Tucker, Cornelius v. Branker, G.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 1998 Decided May 12, 1998

No. 96-5177

Cornelius Tucker, Jr.,

Appellant

v.

G. Branker, Captain, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 96cv00526)

Rudolph Y. Kim, student counsel, argued the cause as
amicus curiae on the side of appellant, with whom Steven H.
Goldblatt, appointed by the court, and Jose C. Escano, stu-
dent counsel, were on the briefs.

R. Craig Lawrence, Assistant U.S. Attorney, argued the
cause for appellees, with whom Mary Lou Leary, U.S. Attor-
ney at the time the brief was filed, was on the brief.

Before: Ginsburg and Tatel, Circuit Judges, and Buckley,
Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: Cornelius Tucker, until recently a
state prisoner in North Carolina, challenges the constitution-
ality of the filing-fee provision of the Prison Litigation Re-
form Act of 1995, Title VIII of the Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Pub. L. No. 104-
134, s 804, 110 Stat. 1321-66, 1321-73 (1996) (codified at 28
U.S.C. s 1915). Tucker contends that the filing-fee provision
violates his rights of access to the courts and to equal
protection of the laws, both as protected by the Due Process
Clause of the Fifth Amendment to the Constitution of the
United States.

I. Background

In 1892 the Congress gave the district courts discretion to
waive for indigents all or part of the fee normally required of
a plaintiff upon the filing of a civil action. See Act of July 20,
1892, ch. 209, 27 Stat. 252 (codified as amended at 28 U.S.C.
s 1915) (hereinafter IFP statute). In 1996 the Congress
amended the IFP statute with respect to suits filed by
prisoners, which were numerous and growing more so, based
upon the belief that most such suits were facially defective, if
not outright frivolous. As explained by one of its sponsors,
the goal of the PLRA was to reduce the number of such
meritless lawsuits:

Section 2 will require prisoners to pay a very small share
of the large burden they place on the Federal judicial
system by paying a small filing fee upon commencement
of lawsuits. In doing so, the provision will deter frivo-
lous inmate lawsuits. The modest monetary outlay will
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?

141 Cong. Rec. S7,526 (daily ed. May 25, 1995) (statement of
Senator Kyl).

The PLRA amended s 1915 in several respects relevant to
the present case. First, the statute newly requires that in
order to qualify as an indigent a prisoner must submit both
an affidavit stating that he cannot afford to pay the filing fee,
28 U.S.C. s 1915(a)(1), and a certified copy of his prison trust
fund account statement covering the most recent six months,
id. s 1915(a)(2). Second, the amended statute provides that
"the prisoner shall be required to pay the full amount of [the]
filing fee," id. s 1915(b)(1), upon the following terms. If the
prisoner cannot pay the entire fee at once, then he must pay
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.

Id. s 1915(b)(1); thereafter, whenever "the amount in [his]
account exceeds $10" the prisoner must make monthly pay-
ments equal to 20 percent of the income credited to his
account during the preceding month until the prisoner has
paid the balance of the filing fee. Id. s 1915(b)(2). If the
prisoner cannot pay all or indeed any of the initial partial
filing fee, then under the so-called "safety-valve" provision he
may still proceed with his case and pay the whole fee over
time. See id. s 1915(b)(4) ("In no event shall a prisoner be
prohibited from bringing a civil action or appealing a civil or
criminal judgment for the reason that the prisoner has no
assets and no means by which to pay the initial partial filing
fee"). Third, the statute provides that the district court
"shall dismiss" a case filed IFP if it determines that the case
"(i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief." Id.
s 1915(e)(2)(B). Finally, the PLRA retained the provision
permitting the court to award costs to a successful IFP
plaintiff, id. s 1915(f)(1) (except against the United States);

and newly provided that if the court awards costs against an
unsuccessful prisoner then the prisoner is required to pay the
costs in the same manner as the filing fee. Id. s 1915(f)(2).

On March 18, 1996, which was before the effective date of
the PLRA, Tucker filed a pro se civil action under 42 U.S.C.
s 1983 against one Captain Branker (a correctional officer at
the prison in which Tucker was incarcerated) and the Presi-
dent and Vice President of the United States, alleging that
the defendants had violated his constitutional rights by,
among other things, (1) giving him the drug Thorazine four
times a day; (2) refusing to mail "10 suits" to various courts;
and (3) housing him with tuberculosis patients who refused to
take their medicine. Tucker applied for IFP status claiming
that his only income was $20 per month, which he needed for
"bare necessities." The prison accounting department certi-
fied that as of January 12, 1996 Tucker had no money in his
prison trust account. The district court granted Tucker's
application to proceed IFP but, pursuant to former 28 U.S.C.
s 1915(d), sua sponte dismissed Tucker's complaint because it
was "without basis in law or in fact." The court denied
Tucker's motion for reconsideration and he appealed.

