Atchison v. Collins

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-40369

THOMAS L. ATCHISON,
Plaintiff-Appellant,

versus

JAMES A. COLLINS, Director, Texas Department of Criminal Justice;
RONALD REED, Doctor, Unit Health Authority of Texas Department of
Criminal Justice; JIMMY W BENNETT, Unit Health Authority of Texas
Department of Criminal Justice; TAMITRA FISHER, HCS Nurse at Texas
Department of Criminal Justice, DONNA LATHAM, HCS Nurse at Texas
Department of Criminal Justice, Eastham Unit; ALTA WHITE, HCS Nurse
at Texas Department of Criminal Justice, Eastham Unit; JERRY N
BARRATT, Assistant Warden of Texas Department of Criminal Justice;
RODNEY L COOPER, Assistant Warden of Texas Department of Criminal
Justice, Eastham Unit; KENT RAMSEY, Regional Director of Texas
Department of Criminal Justice; CHARLES ALEXANDER, Doctor, Deputy
Director of Texas Department of Criminal Justice; DELORIS SCHIELE,
Health Care Service Nurse,
Defendants-Appellees.

Appeal from the United States District Court
For the Eastern District of Texas

April 4, 2002

Before KING, Chief Judge, HIGGINBOTHAM, and EMILIO M. GARZA,

Circuit Judges.

PER CURIAM:

Prisoner Thomas L. Atchison appeals the denial of his motion

to compel the Texas Department of Criminal Justice (TDCJ) to deduct

no more than twenty percent of his monthly income to pay for filing

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fees incurred as a result of actions he has filed in federal court.

Atchison argues that 28 U.S.C. § 1915(b)(2) requires him to pay no

more than 20 percent of his income each month for filing fees,

irrespective of the number of actions he has filed. The district

court dismissed his motion, and we affirm.

I. BACKGROUND

After this court affirmed the dismissal of the underlying suit

in this case, Atchison filed a post-judgment motion to compel

Appellees to comply with 28 U.S.C. § 1915(e)(2), which according to

Atchison authorizes the prison to take no more than 20 percent of

his income each month to pay filing fees. The prison was instead

taking 60 percent of his income to pay for three filing fees on

which he owed money. The district court denied Atchison’s motion,

and he appeals.

In order to make indigent prisoners partially responsible for

the costs of their litigation, Congress amended 28 U.S.C. § 1915(b)

in the Prison Litigation Reform Act (PLRA) to require prisoners to

pay filing fees in monthly installments. Section 1915(b)(1)

provides that:

if 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. 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

(A) the average monthly deposits to the prisoner’s
account; or

(B) the average monthly balance in the prisoner’s

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 account for the 6-month period immediately
preceding the filing of the complaint or notice of
appeal.1

In this case, Atchison challenges TDCJ’s interpretation of §

1915 (b)(2), which provides for the continued payment of the

remainder of the filing fee after the initial payment has been

made. Section 1915 (b)(2) provides that:

[a]fter payment of the initial partial filing fee, the
prisoner shall be required to make monthly payments of 20
percent of the preceding month’s income credited to the
prisoner’s account. The agency having custody of the
prisoner shall forward payments from the prisoner’s
account to the clerk of the court each time the amount in
the account exceeds $10 until the filing fees are paid.

Appellees contend that the plain language of § 1915 (b)(2)

requires prisoners to pay separate monthly payments of 20 percent

of their income for each filing fee on which they owe money. In the

alternative, if we find that the statute is ambiguous, Appellees

argue that the purpose of the statute is served by interpreting it

to apply “per case” instead of “per prisoner.” Atchison argues for

the “per prisoner” interpretation of § 1915 (b)(2). Construed

liberally,2 Atchison’s brief asserts that the “per case”

interpretation of the statute could require the payment of 100

percent of a prisoner’s income, placing an unreasonable burden upon

his right of meaningful access to the courts.

1
28 U.S.C. § 1915 (b)(1).
2
See, e.g., Castro Romero v. Becken, 256 F.3d 349, 354 n.2
(5th Cir. 2002) (noting the long-standing rule that pro se
pleadings must be construed liberally).

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 II. DISCUSSION

Whether § 1915 (b)(2) requires prisons to collect 20 percent

of a prisoner’s income per case filed or per prisoner is an issue

of first impression in this circuit. Two of our sister circuits

have adopted the “per case” interpretation of § 1915 (b)(2). The

Seventh Circuit, in Newlin v. Helman,3 held that “[t]he statute

does not tell us whether the 20 percent-of-income payment is per

case or per prisoner” but ultimately adopted the per case approach

because “the PLRA is designed to require the prisoner to bear some

marginal cost for each legal activity” and “[u]nless payment begins

soon after the event that creates the liability, this will not

happen.”4 The Eighth Circuit adopted this view in Lefkowitz v.

