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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 11

- 3996

_______________

MICHAEL E. SILUK, J R

., Appellant

v.

CATHERINE MERWIN, Director of Perry Co unty Domestic Relations Section

________________

Appeal from the United States District Court

for the Middle District of Pennsylvania ( Civil Action No. 1

- 11

- cv

- 01654 ) District Judge: Honorable Judge Christopher C. Conner

________________

Argued: May 21, 2014

Before : MCKEE, Chief Judge

and CHAGARES

, GARTH, Circuit Judges

(Opinion filed : April 10 , 2015 )2 Paige H. Forster (argued) 1 Patrick M. Emery, Esq.

Reed Smith LLP

225 Fifth Avenue Pittsburgh, PA 15222

Gregory B. Jordan, Esq.

PNC

30th Floor

249 Fifth Avenue

One PNC Plaza Pittsburgh, PA 15222

Counsel for Appellant

Jeffrey E. Sandberg (argued) United States Department of Justice Appellate Section, Civil Division

Room 7214 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

Counsel for Amicus Curiae

________ ________

OPINION OF THE COURT

________________

McKEE, Chief Judge

We are asked to interpret provisions of the Prison Litigation Reform Act ( “ PLRA ” ) requiring federal prisons to

w ithdraw certain amounts from prisoner trust accounts to pay

1 The attorneys for the appellant are appearing pro bono following a prior order granting appellant’s motion to proceed in forma pauperis . The judges of this court express our gratitude to those attorneys for accepting this matter pro bono and for the quality of their representation of their client. We also thank Reed Smith, LLP and PNC for permitting them to

offer their service. Lawyers who act pro bono fulfill the highest service that members of the bar can offer to needy parties and to the legal profession.3 court filing fees. Although the amount of money involved may seem insignificant, the issue is of the utmost importance

because it impact s indigent prisoners’ access to the courts and it has resulted in a conflict among the Courts of Appeals

. 2

Under the PLRA

, 3 a priso ner who files a civil complaint or an appeal in the f ederal courts is req u ired to pay
the full amount of the filing fee even if s/he is filing in forma pauperis (“I FP”)

. 4 Pursuant to 28 U.S.C. § 1915(b)( 2 ), a fter making an initial payment, a prisoner must make monthly payments in the amount of 20 percent of the preceding
month’s income until the filing fee is paid

.

Michael Siluk is an indigent state prisoner who was allowed to file IFP in t he district c ourt and this C ourt . He currently owes a filing fee to both courts ($350 to the Clerk of the District Court and $505 to the Clerk of this Court for his appeal)

. Siluk argues that § 1915(b)(2) only requires a 20

- percent deduction from his prison account each month until

both fees are paid

, and that the ded uctions should be made i n the order in which they were incurred ( referred to as

“ sequential collection ,” “sequential recoupment,” or “per inmate approach ” ) . The government argues that § 1915(b)

requ ires that a monthly 20

- percent deduction must be made

con currently for fees owed in both courts until the fees are paid ( referred to as “concurrent recoupment,” “simultaneous recoupment,” or “per case approach ” ) . The latter interpretation would result in a 40

- percent deduction from

2 See infra notes 18 and 26.

3 Title VIII of Pub. L. No. 104

- 134, 100 Stat. 1321 (1996), amending 28 U.S.C. § 1915 et se q.

4 28 U.S.C. § 1915(b)(1). The IFP statute “is designed to ensure that indigent litigants have meaningful access to the
federal courts.” Neitzke v. Williams

, 490 U.S. 319, 324 (1989) (emphasis added). “Congress enacted the in forma pauperis statute t o ensure that administrative court costs and filing fees, both of which must be paid by everyone else who files a lawsuit, would not prevent indigent persons from pursuing meaningful litigation.” Deutsch v. United States , 6 7 F.3d 1080, 1084 (3d Cir. 1995)

.4 Siluk’s account each month t hat would continue until both

fees are completely paid.

On January 11, 2013 this C ourt entered an order which among other things gr anted Siluk’ s motion to proceed IFP; referred the petition to combine payments to a merits panel;

and directed the Clerk of the Court to appoint pro bono

counsel on behalf of Siluk to “ address whether the Prison Litigation Reform Act requires recoupment of multiple encumbrances sequentially or simultaneously

. ” For the reasons that follow, we conclude that Congress intended to

cap the monthly debit for filing fees at 20 per cent of a prisoner’ s monthly income , even where, as here, an inmate owes more than one filing fee. 5

5 We have jurisdiction to review a district court’s final order

under 28 U.S.C. § 1291. Although Siluk is appealing the order dismissing his complaint under Rule 12(b)(6), as well as the court’s denial of his motion to consolidate court fees, we only n eed to discuss the latter issue. The District Court thoroughly and carefully explained that Siluk’s claim against an officer of the Commonwealth of Pennsylvania is barred by

the Eleventh Amendment of the United States Constitution.

The Eleventh Amendment “bar[s] suits for monetary damages by private parties in federal court against a state or against state agencies. It also bars a suit against state officials in their official capacity, because the state is the real party in interest inasmuch as the plai ntiff seeks recovery from the state treasury.” Melo v. Hafer , 912 F.2d 628, 635 (3d Cir. 1990) (internal citations omitted).

“A ll courts and agencies of the [Pennsylvania unified judicial system] are part of the Commonwealth government

. . . [and]

enti tled to Eleventh Amendment immunity.” Haybarger v. Lawrence Cnty. Adult Prob. & Parole , 551 F.3d 193, 198 (3d Cir. 2008) (citation omitted); Pa. Const. a rt. V , § 1. County domestic relations sections are part of the unified judicial
system. 42 P A

. C ONS

. S TAT

. A NN

. § 961. Accordingly, Merwin, in her official capacity as Director of the Perry County Domestic Relations Section

, is entitled to Eleventh Amendment immunity. Melo , 912 F.2d at 6

.5 I. Factual Background

When this suit was filed, Siluk was an inmate at the

State Correctional Institution at Rockview (“SCI Rockview”)

. He had filed various actions in state court claiming t hat state authorities had wrongfully intercepted his federal income tax refund and applied it to a child

- support arrearage he allegedly

owed . After Siluk’s s tate court l itigation pro ved unsuccessful, he filed this pro se complaint in federal district

court , alleging that Catherine Merwin

- - the Director of Perry County Domestic Relations Section

- - had deprived him of

his federal tax refund

, in violat ion of the Fourteenth

Amendment. T he D istrict C ourt granted Siluk’s motion to proceed IFP and ordered the collection of a n initial partial filing fee

, followed by monthly installment s as required by § 1915(b)

. 6 T he court subsequently dismissed Siluk’s

co mplaint pursuant to F ederal Rule of Civil P rocedure 12(b)(6)

. 7

Siluk appealed and applied to proceed IFP before us.

H e also filed a motion to combine payment of his filing fees

which the district court denied

. Siluk seeks to make one

combined payment of 20 percent of his pr ison account deposits, rather than a 40

- percent deduction ( 20 percent for each fee owed)

, as urged by the government

. The sequential collection he requests would postpone collection of the filing fee for this appeal until after his filing fee has been

com pletely paid to the d istrict c ourt.

Siluk maintains that sequentially debiting his inmate

account will leave him with sufficient funds to maintain a minimum quality of life that would otherwise be jeopardized

. He purportedly lives o n prison wages of aro und $40.00 a month after the 20

- percent deduction of the D istrict Court filing fee

. According to Siluk , he is required to pay for such

items as: “soap, shampoo, razors, [and] deodor ant” to

6 As of the filing of his appellate brief, SCI Rockview has

remit ted eleven partial payments, totaling $119.98, toward Siluk’s $350.00 District Court filing fee. Appx. 68

- 88

.

7 See Siluk v. Merwin , No. 11

- 1654, 2011 WL 4738147 (M.D. Pa. Sept. 16, 2011).6 maintain basic hygiene. 8 Siluk must also pay for the cost of

proc eeding in this matter . He claims that those costs include
such incidentals as “ paper, pens, copies, carbon paper, [and]
mail.” 9

II

. Statutory Background

Under 28 U.SC. § 1915

, federal courts are authorized to allow indigent persons, including prisoners , to pursue litigation without pre

- paying fees and costs

. 10 Congress
enacted the IFP statute “to ensure that administrative court costs and filing fees . . . would not prevent indigent persons from pursuing meanin gful litigation.” 11 Section 1915 was

8 Appx. at 47 (Pet. To Combine Filing Fees at ¶ 4); see also

id. at 52

- 53 (Prison Account Statement, reflecting commissary charges).