We permitted Tucker to proceed IFP on appeal but, be-
cause the PLRA had become effective before he filed his
notice of appeal (on May 28, 1996), we ordered him to submit
his Prisoner Trust Account Report and a Consent to Collec-
tion of Fees from Trust Account and to pay the appropriate
portion of the filing fee of $105. Tucker refused to file the
report, sign the consent form, or pay the initial fee. Instead,
Tucker moved for reconsideration, asserting that the filing-
fee provision of the PLRA is unconstitutional and requesting
appointment of counsel. Tucker claimed that he was "without
income and bare necessities of life for toiletries, stamps, [and]
hygiene items which require any and all gifts of monies" and
that he was "bankrupt."

We denied Tucker's request for counsel but we did appoint
an amicus curiae to argue that the filing-fee provision of the
PLRA is unconstitutional. Other than his original handwrit-
ten motion for reconsideration, Tucker has not filed any brief

in support of his position but rather relies upon the argu-
ments of the amicus. Although Tucker is no longer incarcer-
ated, his challenge to the PLRA remains alive, as we have
held that "release from prison does not relieve [a former
prisoner] of past due obligations under the PLRA." In re
Smith, 114 F.3d 1247, 1249 (D.C. Cir. 1997).

II. Analysis

The amicus argues on behalf of Tucker that the filing-fee
provision of the PLRA violates his due process right of access
to the courts and that it discriminates against prisoners in
violation of the equal protection component of due process.
We conclude that the filing-fee provision is constitutional.

A. Due Process

Prisoners have the right, as a matter of due process, to
adequate, effective, and meaningful access to the courts. See,
e.g., Lewis v. Casey, 116 S. Ct. 2174, 1279-80 (1996); Bounds
v. Smith, 430 U.S. 817, 822 (1977); Procunier v. Martinez,
416 U.S. 396, 419 (1974). But they do not ordinarily have a
right to cost-free access: "The correct principle is that rea-
sonable costs may be imposed on persons who want to sue."
Lumbert v. Illinois Dep't of Corrections, 827 F.2d 257, 259
(7th Cir. 1987).

The present question, therefore, is whether the filing-fee
provision of the PLRA denies prisoners effective access to the
courts. For the reasons set out below, we join five other
circuits in concluding that it does not. See Shabazz v. Par-
sons, 127 F.3d 1246, 1248-49 (10th Cir. 1997); Norton v.
Dimazana, 122 F.3d 286, 289-91 (5th Cir. 1997); Nicholas v.
Tucker, 114 F.3d 17, 21 (2d Cir. 1997); Roller v. Gunn, 107
F.3d 227, 231-33 (4th Cir. 1997); Hampton v. Hobbs, 106
F.3d 1281, 1284-86 (6th Cir. 1997).

We begin with the observation that, under the safety-valve
provision, even a destitute prisoner may file his suit if he
wants to, without having to pay any initial fee; his only
obligation is to pay the fee when and if he can, as detailed
below. 28 U.S.C. s 1915(b)(4); see Norton, 122 F.3d at 290-

91; Nicholas, 114 F.3d at 21; Roller, 107 F.3d at 233;
Hampton, 106 F.3d at 1284. Second, a prisoner with only
modest means must make only a proportionately modest up-
front payment--20% of the average monthly deposits or
balance in his account over a six-month period. Whether the
prisoner paid some or none of the fee upon filing, the balance
due is collected from him at the 20% rate only when and if
"the amount in [his] account exceeds $10." 28 U.S.C.
s 1915(b)(1) & (2); see Roller, 107 F.3d at 233; Hampton,
106 F.3d at 1284. Third, even an indigent prisoner who loses
his case and must pay the defendant's costs may do so over
time, upon the same terms as the filing fee. 28 U.S.C.
s 1915(f)(2)(B). In sum, the payment requirement of the
PLRA never exacts more than 20% of an indigent prisoner's
assets or income.

The amicus contends that Tucker challenges the PLRA
filing-fee provision "as applied" to him. Although Tucker
himself is not clear on the point we shall accept the amicus's
characterization of Tucker's challenge for the sake of the
argument. The argument is that the fee requirement denies
Tucker due process of law by forcing him to choose between
filing a lawsuit and being able to buy the necessities of life.

