Johnson v. McNeil

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-30177

CLEANARD J. JOHNSON,

Plaintiff-Appellee,

VERSUS

R. McNEIL; F. JOHNSON; C. MARTIN LENSING,
Warden, Hunt Correctional Center,

Defendants-Appellants.

Appeal from the United States District Court
For the Middle District of Louisiana
June 28, 2000
Before KING, Chief Judge, GARWOOD and DeMOSS, Circuit Judges.

PER CURIAM:

After the district court granted summary judgment in favor of

Defendants Raymond McNeil, Frank Johnson, and C.M. Lensing in

Plaintiff Cleanard J. Johnson’s pro se civil rights lawsuit,

Defendants sought to garnish costs from Plaintiff’s prison trust

account pursuant to 28 U.S.C. § 1915(f)(2)(B). The magistrate

judge denied their motion, and the district court affirmed on

appeal. Defendants now seek review of that decision before this

court. Because the clear language of the statute allows for and
does not prohibit Defendants’ request, we vacate and remand.

I.

Plaintiff, a Louisiana prisoner, brought suit under 42 U.S.C.

§ 1983 for injuries sustained while he was incarcerated at Hunt

Correctional Center (“HCC”) in Louisiana and was allowed to proceed

in forma pauperis (“IFP”). He sued Defendants, who were all HCC

personnel, alleging that he was exposed to mace when McNeil sprayed

another inmate in a nearby cell. Upon recommendation by a

magistrate judge, the district court granted Defendants’ unopposed

motion for summary judgment. Plaintiff did not appeal that ruling.

Subsequently, Defendants moved to tax costs and were awarded

$24. They then asked for an order to garnish Plaintiff’s prison

trust account pursuant to 28 U.S.C. § 1915(f)(2)(B). The

magistrate denied Defendants’ motion, concluding that

§ 1915(f)(2)(B) only provides the court, and not prevailing

parties, with a mechanism for collection of costs. In a one-

sentence decision, the district court affirmed the magistrate’s

order. This appeal followed.

II.

Section 1915 pertains to IFP proceedings. Under subsection

(f)(1) of that statute, “[j]udgment may be rendered for costs at

the conclusion of the suit or action as in other proceedings . . .

.” “If the judgment against a prisoner includes the payment of

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costs under this subsection, the prisoner shall be required to pay

the full amount of the costs ordered.” 28 U.S.C. § 1915(f)(2)(A).

And a “prisoner shall be required to make payments for costs under

this subsection in the same manner as is provided for filing fees

under subsection (a)(2).” 28 U.S.C. § 1915(f)(2)(B).

Subsection (f)(2)(B)’s reference to subsection (a)(2) is a

scrivener’s error as the reference should be to subsection (b)(2).1

Subsection (a)(2) merely states that a prisoner bringing suit shall

submit a certified copy of his trust fund account statement, while

subsection (b)(2) actually provides a mechanism for the payment of

filing fees. That latter subsection provides:

After 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.

In its decision, the magistrate judge correctly observed the

typographical error in subsection (f)(2)(B), but nonetheless found

that Defendants could not utilize the payment method outlined in

subsection (b)(2) to recover their costs. Reading subsection

(b)(2) in conjunction with subsection (b)(1),2 the magistrate judge

1
Defendants do not challenge this finding. Other courts have
also ruled that the reference to subsection (a)(2) is a mistake.
See, e.g., Talley-Bey v. Knebl, 168 F.3d 884, 886-87 (6th Cir.
1999).
2
Subsection (b)(1) provides:
Notwithstanding subsection (a), if a prisoner brings a

3
concluded that only the costs of the court could be paid off via

the method stated in subsection (b)(2). He inferred that “Congress

enacted these provisions to provide the court with a mechanism to

collect its fees and costs, which have historically gone

uncollected,” while prevailing parties have always had a state law

mechanism through which to collect costs taxed in their favor.

