Hagan v. Rogers

JORDAN, Circuit Judge,

Concurring in part and Dissenting in part.

The issues in this appeal are, first, whether prisoners seeking to proceed in forma pauperis under the Prison Litigation Reform Act (“PLRA” or the “Act”), 28 U.S.C. §§ 1915 et. seq., may be joined under Rule 20 of the Federal Rules of Civil Procedure, and second, if so, whether joinder should be permitted in this case. My colleagues answer the first question in the affirmative, and, though I have reservations about their interpretation of the PLRA, I agree with them on that. They are, however, unable to agree with each other on the method for collecting the necessary filing fees associated with any jointly filed civil action or appeal.7 On this point, I agree with Judge Rendell that § 1915(b)(1) requires the collection of the full filing fee from each prisoner. Nevertheless, in the end, I part company with both of my colleagues on the decision to reverse the District Court’s denial of joinder because I believe the District Court correctly determined that characteristics of the prison setting will generally make joinder under Rule 20 impracticable and that this case fits that general rule. I therefore respectfully dissent.8

*160Although I agree with the Majority that the PLRA does not repeal Rule 20 by implication, I write separately on this issue to explain why I view the more logical reading of § 1915(b)(3) as being inconsistent with joinder.9 The PLRA arose out of a concern that restrictions in the in forma pauperis statute failed to adequately deter prisoners from filing frivolous lawsuits. Para-Professional Law Clinic at SCI-Graterford v. Beard, 334 F.3d 301, 303 (3d Cir.2003) (“Congress enacted the PLRA in an apparent effort ... to discourage prisoners from filing frivolous lawsuits which strain the judiciary’s scarce resources.”). Under § 1915, when “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.” 28 U.S.C. § 1915(b)(1). The statute also states that the filing fee collected in a prisoner action may not “exceed the amount of fees permitted by statute for the commencement of a civil action or an appeal of a civil action or criminal judgment.” Id. § 1915(b)(3).

Judge Rendell, adopting the position of the Seventh Circuit in Boriboune v. Berge, 391 F.3d 852 (7th Cir.2004), concludes that § 1915(b)(1) and Rule 20 may be read in harmony by requiring each joined prisoner to pay a full filing fee. (Maj. Op. at 154-56.) I agree that a plain reading of § 1915(b)(1) requires each prisoner to pay a full filing fee. I find it much harder to agree that multiple prisoners can be joined under Rule 20 in a single suit and each be compelled to pay the full filing fee. That approach runs afoul of the emphatic mandate in § 1915(b)(3) that “in no event” may the fee collected in a prisoner case exceed that collected in any other civil action or appeal. As Judge Rendell sees it, common sense suggests that the ultimate concern of § 1915(b)(3) is that each prisoner not pay more than the full filing fee for any action, rather than that the total fee collected in a given case not exceed that collected in any other case. While I agree that § 1915(b)(3) can be read as she proposes, I remain convinced that the logic and language of the PLRA are in large measure inconsistent with joinder under Rule 20.

The best guide to Congressional intent is the Act itself. See Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp. Auth., 539 F.3d 199, 210 (3d Cir.2008) (“We assume that Congress expresses its intent through the ordinary meaning of its language and therefore begin with an examination of the plain language of the statute.”) (internal quotation marks and citation omitted). Congress’s use of the passive construction, “the fee collected,” indicates that § 1915(b)(3) is not to be viewed solely on a prisoner-by-prisoner basis but that the fee for the case itself, in total, ought not exceed the standard fee in any similar action. “Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.” Negonsott v. Samuels, 507 U.S. 99, 104, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993); accord Abduh-Akbar v. McKelvie, *161239 F.3d 307, 313 (3d Cir.2001) (en banc). The language of the PLRA is reasonably plain in this regard. It says, without qualification, that a full filing fee must be collected from a litigating prisoner and, again, that “in no event shall the fee collected exceed the amount of fees permitted by statute for the commencement of a civil action or an appeal of a civil action.” § 1915(b)(1), (3) (emphasis added). Having multiple prisoners in a single suit, each paying a full fee creates an “event” that we are instructed should in no event be created. For example, in this case, collecting a full filing fee on appeal from each prisoner will result in a total fee of approximately $6300, far in excess of the $450 fee collected in the filing of any other civil appeal. As Judge Roth points out, that result “is incongruous with the relevant statutory scheme....”10 (Concurring Op., ¶ 1.)

I am, however, unable to agree with Judge Roth’s resolution of the fees conundrum because it appears incompatible with the plain language of the PLRA. The Act is phrased in the singular: “if a prisoner brings a civil action or files a civil appeal, the prisoner shall be required to pay the full amount of a filing fee.” § 1915(b)(1) (emphasis added). While Judge Roth reads § 1915(b)(1) with stress on the “a” of “a filing fee,” see Talley-Bey v. Knebl, 168 F.3d 884, 885 (6th Cir.1999), such a reading dismisses the rest of the same sentence, which obligates the filing party, not a collective of filing parties, to pay the full amount of any filing fee, not a portion of it. Indeed, when Judge Roth says her solution would satisfy § 1915(b)(1) “because each prisoner would pay a full filing fee” (Concur. Op. at 164; original emphasis), a reader must stumble over the word “full.” There is nothing “full” about paying a partial fee.