Although Tucker did claim (in his motion for reconsidera-
tion of our order that he submit the statement) that he is
"without ... [the] bare necessities of life," he also stated in
his application for IFP status before the district court that he
receives $20 per month. Under the formula of the PLRA,
therefore, Tucker is required to pay only $4 upon filing his
appeal and $4 per month thereafter (as long as his account
has a balance of at least $10) until the full fee of $105 has
been paid.

Tucker's claim that the minimal payments required by the
PLRA force him to choose between a lawsuit and the "neces-
sities of life" is manifestly exaggerated. First, the State of
North Carolina is constitutionally bound to provide Tucker, as
its prisoner, with the necessities of life, including "adequate
food, clothing, shelter, and medical care," Farmer v. Bren-
nan, 511 U.S. 825, 832 (1994), and Tucker does not in his

complaint or elsewhere suggest that the State is failing to do
so. Second, after paying $4 per month Tucker would still be
left with $16 per month for discretionary purchases. That
Tucker must choose whether to spend $4 on additional ameni-
ties or on his lawsuit, far from unduly burdening his access to
court, merely requires him to make the same kind of econom-
ic choice that any other would-be civil plaintiff must make.
As stated by Judge Posner:

If the inmate thinks that a more worthwhile use of his
funds would be to buy [in Tucker's case, toiletries,
stamps, and hygiene items] ... than to file a civil rights
suit, he has demonstrated an implied evaluation of the
suit that the district court is entitled to honor.

Lumbert, 827 F.2d at 260. Because Tucker is not forced to
choose between the necessities of life and his lawsuit, we
conclude that the filing-fee provision, as applied to Tucker,
does not unconstitutionally impinge upon his right of access to
the courts.

The amicus cites several pre-PLRA cases in which, under
the prior version of s 1915, the courts of appeals held that a
district court abused its discretion by requiring an indigent
prisoner to pay too great a portion of the filing fee. See, e.g.,
Olivares v. Marshall, 59 F.3d 109, 111-12 (9th Cir. 1995)
(disapproving fee of $20 for prisoner who had $14.61 in his
account, earned $14.61 per month, and received $110 from
family over six months, but upholding fee of $30 for prisoner
who received $310 from family over six months and spent $35
per month); In re Epps, 888 F.2d 964, 968-69 (2d Cir. 1989)
(reversing fee of $18.47 for prisoner with average monthly
income of $61.53). But see, e.g., Smith v. Martinez, 706 F.2d
572, 574 (5th Cir. 1983) (approving fee of $3 for prisoner who
had monthly income of between $11 and $13). See also, e.g.,
In re Williamson, 786 F.2d 1336, 1338-41 (8th Cir. 1986)
(setting standards for partial filing fees in prisoner civil rights
cases); Evans v. Croom, 650 F.2d 521, 525 (4th Cir. 1981)
(approving in part district court rule requiring payment of up
to 15% of sum received by prisoner over six month period).
Because these cases were based upon s 1915 rather than

upon the due process right of access to court and were
decided when that statute gave the district court discretion to
waive the fee, they do not lend any support to the proposition
that the PLRA is unconstitutional as applied to Tucker.

One due process case does lurk among those the amicus
cites, namely, In re Green, 669 F.2d 779 (D.C. Cir. 1981).
There, however, the facts were extreme: the district court
required the indigent plaintiff to pre-pay not only the full
filing fee but also a $100 deposit against costs he might be
assessed. Id. at 784-86. The percentage-based scheme of
the PLRA is, as we have seen, much less burdensome and for
that reason constitutional.

The amicus also argues that cases such as M.L.B. v. S.L.J.,
117 S. Ct. 555 (1996), and Boddie v. Connecticut, 401 U.S. 371
(1971), require that Tucker be allowed to file his civil suit
without having to pay any part of the filing fee, either initially
or in installments. The amicus, however, reads those cases
too broadly. In general, the Supreme Court has held that
due process does not require that filing or other fees be
waived for indigent civil litigants. See Ortwein v. Schwab,
410 U.S. 656, 659-60 (1973) (per curiam) (state may require
indigent to pay fee for review of decision reducing welfare
benefits); United States v. Kras, 409 U.S. 434, 443-46 (1973)
(indigent may be required to pay fee to file for bankruptcy).
The Court has held that either the equal protection clause or
the due process clause requires that certain fees be waived
for indigent defendants in criminal cases, see, e.g., Griffin v.
Illinois, 351 U.S. 12, 18-19 (1956) (plurality opinion) (holding
unconstitutional requirement that criminal defendant pay for
transcript in order to appeal conviction), and for indigent
litigants in civil cases in which certain fundamental interests
are at stake, see, e.g., M.L.B., 117 S. Ct. at 564-67 (state
cannot require indigent mother to pay record preparation fee
in order to challenge state's decision to terminate her paren-
tal rights); Boddie, 401 U.S. at 376-82 (because of fundamen-
tal nature of marriage and exclusivity of state remedy, state
may not require indigents to pay filing fee for divorce pro-
ceedings). M.L.B. and Boddie are clearly inapposite to this
civil case. Tucker's claims do not involve fundamental family-