Defendants counter that the magistrate judge erred in ignoring

the clear wording of subsection (f) and in creating limitations

that are nowhere in the statute. They allege that § 1915 does not

restrict the term “costs” to costs owed to the court. To support

their contention, Defendants allude to the fact that subsection

(f)(1) allows a prevailing party to have “costs” taxed in its

favor. And they allude to the fact that subsection (f)(2)(A)

specifically makes a prisoner liable for the full amount of the

“costs” taxed. In light of these facts, Defendants wonder how the

term “costs” in subsection (f)(2)(B) can be so different than as it

is used in the other two subsections.

Furthermore, Defendants argue that the fact that they may get

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

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their costs via a state procedure is of no significance since even

the court may utilize the state system to collect costs taxed in

its favor. They maintain that through the PLRA, Congress created

a simpler system by which costs may be collected from prisoners and

that both the courts and prevailing parties should be able to

benefit from that system. In addition, Defendants assert that

allowing prevailing parties to collect via subsection (b)(2) better

effectuates the purpose of the PLRA to deter “frivolous prisoner

litigation by instituting economic costs for prisoners wishing to

file suits.” Patton v. Jefferson Correctional Ctr., 136 F.3d 458,

464 (5th Cir. 1998). They contend that a simplified system of

collecting costs more effectively exacts the economic costs that

ought to be on the minds of litigating prisoners.

We have never addressed the present issue on appeal, and very

few courts have even remotely touched upon it. The three circuits

that have discussed § 1915(f)(2)(B) have all, in dicta, implied

that the same filing fee payment method stated in subsection (b)(2)

may be utilized to pay any costs assessed against an IFP prisoner.

See Feliciano v. Selsky, 205 F.3d 568, 572 (2d Cir. 2000); Talley-

Bey v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Tucker v. Branker,

142 F.3d 1294, 1298 (D.C. Cir. 1998).

Utilizing the canons of statutory interpretation, we likewise

conclude that prevailing parties may recover costs via the method

prescribed in subsection (f)(2)(B), i.e., subsection (b)(2). “In

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a statutory construction case, the beginning point must be the

language of the statute, and when a statute speaks with clarity to

an issue judicial inquiry into the statute’s meaning, in all but

the most extraordinary circumstance, is finished.” Estate of

Cowart v. Nicklos Drilling, Co., 112 S. Ct. 2589, 2594 (1992)

(citing Demarest v. Manspeaker, 111 S. Ct. 599, 603 (1991)).

Section 1915(f)(2)(B) clearly indicates that a “prisoner shall be

required to make payments for costs under this subsection in the

same manner as is provided for filing fees under subsection

[(b)(2)].” Nowhere in the rest of the statute does it define

“costs” as costs to the court. Indeed, the same language in a

single statutory provision cannot have two different meanings, see

Davis v. Davis (In re Davis), 170 F.3d 475, 480 (5th Cir. 1999)

(citing Sullivan v. Stroop, 110 S. Ct. 2499, 2504 (1990)), cert.

denied, 120 S. Ct. 67 (1999), and “costs” throughout the rest of

§ 1915 has a general meaning, without any apparent limitations.

Thus, the definite import from subsection (f)(2)(B) is that

prevailing parties may recover their costs through the method

described in subsection (b)(2).

And although the magistrate judge did not solely focus on

subsection (b)(2), but read that subsection together with

subsection (b)(1) to conclude that recovery of costs was limited to

the court, that determination read too little into those

subsections and must also fail. Admittedly, subsections (b)(1) and

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(b)(2) refer to collection of filing fees by the court, and not any

other entity. But that does not mean that the 20 percent method of

paying fees stated in those provisions is limited to just paying

fees or costs to the court or that the method could not be utilized

to pay off costs to parties other than the court. Subsection

(b)(1) only refers to the court’s ability to collect filing fees

because that entity is the normal authority that collects such

costs. It is not inconceivable to think that when subsection

(f)(2)(B) referred to the 20 percent method of payment, that

subsection was referring to the form of payment and not necessarily

the fact that under subsection (b)(1) the court was the only one

recovering fees. That is, the reference in subsection (f)(2)(B)

was to the method of deducting from the prisoner’s trust account 20

percent of the preceding month’s income, rather than the court’s

ability to assess and collect fees for itself.3 Thus, we conclude

that the term “costs” in § 1915(f)(2)(B) is not limited to costs to

the court, but may also include costs awarded to prevailing

parties, and that those parties may utilize the method of payment

stated in subsection (b)(2) to collect their awarded costs.