9 Id. ; see also id. (Prison Account Statement, reflecting

postage charges).

10 The relevant text of § 1915 is as follows: (b)(1) Notwithstanding subsection (a), if a prisoner brings a ci vil 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 filin g fee of 20 percent

. . .

. (2) 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 pri soner 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.

28 U.S.C. § 1915

. 11 Abdul

- Akbar v. McKelvie , 239 F.3d 307, 312 (3d Cir. 2001) (internal quota tion marks omitted), cert. denied , 533 U.S. 9537 amende d by the PLRA

, “largely in response to concerns about the heavy volume of frivolous prisoner litigation in the
federal courts.” 12 Prior to the passage of the PLRA, courts could waive filing fees entirely. 13 However, in enacting § 1915(b)(1), Congress requi red that all indigent prisoners filing civil actions or appeals eventually “pay the full amount of a filing fee.” 14

Section 1915(b) allows prisoners who qualify for IFP

status to mak e an initial partial payment, followed by monthly payments against the r emaining balance. 15 Section 1915(b)(1) requires an initial debit for partial payment of outstanding court fees when the funds in the prisoner’s account equal “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

(2001); see also Denton v. Hernandez , 504 U.S. 25, 31 (1992).

12 Abdul

- Akbar , 239 F.3d at 312; see also 141 Cong. Rec. S14,408

- 01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole) (explaining that t he number of prisoner suits filed “has grown astronomically

-- from 6,600 in 1975 to more than 39,000 in 1994” )

. The increase correlates with policies

that resulted in mass incarceration. During this same period, the prison population underwent a dramat ic increase. J ust over 500,000 people were incarcerated in prisons or jails in

1980 ; over 1.3 million were incarcerated in 1993. See Allen J. Beck & Darrell K. Gilliard, Bureau of Justice Statistics, NCJ 151654, Prisoners in 1994, at 1 (1995), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/Pi94.pdf.

13 Id. at 311

- 12 (“ [P] risoners easily obtained I.F.P. status and hence were not subject to the same economic disincentives to filing meritless cases t hat face other civil litigants. ”).

14 28 U.S.C. § 19 15(b)(1)

.

15 See Santana v. United States , 9 8 F.3d 752, 754 (3d Cir. 1996).8 complaint or notice of appeal.” 16 Section 1915(b)(2) provides that, after the initial partial payment

, the inmate must make “monthly p ayments of 20 percent of the preceding month’s income” whenever the account exceeds $10.00. 17 The prison

where the inmate is housed is responsible for withdrawing this money and “forward[ing] payments from the prisoner’s

acco unt to the clerk of the court.” 18 Th is monthly payment

scheme continues until the f iling fee is fully discharged. 19

T his scheme is relatively clear when an inmate only owes one filing fee. However, it is not clear how the

deductions should be made when a prisoner owes more than

one f iling fee arising from multiple lawsuits or appeals of a single lawsuit

. 20

16 28 U.S.C. § 1915(b)(1) . Prisoners need not make this initial partial payment if they do not have the available funds.

See id. § 1915(b)(4) (requiring collection of the initial partial filing fee onl y when sufficient funds exist).

17 Id. § 1915(b)(2)

.

18 Id.

19 Id.

20 T h is issue is a matter of first impression for this Court, and there is a split of authority among our sister courts of appea ls.

T he government argues that we have tacitly accepted the majority view of our sister courts of appeals, which is that the PLRA requires simultaneous recoupment. See Ray v. Reed

, 680 F.3d 841, 841 (3d Cir. 2012) (reinstating the court’s prior order requiring simultaneous recoupment, where a prisoner owed multiple filing fees and sought to limit his monthly obligations to a single 20

- percent payment). However, the government fails to note that Fortune v. Patterson , No. 04

- 377, 2009 WL 3166274, at *8 (W.D. Pa. Sept. 28, 2009), aff ’ d Fortune v . Hamberger

, 379 F. App’x 116 (3d Cir. 2010) (per curiam) (unpublished) , surmised that deducting filing fees at a rate greater than 20 percent was unlawful under the

PLRA or § 1915.9 In t h is case, Siluk faces the prospect of paying two fees: (1) the $350 district court filing fee that he incurred by filing his pro se complaint; and (2) the $505 fee he incurred in

this court for pursuing an appeal of the district court judgment. All parties agree that Siluk must pay both fees eventually and that these fees should be deducted from his inmate account; however, there is a highly contest ed legal question as to the rate at which these fees should be paid.

In his petition, Siluk requests that this C ourt order that 20 percent of his account balance, rather than 40 percent of his account balance, should be deducted each month , toward the payment of these fees. That is, Siluk requests that a single

20

- percent payment be deducted, rather than two 20

- percent
payments (one toward his district court fee and one toward his appellate fee).

The question presented by Siluk’s request for consolidation of fees, as interprete d by the motion s panel and as briefed by counsel is whether § 1915(b)(2 ) allows only a maximum of 20 percent to be taken from his monthly income regardless of the number of cases or appeals filed, or whether

the PLRA requires 20 percent taken each month fo r each case or appeal that he undertakes

.

These two conflicting interpretations of § 1915(b)(2) are referred to in the briefs and in the cases as “sequential” and “simultaneous” recoupment.

Sequential recoupment refers to the method of payment whereb y a single 20

- percent payment is withdrawn on a monthly basis. For example, if an inmate had $10 in his

or her account on the first of the month, the most that he or she could be required to pay toward his or her filings fees would be $2 (20 percent of th e $10). That one payment is withdrawn monthly, and the cases and/or appeals that an inmate has filed will be paid off sequentially

. Under such a rule, an inmate’s account could not be emptied in a single month based solely on the clerk’s withdrawal of a filing fee.

As applied to this case, sequential recoupment dictates that Siluk’s account would be subject to a single 20

- percent charge each month, and these charges would be used to pay10 off: (1) first his district court fee; and (2) then, only after hi s first fee was paid, his fee to this court for his appeal.

Simultaneous recoupment on the other hand, refers to a protocol whereby 20 percent of the inmate’s account is withdrawn for each case or appeal. Under such a rule, fees are paid off simultaneo usly, and an inmate ’ s account could be emptied in a single month by the clerk of the court . For example, unlike for the sequential rule

, under this reading of the statute if an inmate had $10 and owed money in five cases the clerk would deduct $2 for each case thus emptying the
inmate’s account

.

As applied to this case, simultaneous recoupment

dictates that the clerk of this C ourt and the clerk of the

D istrict C ourt would each withdraw 20 percent of Siluk’s

account simultaneously.

Given the PLRA’s te xt, structure, and purpose, we conclude that Congress intended the monthly payments
mandated under the PLRA to be debited from an inmate’s account sequentially. S e quential re coupment provides prisoners with a reasonable economic disincentive to file

frivo lous claims

, without being punitive or imposing such significant burdens that a prisoner might forgo asserting legitimate claim s

.

A

. Text and Structure of § 1915

As noted earlier, § 1915(b) establishes a gradual two

step garnishment procedure to ensure payment of filing fees. Subsection (b)(1) lays out the procedure for calculating and remitting the initial partial payment. It provides:

if a prisoner brings a civil action or files an appeal [IFP], 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[.]” 21

21 28 U.S.C. § 1915 (b)(1)

.11 This s ubsection unambiguously applies to each action or appeal that a prisoner files, whet her or not the prisoner has filed other suits that are pending. T he controversy here stems from the ambiguity that arises when subsection (b)(1) is read in conjunction with the explanation of how the remainder of the filing fee must be paid

, which is set forth in subsection (b)(2). Subsection (b)(2) states: “[a]fter payment of the initial partial filing fee,” prisoners must “make monthly payments of 20 percent of the preceding month’s income . . . until the filing fees are paid.” 22

The Supreme Court ha s explained that the words of a
statute “must be read in their context with a view to their place in the overall statutory scheme.” 23 Accordingly, a “provision that may seem ambiguous in isolation [] ” can be “clarified by the remainder of the [statute].” 24 The text of §

1915 must therefore be read as a whole, so that the content and operation of one provision can illuminate the proper

construction of another. 25 It is also crucial that we not lose sight of the Supreme Court’s admonition that a statute permitt ing an individual to file IFP not be interpreted in a manner that would deprive litigants of the “last dollar they

have

. ” 26 I n Adkins v. E.I. DuPont de Nemours & Co

. , t he

22 Id. § 1915 (b)(2 )

.