Congress’s choice of language in §§ 1915(b)(1) and (b)(3) makes sense when we recall that the individual responsibility of each prisoner to pay his or her own way in litigation is central to the purpose of the PLRA. See Abdul-Akbar, 239 F.3d at 312 (“In enacting the PLRA, Congress concluded that the large number of meritless prisoner claims was caused by the fact that prisoners easily obtained [in forma pauperis] status and hence were not subject to the same economic disincentives to filing meritless cases that face other civil litigants.”). The “modest monetary outlay” of the full filing fee is intended to “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?” See 141 Cong. Rec. S 7, 498-01, 526 (May 25, 1995) (Statement of Sen. Kyi). Reading the PLRA in a way that permits individual prisoner-plaintiffs to circumvent the required monetary outlay is, it would seem, a betrayal of the statute’s purpose, and can only undermine Congress’s effort to stem the tide of frivolous litigation.11

*162Despite my views regarding the better reading of § 1915(b), I agree with my colleagues that, for us to decide that Rule 20 does not apply in prisoner eases, we must first conclude that the PLRA repealed the Rule by implication, at least to the limited extent that the two cannot both be properly applied in the context of prisoner litigation. As the Majority points out, repeal by implication requires that the “intention of the legislature to repeal [is] clear and manifest.” Hawaii v. Office of Hawaiian Affairs, — U.S.-, 129 S.Ct. 1436, 1445, 173 L.Ed.2d 333 (U.S. Mar. 31, 2009) (citation omitted). Where possible, statutes that appear to conflict should be read to give effect to both. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (“Where two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”) (internal quotations and citations omitted). Although I cannot wholly embrace Judge Rendell’s reading of the PLRA, it is at least a plausible reading of the statute. Section 1915(b)(3) may legitimately be read so that the “in no event” language is limited to a single-plaintiff suit, thereby ensuring nothing more than that, when a filing fee is collected from an in forma pauperis plaintiff in installments, the sum of the fee collected from that plaintiff is no more than that collected in any other civil action. Because that reading would give full effect to both the PLRA and Rule 20,1 am unable to conclude that there is an irreconcilable conflict that would warrant a repeal by implication. I therefore join my colleagues in holding that joinder under Rule 20 is not inconsistent with the PLRA, at least not as a matter of statutory interpretation.

Of course, there are, as the District Court found here, a number of reasons why allowing prison inmates to jointly litigate may generally be unwise. Beyond both the parsing of language in the PLRA and abstract thoughts about the Federal Rules of Civil Procedure, there remains a world of practical difficulty in dealing with legal claims pressed by prisoners. Thus, even though joinder under Rule 20 is not prohibited by the PLRA, I am unable to agree with the Majority’s conclusion that the District Court was wrong to deny the motion for joinder in this case.

The District Court’s well-reasoned opinion identifies several issues that deserve greater respect than we have given them. If joinder of prisoners is freely permitted, there will be inevitable demands to allow meetings and other communications about litigation strategy. Trying to coordinate prisoner schedules and monitor such interactions, while dealing with the virtually certain insistence that prisoner discussions of privileged matters must not be monitored, will place obvious and onerous demands on prison administrators, not to mention making simple safety and disciplinary measures more difficult to enforce, since every added layer of legalism adds friction to the administrative process. Society accepts a certain degree of such friction, because efficiency is not the sole or the primary goal of our penal system. But *163we should be extremely cautious about adding to the inefficiency, particularly when the rules we impose are susceptible to abuse by savvy jail-house lawyers.

The realities of prison operation, with which district court judges become familiar through the many pro se prisoner cases filed each year, are discounted by the Majority’s suggestion that “joint litigation by inmates of the [Adult Diagnostic and Treatment Center] may be manageable” because the ADTC is “a relatively small facility with approximately 600 inmates. ...” (Maj. Op. 156-57 n. 4.) Even at a comparatively small facility, permitting inmates to congregate and having to monitor materials passed between them, all while maintaining the safety of other inmates and prison personnel, would be no small feat. And, of course, that says nothing of the impact our decision will have on not-so-small institutions.

The transitory nature of the prisoner population is another factor identified by the District Court as problematic for multi-prisoner case administration. Repeated questions about standing and mootness will arise from an ever-changing list of plaintiffs, and ordinary logistics will be troublesome. Even in this case, with a moderate number of plaintiffs, the shifting prison population has proven a challenge. By the time the case was argued to us, only five of the fourteen plaintiffs were still in the Adult Diagnostic and Treatment Center, while eight others were no longer in the New Jersey correctional system at all. While keeping tabs on those outside the prison system may be easier in this case because formerly incarcerated plaintiffs are required to register as sex offenders, there is no guarantee that released plaintiffs will be locatable under other circumstances. As our own docket reflects, hunting for plaintiffs imposes administrative burdens. See Docket 12/24/08 and 1/09/2009 letters from the Clerk of the Third Circuit to the ADTC (seeking forwarding information for released and deceased inmates for purposes of notification of oral argument).