related concerns, see M.L.B., 117 S. Ct. at 563-64 ("the Court
has consistently set apart from the mine run of cases those
involving state controls or intrusions on family relationships").
And, as discussed above, the filing-fee provision of the PLRA
"does not present the sort of insurmountable barrier to filing
suit considered in those cases." Roller, 107 F.3d at 232 n.1.

Finally, the amicus argues that the PLRA denies indigent
prisoners due process because it requires the district court
sua sponte to dismiss an IFP case that "fails to state a claim
on which relief may be granted." 28 U.S.C.
s 1915(e)(2)(B)(ii). At least one circuit judge has expressed
the view that this provision is unconstitutional. Mitchell v.
Farcass, 112 F.3d 1483, 1490-93 (11th Cir. 1997) (Lay, J.
concurring). Tucker, however, does not have standing to
raise this argument (and neither, therefore, has the amicus)
because the district court did not dismiss Tucker's complaint,
pursuant to the statute as amended, for failure to state a
claim. Rather, the district court dismissed Tucker's com-
plaint, pursuant to the prior version of s 1915, as frivolous;
the PLRA was not yet in force.

For the foregoing reasons we hold that the filing-fee provi-
sion of the PLRA does not violate Tucker's due process right
of access to the courts.

B. Equal Protection

The amicus argues that the filing-fee provision of the
PLRA violates the equal protection component of the due
process clause because it discriminates against prisoners.
Again, we join four other circuits in concluding that the
PLRA does not deny prisoners the equal protection of the
law. See Lucien v. DeTella, ___ F.3d ____, 1998 WL 169763,
at *1 (7th Cir. Apr. 13, 1998); Nicholas, 114 F.3d at 19-21;
Mitchell, 112 F.3d at 1487-89; Roller, 107 F.3d at 233-34;
Hampton, 106 F.3d at 1286-87.

Initially we reject the amicus's argument that the filing-fee
provision is subject to strict scrutiny because it substantially
burdens a prisoner's fundamental right of access to the
courts. A legislative classification that does not burden ei-

ther a fundamental right or a suspect class must be reviewed
under the rational basis test. See Vacco v. Quill, 117 S. Ct.
2293, 2297 (1997); Heller v. Doe, 509 U.S. 312, 319 (1993);
New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam).
We have already determined that the filing-fee provision of
the PLRA does not burden a prisoner's right of effective
access to the courts. See Part II.A above; see also Nicholas,
114 F.3d at 20; Roller, 107 F.3d at 233; Hampton, 106 F.3d
at 1286. Nor do prisoners or indigents constitute a suspect
class. See Harris v. McRae, 448 U.S. 297, 323 (1980) (indi-
gents not a suspect class); Nicholas, 114 F.3d at 20 (prison-
ers not a suspect class); Roller, 107 F.3d at 233 (neither
prisoners nor indigents a suspect class). Therefore, strict
scrutiny is inappropriate and we apply the rational basis test.

A classification passes that test "if there is a rational
relationship between the disparity of treatment and some
legitimate governmental purpose." Heller, 509 U.S. at 320.
Even if the legislature does not articulate the purpose under-
lying the distinction, we must uphold it " 'if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification.' " Id. (quoting Federal
Communications Comm'n v. Beach Communications, Inc.,
508 U.S. 307, 313 (1993)).

The filing-fee provision of the PLRA certainly passes the
rational basis test. The Congress, which obviously has a
legitimate interest in keeping meritless litigation out of the
federal courts, could reasonably have concluded that much of
the increasing volume of litigation that prisoners bring is
indeed meritless. The courts themselves are well aware of
that fact. See, e.g., Nicholas, 114 F.3d at 20 ("federal courts
spend an inordinate amount of time on prisoner lawsuits, only
a very small percentage of which have any merit"); Hamp-
ton, 106 F.3d at 1286 (prisoner claims, "many of which are
meritless," are "skyrocketing" in number). Therefore, the
Congress legitimately could have determined that requiring
indigent prisoners to pay the ordinary filing fee, even if they
could do so only over time, would decrease the amount of
meritless litigation by causing prisoners to internalize the
cost of filing their lawsuits.