23 Davis v. Mich

. Dep’t o

f Treasury , 489 U.S. 803, 809 (1989); see also SimmsParris v. Countrywide Fin. Corp. , 652 F.3d 355, 358 (3d Cir. 2011).

24 AT&T Mobility LLC v. Concepcion , 131 S. Ct. 1740, 1754 (2011) (internal quotation marks omitted) ; see also Dolan v.

U.S. Postal Serv.

, 546 U.S. 481, 486 (2006) (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering [its] purpose and context[.]”).

25 See, e.g.

, Hagan v. Rogers , 570 F.3d 146, 155 (3d Cir. 2009) (“Section 1915(b)(3) must be read in t he context of § 1915(b) as a whole.”).

26 Adkins v. E.I. DuPont de Nemours & Co

. , 335 U.S. 331, 339 (1948)

.12 Court explained that “[w]e cannot agree . . . that one must be absolutely destitute t o enjoy the benefit of the [IFP] statute

. ” 27

Here, the government argues that construing the text and structure of § 1915 as requiring something other than simultaneous recoupment creates a disjunction. 28 According

27 Id.

28 The government asks us to adopt the view of the majority of our sister circuits, including the Courts of Appeals for the Fifth, Seventh, E ighth, Tenth, and D.C. Circuits, which have interpreted § 1915(b)(2) to require prisoners pay 20 percent of their funds towards filing fees concurrently, per case and per appeal. See Pinson v. Samuels , 761 F.3d 1, 7 (D.C. Cir. 2014) (holding that the PLRA requires a separate installment payment for each case in which a filing fee is owed); Christensen v. Big Horn County Bd. of County Comm’rs , 374 F. App’x 821, 829

- 33 (10th Cir. 2010) (unpublished) (embracing a “consistent reading of the similar provisions in §§ 1915(b)(1) and (b)(2)”); Atchison v. Collins

, 288 F.3d 177,

180

- 81 (5th Cir. 2002) ( reasoning that the word “court” appearing in both § 1915(b)(1) and (b)(2) should be read to refer to the “instant action,” separate from previously filed lawsuits) ; L efkowitz v. Citi

- Equity Group, Inc. , 146 F.3d 609, 612 (8th Cir. 1998) (“Because the PLRA fee provisions were designed to require prisoners to bear financial responsibility for each action they take, the [20]

- percent rule should be applied per case.”); New lin v. Helman , 123 F.3d 429, 436

- 37 (7th Cir. 1997), overruled on other grounds by Lee v. Clinton

, 209 F.3d 1025, 1027 (7th Cir. 2000) and Walker v. O’Brien

, 216 F.3d 66, 628

- 29 (7th Cir. 2000) (“[W]e hold that the fees for filing the complaint and appeal cumulate. .

. . The PLRA is designed to require the prisoner to bear some marginal cost for each legal activity.”).

District courts in the Sixth and Ninth Circuits have also followed the “per case,” or “simultaneous recoupment” interpretation of § 1915. See Hendon v. Ramsey , 478 F. Supp. 2d 1214, 1219 (S.D. Cal. 2007) (adopting the Fifth Circuit’s reasoning in Atchison v. Collins

, 288 F.3d 177, 180

- 81 (5th Cir. 2002) ); Samonte v. Frank , 517 F. Supp. 2d 1238, 1243 (D. Haw. 2007) (concluding that the “per case”13 to the government

, because subsection ( b)(1)

, which pertains to the initial filing fee on a per

- case basis regardless of the

number of outstanding fees

, sequential recoupment would result in an interpretative disconnect : a n inmate could
postpone paying subsequent fees under subsection (b)(2), b ut
not the fees required ( for each case ) under subsection (b)(1). 29

T he government concludes that because subsection (b)(1) requires that an inmate pay filing fee s on a per

- case basis, Congress intended subsection (b)(2) to operate in the same

manner.

How ever, the two subsections address different

situations and neither the statutory text nor the relationsh ip

between the two subsections suggests that we read the statute with such rigidity . Subsection (b)(1) deals with a one

- time initial partial filing fee withdrawn “when [and only when]

funds exist.” 30 The amount of that fee is based on income or account balance during the prior six months. 31 In contrast, subsection (b)(2) deals with ongoing monthly payments that

are withdrawn only when the prisoner’s acco unt balance “exceeds $10.” 32 The amount debited pursuant to subsection

interpretation of § 1915 was the more practical approach); Lyon v. Kentucky State Penitentiary , No. 02

- P53

- R, 2005 WL 2044955, at *1 (W.D. Ky. Aug. 23, 2005) (finding that the Sixth Circuit implicitly adopted the “per case” interpretation

in McGore v. Wrigglesworth , 114 F.3d 601 (6th Cir. 1997)).

29 See, e.g.

, Atchison

, 288 F.3d at 180

- 81 (holding that, in order to read § 1915 consistently, (b)(2) should correspond with (b)(1), in which the initial partial filing fee is imposed in

each case); Newlin , 123 F.3d at 436 (holding that, because the “PLRA is designed to require the prisoner to bear some marginal cost for each legal activity,” subsection (b)(2)’s requires recoupment on a per

- encumbrance basis: “A prisoner who files one suit remits 20 percent of income to his prison trust account; a suit and an appeal then must commit 40 percent, and so on.”).

30 28 U.S.C. § 1915 (b)(1).

31 Id.

32 Id. § 1915 (b)(2).14 (b)(2) is based on the prior month’s income. 33 In addition, a s the Court of Appeals for the Fourth Circuit explained in

Torres v. O’Quinn

, subsection (b)(1 ) specifically references “pay ment of any court fees[,]” 34 implying that “the [ 2 0

- ]percent exaction applies to all court fees, in total. ” 35

N othing in subsection (b)(2)’s language

, requiring monthly payments to “the clerk of the court, . . . until the filing fees

. . . are paid[,]” 36 su ggests that Congress intended
that “the clerk” simultaneously refer to two different clerks in

two different courts

. Congress could certainly have required monthly payments to multiple clerks of different courts

, or the same clerk for multiple filings unt il each filing fee is paid. Congress did not use language t hat would have achieved that

result

. Rather, the statute refers to “fees” relating to an “action or appeal.” 37 The logical conclusion is that Congress recognized that multiple “fees” might be owe d, but required sequential payments for only one case at a ti me.

Nevertheless, the government argues that, because “[t]he rest of Section 1915 addresses each case individually,” subsection (b)(2) should also be construed to require a monthly payment for each case a prisoner has filed. 38 That

view is inconsistent with other prov isions of the statute

, which do no t have the same ambiguity as that which arises from the interplay between subsection s (b)(1) and ( b ) (2). For example s ubsection (g), known as the PLRA’s “three strikes”

rule

, does not address each case individually. S ubsection (g) prohibits an i nmate from bringing a case if s / he has, on three

33 Id.

34 Torres v. O’Quinn , 612 F.3d 237, 245 (4th Cir. 2010) (emphasis added)

.

35 Id. (emphasis in original).

36 28 U.S.C. § 1915 (b)(2).

