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Ninth Circuit:
Prisoners, Filing Jointly, Must Each Pay Mandated Filing Fee
Opinion Says Statute Allowing Inmates to Proceed in Forma Pauperis Does Not Permit Plaintiffs to Split $350 Charge for Initiating Litigation, Drawing Dissent Over ‘Absurd Results’
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday, in a 2-1 decision, that the Prison Litigation Reform Act of 1995 which, to address concerns over the increasing number of detainee lawsuits, added a provision requiring prisoners proceeding in forma pauperis to pay a $350 filing fee in order to initiate legal action, allows inmates to join in a lawsuit together against a common defendant so long as each plaintiff pays the required charge.
At issue is 28 U.S.C. §1915(b), which provides:
“(1)…if a prisoner brings a civil action…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…the average monthly deposits to the prisoner’s account; or…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.”
Subdivision (b)(2) allows for a monthly payment plan to collect the full fee if a partial amount is collected at the outset and (b)(3) specifies that “[i]n no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action.” Under subsection (b)(4), an inability to pay the initial partial fee will not prevent a party from seeking legal action.
Sec. 1914 sets the filing fee at $350.
In July 2022, two inmates—Topaz Johnson and Ian Henderson—jointly filed a complaint, together with another prisoner who is not party to the appeal, against the High Desert State Prison, asserting Eighth Amendment claims under 42 U.S.C. §1983.
They allege correctional officers forced them to stand in “dirty, urine smelling, holding cages in handcuffs” for nearly nine hours, causing them lower back pain, blistering on the bottom of their feet, and emotional pain.
Joinder Denied
During a statutorily required screening of the pleading, Magistrate Judge Edmund F. Brennan of the Eastern District of California denied the inmates’ request for permissive joinder, under Federal Rule of Civil Procedure 20, and informed the prisoners that they could each proceed with their claims in separate lawsuits.
District Court Judge Troy L. Nunley (now chief judge) of that district adopted Brennen’s findings and recommendations. He concluded that because §1915(b) “expressly requires” prisoners proceeding in forma pauperis to each pay the full filing fee, such inmates may not bring a joint action as the initiation cost of the suit would exceed the statutory ceiling of $350.
Nunley also held that lawsuits brought by multiple pro se prisoners are incompatible with Rule 20 because such cases present issues of “delay and confusion” due to the fact that one of the inmates might be transferred or released or face difficulties in communicating while in prison.
In an opinion authored by Circuit Judge Consuelo M. Callahan, and joined in by Circuit Judge Lawrence VanDyke, the court reversed the ensuing dismissal of the action, saying “[w]hile §1915(b) requires prisoners to each pay the full filing fee to commence an action, the statute poses no obstacle to prisoners joining in a lawsuit.”
Senior Circuit Judge Susan P. Graber agreed that Nunley erred in denying the prisoners’ request for permissive joinder but dissented as to the holding that each plaintiff must pay the filing fee.
Callahan’s View
Callahan noted that “[i]n the district court’s view, because ‘the full amount of a filing fee’ for commencing an action is $350, if both Henderson and Johnson paid this amount—as required under subsection (b)(1)—then the ‘filing fee collected’ from them together would exceed the $350 amount prohibited by subsection (b)(3).”
Unpersuaded, she explained:
“This interpretation of §1915(b) was incorrect. For starters, it switched midstream whether the fee-collecting scheme applied to one prisoner or multiple prisoners. When interpreting subsection (b)(1), the district court held that prisoners proceeding [in forma pauperis] must each pay the full filing fee. But then when interpreting subsection (b)(3), the court changed course and held that the statute considers collecting fees from multiple prisoners. However, there is ‘scant indication that the statute’s perspective shifts partway through.’ Section 1915(b) contemplates a ‘per-litigant approach,’…and subsection (b)(3) governs collecting fees from an individual prisoner no matter how many join in a lawsuit.”