Moreover, there are rational reasons for treating prisoners
and non-prisoners differently: First, as noted above, a prison-
er's basic necessities are paid for by the state; unlike other
indigents, therefore, a prisoner is not forced to choose be-
tween such necessities and his lawsuit. See Nicholas, 114
F.3d at 20; Roller, 107 F.3d at 234. Second, perhaps because
prisoners have too much time on their hands, litigation has
for many become a pastime, see Nicholas, 114 F.3d at 20;
Mitchell, 112 F.3d at 1489; Roller, 107 F.3d at 234; that is,
just another form of recreation for which the taxpayers foot
the bill. Third, because prisons have some measure of con-
trol over a prisoner's funds, the requirement of making post
hoc installment payments is easier to administer and enforce
with respect to indigent prisoners than it would be with
respect to indigents at large. See Roller, 107 F.3d at 234.

The amicus's argument that the filing-fee provision fails
the rational basis test relies almost exclusively upon Rinaldi
v. Yeager, 384 U.S. 305 (1966). According to the amicus that
case stands for the proposition that the Congress cannot treat
indigent prisoners with meritorious claims the same way it
treats indigent prisoners with meritless claims. The New
Jersey statute at issue in Rinaldi initially provided every
indigent criminal defendant with a free trial transcript for the
purpose of his direct appeal, but then required only defen-
dants who lost their appeals and who were sentenced to
prison to reimburse the state for the cost of the transcript.
The Supreme Court held that the statute violated the equal
protection clause because it discriminated irrationally against
unsuccessful appellants who were prisoners--as compared to
unsuccessful appellants who received a suspended sentence,
or probation, or were fined. 384 U.S. at 308-09. Insofar as
the purpose of the statute was simply to recoup the State's
expenditure, the Court said:

To fasten a financial burden only upon those unsuccessful
appellants who are confined in state institutions ... is to
make an invidious discrimination.

Id. at 309. The only other purpose of the statute advanced
by the State was to deter frivolous appeals. To this sugges-
tion the Court responded:

By imposing a financial obligation only upon inmates of
institutions, the statute inevitably burdens many whose
appeals, though unsuccessful, were not frivolous, and
leaves untouched many whose appeals may have been
frivolous indeed.

Id. at 310.

As we understand Rinaldi it does not control this case.
The Court in Rinaldi concluded that the New Jersey statute
was irrational in relevant part because there was only a weak
association between failure and frivolity among direct appeals
of a criminal conviction. Indeed, in our experience most
unsuccessful appeals are not frivolous; they are just unper-
suasive. Here, however, the Congress could rationally have
found that most civil litigation initiated by indigent prisoners
is meritless. Not only do prisoners have a lower opportunity
cost for their time than other indigent (and in all likelihood,
non-indigent) litigants, see Mitchell, 112 F.3d at 1489, but
experience shows that their cases are in fact more often than
not meritless. For example, during the debate on the PLRA
Senator Hatch reported:

In 1994, over 39,000 lawsuits were filed by inmates in
Federal courts, a staggering 15 percent increase over the
number filed the previous year. The vast majority of
these suits are completely without merit. Indeed, rough-
ly 94.7 percent are dismissed before the pretrial phase,
and only a scant 3.1 percent have enough validity to
reach trial.

141 Cong. Rec. S14,418 (daily ed. Sept. 27, 1995); see also
Judicial Business of the United States Courts: Annual Re-
port 153 (1997). These figures could lead a rational legislator
to conclude that a large portion of prisoner litigation in
particular is without merit. Therefore, unlike the statute in
Rinaldi requiring reimbursement by prisoners who lose their
criminal appeal but not by other unsuccessful appellants,
making the filing-fee provision of the PLRA applicable to
indigent prisoners but not to other indigent civil plaintiffs has
a rational basis and does not violate the equal protection
component of due process.

III. Conclusion

In sum, we hold that the filing-fee provision of the PLRA
does not violate either the appellant's due process right of
access to the courts or his right to the equal protection of the
laws. Accordingly, Tucker is required either to pay the
appropriate filing fee or to suffer his case to be dismissed.

So ordered.