37 Id. § 1915 ( a )(2) (emphasis added).

38 Gov. Br. at 13 n.6.15 or more prior occasions, brought an action or appeal in federal court “that was dismissed on the grounds t hat it [was] frivolous, malicious, or fails to state a claim upon which relief may be granted .” 39 Clearly, Congress there intended to

review a prisoner’s overall litigation history

, not merely one

case at a time

. 40

Further more , t he Supreme Court has expl ained that the various subsections of § 1915 reflect the PLRA’s multi

pronged approach to reduc ing frivolous prisoner litigation in

federal courts. 41 H owever, subsections (b ) (1) and (b) (2) impact the congressional purpose in different, but complimentary, w ays. Subsection (b ) (1) establishes a mechanism to ensure that all prisoners pay an initial partial filing fee whenever a filing fee would be required for a claimant who was not filing IFP. 42 Th is up

- front cost force s prisoners to make reasoned choices abo ut whether to file a law suit . Subsection (b) (2) , then, establishes the garnishment procedure of subsequent monthly payments to completely pay the balance of all filing fees after the initial partial payment. 43

It addresses the method by which further fee s can be collected, while subsection (b)(1) insures that payment of the

“ full amount” of the fees “shall be required [

. ] ” 44 Thus, we do

39 28 U.S.C. § 1915 (g).

40 Other portions of § 1915 that do not apply on a per

- case basis include subsection (d), which is a blanket rule that pertains to all cases brought under § 1915, and subsection (e)(1), which provides that “[t]he court may request an attorney to represent any person unable to afford counsel.”

Id. §§ 1915 (d), (e)(1).

41 Skinner v. Switzer , 131 S. Ct. 1289, 1299 (2011) (noting

that the PLRA “placed a series of controls on prisoner suits, constraints designed to prevent sportive filings in federal court.”).

42 28 U.S.C. § 1915 (b)(1).

43 Id. § 1915 (b) (2)

.

44 Id. § 1915 (b) (1)

.16 not believe there is anything inconsistent about reading these two subsections to establish a scheme of sequential

recoup ment of fees.

We therefore agree with the conclusion of the Court of Appeals for the Second Circuit that the reference to an initial partial payment of “any court fees .

. . impl[ies] that multiple fees and costs should each be subject to a uniform ceil ing [of 20 percent].” 45

B. Purpose of the PLRA

When congressional intent is clear from the text of a statute, we do not delve into legislative history or focus on the statutory scheme. 46 However, in light of the discord among courts of appeals, and the apparent tension between

subsections ( b ) (1) and (b) (2)

, it is appropriate to consider the purpose of the statutory sche me to ensure that our interpretation is consistent with Congress’s objectives in enacting these provisions. 47 As the Supreme Court has

e xplained, the meaning of “certain words or phrases may only become evident when placed in context . . . and with a view to their place in the overall statutory scheme.” 48

The Supreme Court has noted that the overarching purpose of the PLRA is to implemen t “a series of controls”

45 Whitfield v. Scully , 241 F.3d 264, 276 (2d Cir. 2001).

46 In re Philadelphia Newspapers, LLC , 599 F.3d 298, 304 (3d Cir. 2010), as amended (May 7, 2010) (“‘When the words of a statute are unambiguous, then this first canon is also the last: judicial inquiry is complete.’” (quoting Conn. Nat’l Bank

v. Germain

, 503 U. S. 249, 253

- 54 (1992))).

47 See Dolan v. United States Postal Serv. , 546 U.S. 481, 486 (2006) (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering [its] purpose and context[.]”).

48 Nat’l Ass’n of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 666 (2007) (internal quotation marks and citations omitted).17 designed to prevent meritless filings in federal court. 49 In enacting the PLRA, “Congress sought to put in place economic incentives that would prompt prisoners to ‘stop and think’ before filing a complaint.” 50

Congress did not e nact the PLRA to punish inmates for

f iling suits, nor did it intend to deter prisoners from filing

valid claims. 51 In fact, § 1915(b)(4) specifically provides that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a ci vil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” 52 Congress was

, therefore

, keenly aware of the need to safeguard a prisoner’s constitutional right of access to the courts

. 53

49 Skinner v. Switzer , 131 S. Ct. 1289, 1299 (2011) ; see also

Abdul

- Akbar v. McKelvie , 239 F.3d 307, 318 & n.3 (3d Cir. 2001) (internal quotation marks omitte d), cert. denied

, 533

U.S. 953 (2001)

.

50 Id. ( citing 141 Cong. Rec. S7,498

- 01, S7,526 ( daily ed. May 25, 1995) (Sen. Kyl))

.

51 See 141 Cong. Rec. S7

, 526 (daily ed. May 25, 1995) (Sen. Kyl) (“The filing fee is small enough not to deter a prisoner

with a me ritorious claim . . . .”); 141 Cong. Rec. S14,627 (daily ed. Sept. 29, 1995) (Sen. Hatch) (“I do not want to prevent inmates from raising legitimate claims.”) ; see also

Bounds v. Smith , 430 U.S. 817, 822 (1977) (“ More recent

decisions have struck down rest rictions [to prisoners’ constitutional right of access to the courts] and required

remedial measures to insure that inmate access to the courts is adequate, effective, and meaningful. ”); see generally Ex parte

Hull , 312 U.S. 546, 549 (1941) (“[T] he state a nd its officers

may n ot abridge or impair petitioner’ s right to apply to a

federal cou rt for a writ of habeas corpus.”).

52 28 U.S.C. § 1915(b)(4).

53 The Supreme Court has held that prisoners have a constitutional right to bring court challenges to vindic ate “‘basic constitutional rights.’” Allah v Seiverling , 229 F.3d18 In order to balance the competing objectives of preserving a prisoner’s constitutional right o f access to the

courts while deterring frivolous litigation, § 1915(b) requires that an IFP prisoner make an initial payment towards the filing fee, but per mits the prisoner to pay the balance of his or

her fee s over an exten ded period of time

. Pursuant to this scheme, t he initial partial filing fee can be withdrawn only “when funds exist” in the prisoner’s account. 54 Thereafter, monthly payments, pegged at 2 0 percent of the prisoner’s account balance, are withdrawn only when the account balance “exceeds $10.” 55

Concurrent recoupment is inconsistent with the purpose of the PLRA because, although Congress intended to deter frivolous litigation by requiring IFP prisoners to bear some marginal cost , Congress did not intend to c r eate a payment scheme that would ensure fees be paid as expeditiously as possible or that would create tension with an

inmat e’s constitutional right of access to the courts. 56

Citing Newl in v. Helman , the government argues that sequential re cou pment would undermine Congress’s intent to deter frivolous prisoner litigation by allowing a prisoner to “postpone” indefinitely his or her monthly payments for any

additional lawsuit until after all previous filing fees had been paid. 57 We realize, of course, that sequential recoupment is

220, 223 (3d Cir. 2000) (quoting Wolff v. McDonnell , 418 U.S. 539, 579 (1974)).

54 28 U.S.C. § 1915(b)(1).

55 Id. § 1915(b)(2).

56 As we noted at the outset, and as Siluk’s allegations

sugge st, although the amounts appear “marginal,” they can be quite substantial to an inmate subsisting on nominal prison

wages.

57 See Newlin v. Helman , 123 F.3d 429, 436 (7th Cir. 1997), overruled on other grounds by Lee v. Clinton

, 209 F.3d 1025, 1027 (7th Cir . 2000) and Walker v. O’Brien , 216 F.3d 66,

628

- 29 (7th Cir. 2000) ; see also Christensen v. Big Horn County Bd. of County Comm’rs , 374 F. App’x 821, 830 (10th19 less of a deterrent to frivolous claims, but that consideration does not alter our analysis. Although Congress was concerned that prisoners would pay their filing fee, Congress

was clearly not as concerned about when the payment occurred. As Senator Dole explained during the debates on the PLRA, “when prisoners know that they will have to pay

these costs

-- perhaps not at the time of filing, but eventually

-

- they will be less inclined to file a lawsuit in the first place.” 58 That is precisely the point.

Congress could have required payments of more than 20 percent of the previous month’s income or imposed a time limit for payment of all outstanding fees if § 1915 was intended to collect filing fees as quickly as practica b l e

. However, that is not what Congress did. Although Congress

wanted to encourage indigent prisoners t o think before bringing claims, it did not want to subject inmates to unacceptable hardships in order to pursue judicial redress

. 59

Cir. 2010) (unpublished) (observing that the PLRA’s “pay

- as

you

- go constraint[] would be diluted if not defeated by permitting prisoners with one ongoing case to postpone all successive filing fee obligations”); Lefkowitz v. Citi

- Equity Group, Inc. , 146 F.3d 609, 612 (8th Cir. 1998) (rejecting “per inmate” approach to the “PLRA[’s] fee provisions” as

incons istent with Congress’s intent).