Citi-Equity Group, Inc.,5 citing Newlin and offering the same

rationale for its interpretation of 1915 (b)(2).6

The Second Circuit also concluded that “the text and structure

of § 1915 fail to provide a definitive answer” to the question of

whether 20-percent payments must be made “per case” or “per

prisoner.”.7 Disagreeing with the Seventh and Eighth Circuits, the

3
123 F.3d 429 (7th Cir. 1997) (Easterbrook, J.), overruled on
other grounds, Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000).
4
Id. at 436.
5
146 F.3d 609 (8th Cir. 1998) (Arnold, M.S., J.).
6
Id. at 612.
7
Whitfield v. Scully, 241 F.3d 264, 276 (2d Cir. 2001)
(Leval, J.).

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Second Circuit adopted the “per prisoner” approach in Whitfield v.

Scully,8 largely because “the simultaneous collection of multiple

encumbrances could potentially expose 100 percent of a prisoner’s

income to recoupment” that “could pose a serious constitutional

quandary as to whether an unreasonable burden had been placed on a

prisoner’s right of meaningful access to the courts, especially

with respect to the collection of filing fees.”9 Following the

principle that we must “avoid an interpretation of a federal

statute that engenders constitutional issues if a reasonable

alternative interpretation poses no constitutional question,” the

Whitfield court concluded that the “per case” interpretation could

render § 1915 unconstitutional and thus adopted the “per prisoner”

approach” even though this “may create less of an incentive for

prisoners not to litigate.”10

The first step in our inquiry is to determine whether the

statutory language has an unambiguous meaning. If the statutory

language is unambiguous, in the absence of a clearly expressed

legislative intent to the contrary, that language must ordinarily

be regarded as conclusive.11 We hold that the language of § 1915

(b)(1) is unambiguous and mandates that prisoners pay twenty

8
Id.
9
Id.
10
Id. at 277.
11
United States v. Emerson, 270 F.3d 203, 213 (5th Cir. 2001).

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percent of their monthly income for each case filed.

It is undisputed by the parties that the initial payment

required by § 1915(b) is imposed in each case, not once per prison

irrespective of the number of suits initiated. Indeed, the section

is limited to situations where “a prisoner beings a civil action or

files an appeal in forma pauperis,” authorizing “The court” to

assess and collect “an initial partial filing fee.”12 If “the court”

in § 1915 (b)(1) is the court in which the instant action has been

filed, irrespective of past suits, then “the court” in § 1915 (b)

(2) presumably refers to the same court. We conclude that these two

provisions are meant to be read together as part of a coherent

scheme, given that they appear next to each other in the same

section of the statute. Read as a whole, § 1915 is unambiguous. The

statute refers repeatedly to “the court,” “the district court,” and

“the trial court,” and the plain meaning of § 1915 indicates that

these terms all refer to the same court. Section 1915 authorizes

federal courts to commence suits in forma pauperis, permits the

court to collect an initial fee, and directs the court to collect

twenty percent of the prisoner’s income for monthly payments. The

“per case” interpretation is mandated by the unambiguous meaning of

the text of § 1915.

Moreover, this interpretation is consistent with the common

12
28 U.S.C. § 1915 (b)(1).

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mandate of statutory construction to avoid absurd results.13

Atchison, and the Second Circuit, presume (with good reason) that

“the court” in § 1915 (b)(2) is a single court, no matter how many

suits are filed by the prisoner. There is, of course, no reason for

this to be the case. Atchison has filed this suit in the Eastern

District of Texas, but is free to file a § 1983 action against the

President in the District of Columbia if he so desires. In that

case, if we utilize the “per prisoner” interpretation of § 1915

(b)(2), the “clerk of the court” is actually two different people.

Which clerk collects the fee? The statute does not anticipate this

result, largely because the text of the statute does not lend

itself to a “per prisoner” approach.

Atchison also argues, however, that we must adopt the “per

prisoner” interpretation to avoid potential constitutional pitfalls

that would result if 100 percent of a prisoner’s income was

collected to pay filing fees. Even if these constitutional

arguments had merit, we would be bound by the unambiguous meaning

of the text. After all, the duty to avoid constitutional questions

is not a license to rewrite the statute.14 Fortunately, however,

there are no serious constitutional questions raised here. The

Supreme Court has held that indigent persons have no constitutional

13
United States v. Orleans Parish School Board, 244 F.3d 486,
493 (5th Cir. 2001).
14
Emerson, 270 F.3d at 214.

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right to proceed in forma pauperis.15 In a decision cited by the

Second Circuit in Whitfield, the D.C. Circuit noted that states are

“constitutionally bound to provide [prisoners] with the necessities

of life, including adequate food, clothing, shelter, and medical

care.”16 Given that prisoners are not forced to choose between the

necessities of life and filing a lawsuit, it is unlikely that there

are serious constitutional questions in play here.

Accordingly, we AFFIRM the judgment of the district court.

Atchison’s motion is DENIED.

15
M.L.B. v. S.L.J., 519 U.S. 102, 119 (U.S. 1996).
16
Tucker v. Branker, 142 F.3d 1294, 1298 (D.C. Cir. 1998).

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