curtail the filing of frivolous lawsuits by inmates. One provision, found 28 U.S.C. §1915(b)(1), 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 question arose after Topaz Johnson and Ian Henderson, two inmates of California’s High Desert State Prison, filed a complaint against the correctional institute and certain of its officials in July 2022 and applied to proceed IFP. They asserted Eighth Amendment claims under 42 U.S.C. §1983 and alleged that officers forced them to stand in “dirty…holding cages in handcuffs” for nearly nine hours, causing them physical and emotional pain.
Separate Lawsuits
In February 2023, then-District Court Judge Troy L. Nunley of the Eastern District of California (now chief judge) denied their request and severed their claims, reasoning that the law requires inmates to file separate lawsuits.
On Jan. 27, 2025, a divided Ninth Circuit panel reversed, in an opinion written by Circuit Judge Consuelo M. Callahan and joined in by Judge Lawrence VanDyke, holding that the PLRA does not prohibit prisoners from proceeding together in lawsuits but does require that each inmate pay the full filing fee.
Senior Circuit Judge Susan P. Graber dissented as to the filing fee, saying that the majority’s decision “misreads the governing statute” and leads to “perverse result[s].”
After Senior Circuit Judge William Fletcher sua sponte called for a vote on whether the case should be reheard en banc, the Ninth Circuit denied the request last July. Fletcher, joined by Graber, penned a dissent to the denial, saying “I write…in the hope the Supreme Court will grant certiorari.”
Likely Incorrect
Agreeing with Graber and Fletcher, Sotomayor opined:
“Here, the PLRA does not expressly instruct courts to collect multiple fees for one suit from indigent prisoners. In fact, it says the exact opposite: ‘In no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action.’ §1915(b)(3). This unequivocal prohibition makes clear that, even when multiple prisoners proceed IFP in a single lawsuit…, courts cannot collect more than what federal law permits them to charge…: $350, per case.”
She continued:
“[Under the panel’s reading]…two prisoners with enough money can sue together and pay $175 each. Two prisoners without enough money, however, must each pay $350 even if they sue together. If Congress meant to change civil procedure to make those with less pay more, it would have said so. Without such a command, it makes no sense to think that Congress intended for non-IFP prisoners to pay a fraction of what IFP prisoners must pay.”
Congressional Goal
Acknowledging that “[t]he panel suggested that these unfair results were justified as a means of advancing Congress’s goal of reducing frivolous prisoner litigation,” she opined:
“The only reasonable way to make sense of the statutory scheme in its entirety is to recognize that courts may no…waive or reduce a prisoner’s filing fee, but also may not…collect more than a single filing fee for the whole case. What that means is that indigent prisoners must be allowed to share the cost of a single filing fee. The Ninth Circuit likely erred in holding otherwise.”
Arguing that “[t]he remaining certiorari factors also favor granting this petition,” Sotomayor pointed out that “there is an entrenched [circuit] split on this issue” and that “this case presents an important, recurring issue of federal law.” She added:
“To add to their financial burdens, prisoners who wish to appeal the initial filing fee must pay an additional $600. That considerable sum makes it even harder for prisoners earning cents on the hour to obtain justice….I can only hope that the next time indigent prisoners facing this issue raise nearly $1,000 each just for the opportunity to knock on this Court’s door, my colleagues will choose to open it. I respectfully dissent.”
Yesterday’s order notes that Justice Elena Kagan “would grant the petition for a writ of certiorari.” She did not join in Sotomayor’s dissent.
The case is Johnson v. High Desert State Prison, 25-457.
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