58 See 141 Cong. Rec. S14,413

- 14 (daily ed. Sept. 27, 1995) (statement of Sen. Dole).

59 See also Adkins v. E.I. DuPont de Nemours & Co. , 335 U.S. 331, 339

- 40 (1948) ( noting that an undesirable result
would be a “ statu tory interpretation [that] . . . force [s] a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution .” ). This Court has also repeatedly held that “prisoners are not required to surrender

those small amenities of l ife which they are permitted to acquire in a prison in order to litigate [IFP.]” Jones v. Zimmerman , 752 F.2d 76, 79 (3d Cir. 1985) (internal quotation marks and citation omitted); see also Bullock v. Suomela , 710 F.2d 102, 103 (3d Cir. 1983); Souder v.

M cGuire , 516 F.2d 820, 823 (3d Cir. 1975).20 Moreover, c oncerns that sequential repayment will not sufficiently deter meritless claims are alleviated by subsecti on (g)’s “three strikes” rule. 60 That is a “ powerful economic incentive” aimed specifically at repe at filers to prevent them from filing more “frivolous lawsuits or appeals.” 61 Subsection (g) seeks to penalize prisoners who have filed multiple, meritless claims, and revokes the IFP “privilege”

from those who have had “ three strikes, ” “no matter how

meri torious subsequent claims may be.” 62 Subsection (b), on the other hand, is a moderate measure only intended to

address prisoners filing lawsuits without considering the merit

of the ir claims

. 63

Accordingly, t here is a clear difference between the

purpo se of § 1915(g) and the rest of the PLRA

. As the government agrees, § 1915(g) is structured to deter frivolous suits while protecting a prisoners’ right of access to the

courts. 64 Accordingly, w e need not interpret § 1915(b)(2) as

60 As discussed above, § 1915(g) states “if [a] prisoner has, on 3 or more prior occasions,” brought an action or appeal in federal court “that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted[,]” then “[i]n no event shall [the] prisoner” bring an action or appeal IFP. 28 U.S.C. § 1915(g). Subsection (g) contains an exception permitting a prisoner

with three strikes to file an IFP action if s / he is “under imminent danger of serious physical injury.” Id.

61 Abdul

- Akbar v. McKelvie , 239 F.3d 307, 314 (3d Cir. 2001), cert. denied , 533 U.S. 953 (2001) (emphasis added).

62 Id.

63 Although, as the Fourth Circuit noted i n Torres , the statutory requir ement, that all filing fees be paid, deter s frivolous litigation on its own, without further requiring simultaneous recoupment

. Torres v. O’Quinn , 612 F.3d 237, 247 (4th Cir. 2010 )

. 64 See Gov. Br. at 22.21 requiring simultaneous f ee collection in order to advance the congressional concern with frivolous lawsuits. 65
Nevertheless, w e recognize th at the contrary view, as expressed by the Court of Appeals for the Seventh Circuit i n Newli n , has gained some support

. In Newlin

, the C ourt
reasoned that

, because the PLRA is designed to “require the prisoner to bear some marginal cost for each legal activity,” simultaneous recoupment is most consistent with the statute’s purpose because it exacts that price the soonest. 66 The Newlin

Court wa s concerned that, “[u]nless payment begins soon after the event that creates the liability, thi s will not happen [] ”

and prisoner s could file “multiple suits for the price of one.” 67
However, that analysis conflates the distinct objectives of ensuring payme nt of all filing fees and expediting payment of

fees. Neither the text of the statute n or the legislative history
support s this view. In fact, that interpretation is in direct

confli ct with the text of § 1915(b) because t he PLRA’s filing

65 In addition to the “three strikes” rule of subse ction (g), 28 U.S.C. § 1915(a)(3) permits IFP privileges to be automatically revoked on appeal if the trial court certifies that the appeal is meritless. Additionally, in cases brought by a plaintiff proceeding IFP, the court is directed to “dismiss the

c ase at any time if [it] determines that . . . the action or appeal . . . (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.” 28

U.S. C. § 1915(e)(2)(B); see also id. § 1915A(a)

- (b) (containing a similar requirement for all prisoner cases which “seek[] redress from a governmental entity”). If the court dismisses an action or appeal on one of these grounds, the prisoner nonetheless remai ns liable for paying the filing fee in

full. See, e.g. , J.A. 49 (“[T]he prisoner is obligated to pay the entire filing and/or docketing fee . . . regardless of the outcome of the proceeding or appeal.”); see also Porter v. Dep’t of Treasury , 564 F .3d 176, 179

- 80 (3d Cir. 2009).

66 See Newlin v. Helman , 123 F.3d 429, 436 (7th Cir. 1997), overruled on other grounds by Lee v. Clinton

, 209 F.3d 1025, 1027 (7th Cir. 2000) and Walker v. O’Brien , 216 F.3d 66,

628

- 29 (7th Cir. 2000)

.

67 Id. at 436

- 37.22 fee provisions e xplicitly permit a prisoner to postpone the payments indefinitely if the inmate’s account balance never

exceeds $10 .00

. 68 Moreover, sequential payment does not

mean that an i nmate can file “multiple suits for the price of one.” The prisoner still has to p ay all fees incurred, the amount of each individual payment is simply capped at 20 percent of the prior month’s balance, and the payments are stretched over a greater period of time. 69

T he Newlin Court ’s concern that , under a sequential

collection scheme , a prisoner filing multiple suits could “postpon[e] payment of the fees for later

- filed suits until after

the end of i mprisonment (and likely avoid them altogether) [] ” 70 is also misplaced. Although appellate courts do not agree on the interpretatio n of th e payment mechanism

in § 1915(b)(2), there is consensus among appellate courts

that an inmate’s obligation to fully pay all fees incurred i s not
coterminous with the inmate’s incarceration. 71

68 28 U.S.C. § 1915(b)(2).

69 Under either a simultaneous or sequential recoupment approach, § 1915 requires the prisoner to repay the entire filing fee, eventually. See id. §§ 1915(b)(2), (3) (filing fee payments continue “u ntil the filing fees are paid”); see also

T orres v. O’Quinn , 612 F.3d 237, 243 (4th Cir. 2010 ) (concluding that, under a sequential collection scheme, a prison could “collect the funds to pay the fees accrued by a specific inmate, and then distribute those funds to the appropriate court until that court’s fees are paid in full. After satisfying the first court, the prison would continue to collect funds and use them to pay the next court in sequence.”).

70 Newlin, 123 F.3d at 436.

71 All appellate courts to have reached this issue have held

that the obligation is not coterminous. See Robbins v.
Switzer , 104 F.3d 895, 899 (7th Cir. 1997) (noting that, under the PLRA, “release does not eliminate an obligation that

could and should have been met from the trust account while imprisonment continued.”); I n re Smith , 114 F.3d 1247, 1251 (D.C. Cir. 1997) (recognizing that “if a litigant is a prisoner on the day he files a civil action, the PLRA applies.”) ; Gay v. Tex. Dep’t of Corr ., 117 F.3d 240, 242 (5th Cir. 1997)23 As we have noted, the majority of view (of simultaneous recoupme nt) could result in 100 percent of a prisoner’s income being garnished to pay filing fees. 72 We cannot imagine a valid penological or rehabilitative purpose

in creating a risk that inmates would have to surrender the necessities of daily subsistence . We f ind nothing in the legislative history of § 1915 that would allow us to impute

such a draconian intent to Congress. 73 Rather, we agree with

t he observation of the Court of Appeals for the Fourth Circuit

that “ [t] he garnishment of more than twenty percent o f an indigent inmate’s already meager income cross es the line from deterrence to punishment and was not the intent behind § 1915. ” 74

(holding that § 1915’s filing

- fee require ment applied to an inmate even though he was released, because he “file[d] an appeal” while he was a prisoner) ; McGann v. Comm’r, Soc.

Sec. Admin.

, 96 F.3d 28, 30 (2d Cir. 1996) (construing the PLRA to “require[] partial fee payments

. . . only while the prisoner remains in prison, and that, upon his release, his obligation to pay fees is to be determined, like any non

prisoner, solely by whether he qualifies for i.f.p. status.”)