She opined that “[w]e know this because §1915(b)’s subsections ‘stubbornly require’ courts to assess and collect filing fees based on an individual prisoner’s financial circumstances,” and remarked:
“By analyzing subsections (b)(1) and (b)(3) as though they exist separately from subsections (b)(2) and (b)(4), the district court by definition did not consider the statute’s ‘sequencing,’….When read in context, we see that subsection (b)(3) works in tandem with subsection (b)(4) [and]….[b]oth subsections ensure that ‘[i]n no event shall’ the filing fee…‘exceed the amount of fees permitted by statute,’ or that a prisoner be prohibited from bringing a civil action even if ‘the prisoner has no assets and no means by which to pay the initial partial filing fee.’ Subsections (b)(1)–(2) thus set up the payment system, and subsections (b)(3)–(4) ensure that courts properly administer the system….And this system contemplates collecting fees from one prisoner at a time, so the ‘filing fee collected’ in (b)(3) sensibly refers to the filing fee paid by each prisoner under (b)(1)–(2).”
Saying that “[w]e do not write today’s decision on a blank slate,” she noted that other circuits have come to the same conclusion that each prisoner must pay the full filing fee and cannot split the cost when proceeding under §1915(b).
Permissive Joinder
As to joinder, she said:
“The district court’s conclusion that Plaintiffs were barred from joinder because of the ‘interplay of the filing fee provisions in the [Act]’ was wrong as a matter of law and thus constitutes an abuse of discretion….The [Act] poses no statutory obstacle to prisoners joining together in a lawsuit under §1915. Prisoners may join in a lawsuit and proceed together under §1915 so long as they each pay ‘the full amount of a filing fee.’ ”
Addressing Nunley’s other concerns, she remarked:
“While a district court has ‘broad discretion’ in applying Rule 20[]…, the court here abused its discretion when basing its decision on hypothetical concerns that were without support in the record….Indeed, the district court based its decision on no evidence at all, which necessarily is an abuse of discretion.”
The jurist added:
“Through enacting §1915(b), Congress gave prisoners two options: they can either file suit under §1914 like ‘ordinary, non-indigent plaintiffs’ and pay the filing fee upfront by splitting the total amount however they choose, or they can file suit under §1915 and each pay ‘the full amount of a filing fee’ by making ‘monthly payments…until the filing fees are paid[]’….”
Graber’s View
Graber wrote:
“I agree with the majority opinion that the [Act] does not prohibit prisoners from proceeding jointly under 28 U.S.C. §1915 and that the district court abused its discretion when it denied Plaintiffs’ request for permissive joinder. But, for three reasons, I respectfully dissent from the holding that each plaintiff must pay a filing fee. In my view, the [Act] provides for only one filing fee per civil action. First, the [Act’s] text strongly suggests that only one fee per action is owed. Second, if the statutory text is ambiguous, then the usual rule—one fee per action, which co-plaintiffs may share—applies. Third, the majority opinion’s ruling produces absurd results.”
She continued:
“Subsection (b)(1) describes how a filing fee is to be paid ‘if a prisoner brings a civil action.’ (Emphasis added.) That wording, with ‘prisoner’ in the singular, does not explicitly address, one way or another, what happens when ‘prisoners’ in the plural bring ‘a’ single, joint civil action. But subsection (b)(3) provides, in no uncertain terms: ‘In no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action.’ (Emphases added.) The commencement of ‘a’ single civil action requires the payment of a single filing fee. The statute absolutely forbids a district court from collecting even a penny more than the full amount of the usual fees permitted by statute for the commencement of ‘a’ civil action. A civil action brought by more than one plaintiff remains ‘a’ civil action in the singular. And ‘in no event’ means exactly that.”
The jurist pointed to the consequences of the majority’s holding, saying:
“Non-indigent prisoners who file a joint action pay a single fee. The majority opinion’s reading of the statute means that indigent prisoners—those who have less or no money—would pay more than prisoners who have more money. That is a perverse result. More importantly, my reading of the statute is faithful to the Congressional intention that prisoners ‘pay the fees that normally accompany the filing of a lawsuit,’….The fees that normally accompany the filing of a single lawsuit comprise, of course, a single filing fee.”
The case is Johnson v. High Desert State Prison, 23-15299.
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