Perhaps of greatest concern is the addition of a new subject for intimidation and coercion within the prison setting. Even well-run prisons can present a dangerous environment, in which freedom of choice is constrained not just by official means. Inmates may be compelled through threats, physical force, or more subtle forms of duress to join lawsuits in which they would otherwise have no interest. Climbing on-board a complaint about prison conditions may seem like an excellent idea when the alternative is presented by a fellow inmate with a record for assault.

The concerns behind the District Court’s decision are not a fanciful parade of horribles. They reflect a seasoned judge’s view of predictable outcomes and an understanding that treating incarcerated criminals as if they had nothing to gain by gaming the litigation system is systemically bad both for the courts and the prisons. Thus, I am not inclined, as the Majority is, to say that a general statement of opposition to Rule 20 joinder in prisoner cases constitutes an abuse of discretion. Moreover, while the District Court did not fully explain its application of that general rule to the facts of this case, its denial of joinder was sufficiently tied to the present particulars that we should recognize the decision as fairly disposing of the case on its facts and not simply as announcing “general assumptions regarding the circumstances of incarceration.”12 (Maj. Op. at 157.)

*164The District Court produced a thoughtful and, to me at least, thoroughly persuasive opinion in this regard. It’s ruling was not an abuse of discretion. Consequently, except to the extent noted, I dissent.

. Because this action was initiated as a single claim, the issue of the appropriate fee arose for the first time when the parties jointly sought to pursue this appeal in forma pauper-is. While that motion was initially granted, the Clerk later vacated the order on the basis that "the issue of how to assess filing fees in multi-plaintiff cases is an open question in this circuit.” (App. at 143.) We then directed the parties to address the manner in which fees are to be assessed for an appeal involving multiple prisoner-appellants. The effect of any holding on the issue of fees, however, is not limited to fees on appeal but also applies to the fees due on initiation of a multi-prisoner civil action.

. In addition to agreeing with the majority that there is no irreconcilable conflict between the PLRA and Rule 20, I also concur with the Majority's reasoning regarding our jurisdiction to consider this appeal. In addition, I agree with the Majority's conclusion that, on this record, it was premature to rule that a class could not be certified in this case. (Maj. Op. at 158-59.) I therefore agree that the District Court should not have denied class certification at this stage, and I concur in the judgment to that limited extent, though that does not imply that class certification must be granted, nor does it say anything about who, if anyone, could properly serve as class representative. It means only that the *160reasons given for denial are insufficient, as explained by the Majority.

. My colleagues also express the view that there is no conflict between Rule 20 and § 1915(g), the so-called "three strikes” provision. I question that conclusion because it seems more likely that, under the language of the PLRA, no litigant would be assessed a strike unless an action was dismissed in its entirety, thereby allowing a stack of frivolous claims to be balanced on a single meritorious claim. However, the issue of strike allocation was not before the District Court and is not before us. We therefore need not address it at this juncture.

. Viewing §§ 1915(b)(3) and (4) as directed to an individual prisoner's ability to initiate an action, as suggested in Judge Rendell's opinion, supports the conclusion that the PLRA was meant to protect prisoners from punitive filing fees, but it implies nothing of an intention to foster joint actions by prisoners. Hence, in the face of Judge Roth's accurate observation about the incongruity of the result here, Judge Rendell's appeal to common sense is not entirely persuasive.

. It is noteworthy that the statutory construction problems posed by applying Rule 20 in the face of the strictures of §§ 1915(b) and (g) do not arise in the context of consolidation of suits under Federal Rule of Civil Procedure 42(a). The difference between joinder under Rule 20 and consolidation under Rule 42(a) is not a distinction without a difference. Under the latter rule, before there is a consolidation there are, by definition, separate actions, for each of which a filing fee is paid and each of which must stand on its own merit. See *162Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97, 53 S.Ct. 721, 77 L.Ed. 1331 (1933); In re Community Bank of Northern Virginia, 418 F.3d 277, 298 n. 12 (3d Cir.2005) (affirming Johnson as the “authoritative” statement on the law of consolidation) (citation omitted). Rule 42(a) stands as an independent and solid foundation for bringing efficiencies to related prisoner lawsuits, as district courts may, on a case-by-case basis, deem fit. See Young v. City of Augusta, 59 F.3d 1160, 1168— 69 (11th Cir.1995) (when the "core issue of liability" was “the same in both cases!,]” consolidation of actions involving prison deliberate indifference claims would be warranted).

. The District Court did say, "Plaintiffs here have asserted claims that require individualized screening.... The adequacy of the claim alleged by each Plaintiff is dependent upon *164his individual medical need and the behavior of prison officials with respect to that individual Plaintiff.” (App. at 12.) The Court thus appears to have been concerned not merely with prisoner litigation in the abstract but rather with problems it foresaw in the circumstances presented by this case.