.

72 Pinson v. Samuels , 761 F.3d 1, 8 (D.C. Cir. 2014) (acknowledging that sim ultaneous recoupment could subject “100% of a prisoner’s income” to recoupment); Newlin v.

Helman , 123 F.3d 429, 436 (7th Cir. 1997), overruled on other grounds by Lee v. Clinton

, 209 F.3d 1025, 1027 (7th Cir. 2000) and Walker v. O’Brien , 216 F.3d 66, 628

- 29 (7th Cir. 2000) (observing that, under a simultaneous recoupment plan, “[f]ive suits or appeals mean that the prisoner’s entire monthly income must be turned over to the court un til the fees have been paid.”).

73 See also Torres v. O’Quinn , 612 F.3d 237 , 247 (4th Cir. 2010) ( “ Congress put a limit on g arnishment from an inmate’s (already meager) income, understanding that a ‘chilling effect’ on litigation was not the same as a complete bar on filing suits, which may occur if close to one hundred
percent o f an inmate’s income is taken to pay his filing

fees.” )

. 74 Id.24 We therefore conclude that s equential recoupment harmonizes subsection (b)(2) with the purpose of the statute

, while avoidi ng the constitutionally suspect result of erecting

barriers to courts that would make some inmates cho o se between attempting to seek redress for legitimate claims and having enough money in one’s prison account to purchase

i tems required for basic hygiene. 75

C

. Constitutional Concerns

Our conclusion is consistent with t he doctrine of

constitutional avoidance

. If a statute can be construed two ways, “by one of which grave and doubtful constitutional questions arise and by the other of which such questio ns are avoided,” our duty is to “ adopt the latter.” 76

Silu k argues that simultaneous recoupment, by permitting the garnishment of anywhere from 40 to 100
percent of a prisoner’s income, risks violating prisoners’ Eighth Amendment rights by rendering a pr isoner unable to buy necessary hygiene supplies. 77 T he government argues

75 See also id. at 246

- 47 (explaining that the sequential

in terpretation of § 1915(b) “both satisfies Congress’s intent when passing the PLRA and protects the constitutional rights
of inmates.” ); Whitfield v. Scully , 241 F .3d 264, 276 (2d Cir. 2001) (reasoning that § 1915 provides a “uniform ceiling [ of 20 percent ] in a compromise between the imperative to collect fees . . . and the right of prisoners to effective access to the courts[,]” even w here plaintiff owes fees in multiple

cases ).

76 United States v. Edmonds , 80 F.3d 810, 819 (3d Cir. 1996) (internal quotation marks and citation omitted).

77 See Rhodes v. Chapman , 452 U.S. 337, 347 (1981) (holding that under the Eighth Amendment, prisoners have a right to the “minimal civilized measure of life’s necessities.”); Garcia

v. Kimmell , 381 F. App’x 211, 216 (3d Cir. 2010) (per curiam) (unpublished) (holding that “those minimal necessities include provision for basic hygiene.”) (citing

Penrod v. Z

avaras , 94 F.3 d 1399, 1406 (10th Cir. 1996); Young v. Quinlan , 960 F.2d 351, 363 (3d Cir. 1992),25 that this concern is misplaced, because prison systems are constitutionally bound to provide inmates with the necessities of life, including “‘adequate food, clothing, shelter, and

me dical care

, ’” 78 “as well as with ‘paper and pen to draft legal documents[.]’” 79 The government asserts that the Adkins Court’s fear of “forc[ing] a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution,” 80 is ther efore inapplicable in the prison context. Thus, the government concludes, adopting the simultaneous

payment interpretation to § 1915(b)(2) simply will not force a prisoner to choose between paying for a lawsuit and

sa tisfying his or her most basic needs.

However, the government’s argument is undermined by the allegations here. 81 Siluk claims he is “required to pay for . . . soap, shampoo, razors, [and] deodorant.” 82 Moreover, while prisons provide basic hygienic supplies to those who cannot afford them, courts have often ha d to resolve claims of prisoners who claim that what is provided is so meager as to

superseded by statute

, Title VIII of Pub. L. No. 104

- 134, 100 Stat. 1321 (1996) ).

78 Gov. Br. at 23

- 24 (quoting Betts v. New Castle Youth Dev.

Ctr. , 621 F.3d 2 49, 256 (3d Cir. 2010)).

79 Id. at 24 (quoting Bounds v. Smith , 430 U.S. 817, 824

- 25 (1977)).

80 Adkins v. E.I. DuPont de Nemours & Co. , 335 U.S. 331, 340 (1948).

81 This case is before us following Siluk’s appeal of the

District Court’s Federal Rule of Civ il Procedure 12(b)(6) dismissal, Siluk’s application to proceed IFP before us, and
Siluk’s motion to combine payment of his filing fees. In reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6), “we accept all factual allegations as true, c onstrue the complaint in the light most favorable to the plaintiff.” Pinker v. Roche Holdings Ltd.

, 292 F.3d 361, 374 n.7 (3d Cir. 2002).

82 Appx. at 47 (Pet. to Combine Filing Fees at ¶ 4).26 deny basic amenities. 83 Additionally, Siluk states that he is required to pay for certain costs incurred in bringing this

action

, such as paper, p ens, copies, carbon paper, and mail. He argues that he should “have enough funds available to continue with this action[.]” 84 We agree, and find that his assertion raises constitutional concerns regar ding his access to

the courts. 85

In Abdul

- Akbar , we upheld the PLRA’s “three strikes” provision

, which requires some prisoners to pay their entire filing fees before their complaints are adjudicated

. 86 There,

w e concluded that “requiring a prisoner to pay filing fees in a civil case does not, without more, violat e that prisoner’s right of meaningful access to the courts.” 87 However, imposing the scheme of concurrent debits advocated by the government certainly could result

. For example, s imultaneous
recoupment of filing fees from previous suits could impede a pri soner seeking redress for abuse s that may not necessarily result in serious bodily injury or death. 88 We will not

83 See, e.g.

, Young v. Quinlan

, 960 F.2d 351, 363 (3d Cir. 1992) ; see also Penrod v. Zavaras

, 94 F.3d 1399, 1406 (10th

Cir. 1996)

.

84 Appx. at 52

- 53 (Prison Account Statement , reflecting postage charges).

85 As noted above, the Second and Fourth Circuits have declined to require prisoners who file multiple lawsuits to pay more than 20 percent of their monthly income toward filing

fees because of this exact concern. Torres v. O’Quinn , 612 F.3d 237, 242, 247

- 48 (4th Cir. 2010) ; Whitfield v. Scully

, 241 F.3d 264, 276

- 77 (2d Cir. 2001).

86 Abdul

- Akbar v. McKelvie , 239 F.3d 307 (3d Cir. 2001) (internal quotation marks omitted), cert. denied , 533 U.S. 953 (2001).

87 Id. at 317.

88 See 28 U.S.C. § 1915(g) (establishing an exception to the “three strikes” rule for a prisoner who “is under imminent danger of serious physical inj ury.”); see also Torres , 612 F.3d27 construe the PLRA in a way that would prevent prisoners from vindicating their fundamental rights in a judicial

forum

. 89

We realize, of cour se, that s everal of our sister circuit courts have rejected the contention that simultaneous
recoupment is unconstitutional because there is no constitutional right to proceed IFP. 90 Although there may not be a constitutional right to proceed IFP, it canno t be doubted that we should avoid interpreting § 1915(b) in a manner that would erect obstacles to an inmate’s ability to seek redress in court for legitimate grievances unless the text of the statute requires such an interpretation.

T he Supreme Court h as clearly stated that we have a duty to “avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative

at 248 (recognizing that a “per case” interpretation of § 1915(b) could force prisoners to choose “between saving their meager income and searching for a remedy for abuses in prison” that do not rise to the l evel of seriou s physical injury)

.