Accordingly, in this Circuit, when costs, either at the

district or appellate level, are awarded to a prevailing party

against an IFP prisoner, that prisoner shall be required to make

3
In any case, subsection (f)(2)(B) as interpreted by the
magistrate judge and other circuit courts only refers to subsection
(b)(2), and not subsection (b)(1).

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payment pursuant to the manner outlined in subsection (b)(2). In

the case of appellate costs, a prevailing party may be awarded

costs after a judgment for costs has been rendered in its favor4

and it files a bill of costs with the clerk of this court within

the time prescribed by Federal Rule of Appellate Procedure 39(d).5

Upon the clerk’s approval of the bill of costs and issuance of the

mandate, the clerk shall forward a copy of this opinion and the

approved bill of costs to the custodial institution for collection

pursuant to subsection (b)(2). At the district court level, a

prevailing party may be awarded costs after a judgment for costs

4
Under Rule 39(a) of the Federal Rules of Appellate Procedure,
the following rules apply to a judgment of costs unless the law
provides or the court orders otherwise:
(1) if an appeal is dismissed, costs are taxed against
the appellant, unless the parties agree otherwise;
(2) if a judgment is affirmed, costs are taxed against
the appellant;
(3) if a judgment is reversed, costs are taxed against
the appellee;
(4) if a judgment is affirmed in part, reversed in part,
modified, or vacated, costs are taxed only as the court
orders.
5
Rule 39(d) provides:
(1) A party who wants costs taxed must – within 14 days
after entry of judgment – file with the circuit clerk,
with proof of service, an itemized and verified bill of
costs.
(2) Objections must be filed within 10 days after service
of the bill of costs, unless the court extends the time.
(3) The clerk must prepare and certify an itemized
statement of costs for insertion in the mandate, but
issuance of the mandate must not be delayed for taxing
costs. If the mandate issues before costs are finally
determined, the district clerk – upon the circuit clerk’s
request – add the statement of costs, or any amendment of
it, to the mandate.

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has been rendered in its favor and it complies with the necessary

procedures and filings as required by the Federal Rules of Civil

Procedure and each respective district court’s Local Rules.

The custodial institution may use its current procedures for

collecting filing fees pursuant to subsection (b)(2) to collect

costs awarded to a prevailing party. That is, in any one month the

amount in an inmate’s trust fund account exceeds $10, the

institution shall deduct 20% of the previous month’s income

credited to the account. See 28 U.S.C. § 1915(b)(2). This shall

be in addition to any deductions made to pay filing fees that the

inmate might owe. It is of no consequence that these deductions

might cause the account balance to drop below $10. See McGore v.

Wrigglesworth, 144 F.3d 601, 606 (6th Cir. 1997) (finding, in cases

involving filing fees, no violation where the two rules converge to

reduce a trust fund’s balance below $10). The institution shall

forward the money collected for costs to the prevailing party.

Because the amounts collected frequently will be small, the

institution need not issue monthly checks for a very small amount,

but may allow the fund to accumulate for a period of time.

Further, if the prevailing party is entitled to costs from more

than one inmate (for example, where the state attorney general’s

office has defended prison officials and been awarded costs in

numerous civil rights cases), the institution may combine the

payments in one check, clearly specifying how much is to be

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credited to each case. Finally, in those months the institution

collects no money from an inmate who owes costs, the institution

does not need to report monthly to the prevailing party about

collection efforts.6

For the foregoing reasons, the order of the district court is

vacated and the case is remanded for further proceedings consistent

with this opinion.

6
The institutions might also find it advisable upon receiving
an award of costs to notify the prevailing party that payments
likely will be small, sporadic, and paid over a long period of
time.

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