89 Mayer v. Chicago , 480 U.S. 189, 198 (1971); see also Whitfield , 241 F.3d at 277 (explaining that courts should “avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretat ion poses no constitutional question.” (quoting Gomez v. United

States

, 490 U.S. 858, 864 (1989)) )

. 90 Atchison v. Collins

, 288 F.3d 177, 179

- 81 (5th Cir. 2002) (finding that no “serious constitutional questions [are] raised” by the simultaneous collection of fees in each case under § 1915(b) because “indigent persons have no constitutional right to proceed [IFP]” and “states are constitutionally bound to provide [prisoners] with the necessities of life.”; Lefkowitz

v. Citi

- Equity Group, Inc. , 146 F.3d 609, 612 (8th Cir. 1998) (finding that, “[b]ecause the PLRA fee provisions were designed to require prisoners to bear financial responsibility for each action they take, the [20]

- percent rule should be appl ied simultaneously per case.”).28 interpretation poses no constitutional question.” 91 Here

, there

is such a reasonable alternative that is supported by the text and purpose of the PLRA : sequential recoupment

.

CON CLUSION

For the foregoing reasons, we conclude that § 1915 permits the recoupment of only 20 percent of a prisoner’s monthly income for filing fees, regardless of how many civil actions or appeals t he prisoner elects to pursue

, thereby adopting the sequential recoupment rule advocated by the petitioner.

91 Gomez

, 490 U.S. at 8 64.1 Siluk v. Merwin

No. 11

- 3996

CHAGARES, Circuit Judge , dissenting.

The majority holds that under 28 U.S.C. § 1915(b), a prisoner who owes multiple filing fees is required to pay them sequentially, not simultaneously, such that a prisoner pays no

more tha n 20% of the preceding month’s income each month, no matter how many separate filing fees he owes. I respectfully disagree, and would join the majority of our sister Courts of Appeals that have addressed the issue in holding that § 1915(b) requires a pris oner who has incurred multiple filing fees to pay them simultaneously. An interpretation requiring that fees be paid simultaneously is the most natural reading of the statute and is more consistent with the purpose of the Prison Litigation Reform Act (“PL RA”) than is a sequential approach. Therefore, I respectfully

dissent. 1

I.

A.

In Abdul

- Akbar v. McKelvie , we discussed the history and development of the PLRA. See 239 F.3d 307, 311

- 12 (3d Cir. 2001) (en banc). We observed that “[t]he discretionary power to permit indigent plaintiffs to proceed without first paying a filing fee was initially codified in the federal statutes
in 1892.” Id

. at 311 . Congress enacted the PLRA in 1996

, “largely in response to concerns about the heavy volume of frivolous prisoner litigation in the federal courts.” Id. at 312.

Bec ause prisoners easily achieved in forma pauperis (“IFP”) status, Congress concluded that they were not “subject to the same economic disincentives to filing meritless cases that

fac e other civil litigants,” and, accordingly, the PLRA

instituted a number of reforms designed to “prompt prisoners to ‘stop and think’ before filing a complaint.” Id. at 318.

1 I do join my learned colleagues, however, in thanking the attorneys who handled this matter pro bono and in commending them for their excellent representation.2 Among other reforms, the PLRA amended the IFP statute as it applies to prisoner s. Under the PLRA, prisoners who qualify for IFP status are no longer excused from paying filing fees altogether, but rather are required to pay them in accordance with 28 U.S.C. § 1915(b), which provides:

(1) [I]f a prisoner brings a civil action or fi les 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

perce nt 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. (2) After paym ent 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 priso ner’s account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

This provision, while clearly (1) requiring prisoners to pay filing fees in full, and (2) permitting prisoners who qualify for IFP sta tus to pay filing fees over time rather than up front, does not explicitly address what happens when a prisoner owes more than one filing fee at once. The majority interprets the statute as requiring sequential payment of multiple filing fees, with a hard payment cap of 20% of a prisoner’s monthly income no matter how many filing fees he owes. I disagree, and believe that the statute requires simultaneous payment of multiple filing fees. A majority of Courts of Appeals having considered this issue suppor t this

view. See Pinson v. Samuels , 761 F.3d 1, 7

- 10 (D.C. Cir. 2014) (holding that § 1915(b) requires a prisoner who has incurred multiple filing fees to pay them simultaneously),3 petition for cert. filed sub nom. Bruce v. Samuels , 83 U.S.L.W. 3640 (U.S. Jan. 16, 2015) (No. 14

- 844); Christensen v. Big Horn Cnty. Bd. of Cnty. Comm’rs , 374 F. App’x 821, 829

- 33 (10 th Cir. 2010) (unpublished) (same);

Atchison v. Collins , 288 F.3d 177, 180

- 81 (5 th Cir. 2002) (per curiam) (same); Lefkowitz v. Citi

- Equity Grp., Inc. , 146

F.3d 609, 612 (8 th Cir. 1998) (same); Newlin v. Helman , 123 F.3d 429, 435

- 36 (7 th Cir. 1997) (same), overruled on other grounds

, Lee v. Clinton , 209 F.3d 1025, 1027 (7 th Cir. 2000).

But see Torres v. O’Quinn , 612 F.3d 237, 242

- 53 (4 th Cir. 2010) ; Whitfield v. Scully , 241 F.3d 264, 275

- 77 (2d Cir. 2001).

B.

The Supreme Court has recently instructed that “reasonable statutory interpretation must account for both ‘the specific context in which . . . language is used’ and ‘the

broader context of the statute as a whole.’” Util. Air Regulatory Grp. v. EPA , 134 S. Ct. 2427, 2442 (2014) (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 341 (1997) (alteration in original)). The Court continued that “[a] statutory provision that may seem am biguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.’”

Id. (quoting United Sav. Ass’n of Tex. v. Timb ers of Inwood Forrest Assocs., Ltd. , 484 U.S. 365, 371 (1988) (alteration in original)). This is such a case, where the meaning of a provision, § 1915(b)(2 ), is clarified by the remainder of §

1915

. See Christensen , 374 F. App’x at 829 (“The majority

‘cu mulative payment’ or ‘per case’ position with which we agree has been adopted based on standard interpretive principles (construing § 1915 (b)(2) in light of the other provisions in § 1915).”). In the past, we have similarly

resorted to § 1915 or § 1915 (b) “as a whole” to determine the meaning of a provision therein. See

, e.g.
, Hagan v. Rogers

, 570 F.3d 146, 155 (3d Cir. 2009) (“Section 1915(b)(3) must

be read in the context of § 1915 (b) as a whole.”); Abdul

Akbar , 239 F.3d at 312, 314 (interpreting § 1915 (g) in the context “of the PLRA as a whole”); Santana v. United States

, 98 F.3d 752, 756, 757 (3d Cir. 1996) (concluding that “the filing fee payment requirements of the PLRA set forth in 284 U.S.C. § 1915 (b) do not apply to habeas corpus petitions or to

ap peals from the denial of such petitions” after considering the PLRA “as a whole”).

The text of § 1915 (b)(2), which requires that “[a]fter payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percen t of the preceding month’s income credited to the prisoner’s account,” does not explicitly answer the question of how multiple filing fees should be paid. However, reading § 1915(b) (2) in the context of § 1915(b) as a whole shows that the statute requires simultaneous recoupment of multiple filing fees. I t is c lear from the text of § 1915(b)(1) and undisputed by the parties that a prisoner is required to pay an initial filing fee for each case or appeal he files

– a “per

- case” approach

– no matter how man y other fees he has paid or is paying. See § 1915(b)(1) (requiring that “if a prisoner brings a civil action or files an appeal in forma pauperis . . . [t]he court shall assess and, when funds exist, collect . . . an initial partial filing fee. . . .”). Accordingly, “[t]he plain text of [ § 1915(b)(1) ] calls for assessment of the initial partial filing fee

each time a prisoner ‘brings a civil action or files an appeal.’”

Pinson , 761 F.3d at 8 (quoting 28 U.S.C. § 1915(b)(1) ). I agree with the Government that it is logical to interpret § 1915(b)(2) to require that monthly payments of 2 0% be made

for each case as well

, and not for each prisoner, regardless of how many suits or appeals he or she files. See Hendon v. Ramsey , 478 F.Supp. 2d 1214, 1219 (S.D. C al. 2007) (“Thus, an initial filing fee is collected each time a prisoner initiates an action, rather than once per prisoner irrespective of the number of actions the prisoner has filed.”). By contrast, reading a sequential (or “per

- prisoner”) payment str ucture into § 1915(b)(2) would be inconsistent with the per

- case approach of § 1915 (b)(1).

The text of § 1915 (b)(2) itself provides further support for a simultaneous recoupment approach, as the provision specifies that the prisoner must make monthly pay ments of 20 percent “[a]fter payment of the initial partial filing fee.” 28

U.S.C. § 1915 (b)(2). If, as is undisputed, a prisoner must pay the initial filing fee for each suit filed, then the prisoner must immediately follow through and pay the monthly i nstallment payments on the amounts remaining for the same action or5 appeal the prisoner has filed. Put another way, “[b]ecause the initial partial filing fee imposed in subsection (b)(1) acts as the ‘triggering condition’ for the monthly installments

requ ired by subsection (b)(2), the two provisions should be
read in tandem.” Pinson , 761 F.3d at 9 (quoting Torres v. O’Quinn , 612 F.3d 237, 256 (4th Cir. 2010) (Niemeyer, J., dissenting) ). As a result, both § 1915 (b)(1) and § 1915 (b)(2) apply equally to eac h action or appeal filed, with no exception in either subsection for multiple filings. See id. (“Given that the initial fee required by subsection (b)(1) applies on a per

case basis, it follows that subsection (b)(2)’s monthly payment obligation likewise applies on a per

- case basis.”).

Other provisions of § 1915 similarly reflect a per

- case approach. For example, § 1915 (a)(2) provides that a “prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefore . . . shall submit . . . a trust fund account statement . . . for the prisoner for the 6

- month period immediately preceding the filing of the complaint or notice of appeal.” 28 U.S.C. § 1915 (a)(2) (emphasis added). In

addit ion, § 1915 (e )(2) provided that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time” if the court

determines that the case is defective. 28 U.S.C. § 1915 (e)(2) (emphasis added). Finally, § 1915 (f)(1) provides that a court may issue a judgment for costs “at the conclusion of the suit

or action .” 28 U.S.C. § 1915 (f)(1) (emphasis added). Again, these subsections exemplify the “per

- case” approach common

to all of § 1915

.

For the se reasons, I part ways with the majority, and would interpret § 1915(b)(2) to require that prisoners who owe multiple filing fees pay them simultaneously rather than sequentially.

C.

A rule requiring simultaneous recoupment is consistent

wit h the PLRA’s effort to require prisoners to incur a marginal cost for each additional lawsuit they file. By requiring prisoners to bear additional costs for each suit, the PLRA encourages prisoners to absorb a portion of the6 economic impact of their lawsu it and aggregate their claims in a single suit. It also discourages frivolous lawsuits.

Some of our sister Courts of Appeals have recognized as much in interpreting § 1915(b) to require simultaneous
recoupment. See, e.g.
, Pinson

, 761 F.3d at 10 (obser ving that “the per

- case approach comports with the PLRA’s basic object” because “[c]apping monthly withdrawals at twenty percent of an inmate’s income, regardless of the number of suits filed, would diminish the deterrent effect of the PLRA once a prisoner files his first action”); Lefkowitz , 146 F.3d at 612 (“Because the PLRA provisions were designed to require prisoners to bear financial responsibility for each action they take, the twenty

- percent rule should be applied per case.”) ; Newlin , 123 F.3d at 4 36 ( holding that prisoners must make monthly payments for multiple filing fees simultaneously because “[o]therwise a prisoner could file multiple suits for the price of one, postpo ning payment of the fees for later

- filed suits until after the end of impris onment (and likely avoiding them altogether),” and “[t]he PLRA is designed to require the prisoner to bear some marginal cost for each legal a ctivity”);

see also Torres , 612 F.3d at 256 (Niemeyer, J., dissenting) (observing that the majority’s holding, all owing for sequential payment of multiple filing fees, “gives prisoners, in effect, a free ride after they file their first piece of litigation”).

The marginal cost to prisoners of filing additional lawsuits or appeals might not only be delayed, but a lso might be eliminated entirely, as some of our sister Courts of Appeals have held that “the PLRA fee requirements are not applicable to a released prisoner.” DeBlasio v. Gilmore , 315

F.3d 396, 397 (4th Cir. 2003); accord McGann v. Comm’r,

Soc. Sec. Admi n. , 96 F.3d 28, 30 (2d Cir. 1996). In

De Blasio , the Court of Appeals for the Fourth Circuit held that, upon a prisoner’s release, his “obligation to pay filing fees is determined by evaluating whether he qualifies under the general in forma pauperis provi sion of 28 U.S.C. § 1915(a)(1).” 315 F.3d at 397. Section 1915(a)(1) excuses an indigent litigant from prepaying filing fees altogether, provided that the litigant files an affidavit including a statement of his assets and his inability to pay fees. See 28 U.S.C. § 1915(a)(1). Accordingly, if prisoners are released from their payment obligations under the PLRA once they get7 out of prison, under a sequential payment approach they

would be able to postpone payment of all but one of their

owed filing fees indefinitely until they are no longe r obligated to pay them at all.

Allowing prisoners to postpone or even escape their payment obligations is clearly contrary to the PLRA’s

purpose , as it provides virtually no deterrent to filing an

infinite number of lawsuits

. An interpretation requiring that fees be paid simultaneously is, therefore, more consistent with the purpose of the PLRA.

D.

Finally, I respectfully disagree with the majority that such a reading gives rise to constitutional concern s, either by treading on inmates’ rights under the Eighth Amendment or by barring inmates’ access to the courts.

We have observed that the Eighth Amendment requires prisons to provide “humane conditions of

confinement” and “ensure that inmates receive ad equate food, clothing, shelter, and medical care.” Betts v. New Castle

Youth Dev

. Ctr. , 621 F.3d 249, 256 (3d Cir. 2010) (quotation marks omitted). I agree with the Government that this obligation mitigates the concern we have expressed with respect to i ndigent non

- prisoners, that they would have to

choose between necessities like toothbrushes and a lawsuit. In the prison context, where prisons are obligated to provide such necessities, prisoners need not make this choice. 2 As a result, our sister Court s of Appeals have rejected the argument that a simultaneous approach could violate prisoners’ Eighth Amendment rights. See

, e.g.
, Pinson , 761

F.3d at 9

- 10; Atchison , 288 F.3d at 181.

Nor would simultaneous recoupment bar inmates’

access to the courts. With regard to the concern the majority raises, that inmates require tools such as pens and paper to file suit, the Supreme Court has made clear that “[i]t is

2 The Pennsylvania Depa rtment of Corrections memorialized this requirement in Policy Statement DC

- ADM 815 (effective May 29, 2009).8 indisputable that indigent inmates must be provided at state expense with paper and pen to draf t legal documents with notarial services to authenticate them, and with stamps to
mail them.” Bounds v. Smith , 430 U.S. 817, 824

- 25 (1977). Our sister Courts of Appeals have similarly rejected the argument that a simultaneous approach could violate priso ners’ access to the courts. See

, e.g.
, Pinson , 761 F.3d at
9; Lefkowitz , 146 F.3d at 612 (“[W]e agree with our fellow circuits that these fee provisions do not deny prisoners constitutionally guaranteed access to courts.”).

The Court of Appeals in Torr es raised a different ground for fearing that simultaneous recoupment would bar access to the courts, expressing concern that a prisoner who was required to pay 100% of his inmate account funds to service his filing fee obligations would not be able to eng age in further legal action. But t he Court of Appeals for the District of Columbia Circuit effectively addressed this

concern in Pinson , explaining that “the PLRA’s safety

- valve provision, § 1915(b)(4), separately” ensures that insufficient

funds will not bar inmates from bringing suit. Pinson , 761 F.3d at 8. Section 1915(b)(4) provides that “[i]n 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 a nd no means by which to pay the initial partial filing fee.” Section 1915(b)(2) provides additional protection, because it provides for collection of fees only where a prisoner’s account exceeds $10.

In light of prisons’ obligations to provide inmates w ith supplies necessary for humane confinement and meaningful access to the courts, and considering the statutory safeguards the PLRA provides for destitute inmates, I conclude that the canon of constitutional avoidance does not compel sequential
recoupment

.

II.

For the foregoing reasons, I respectfully dissent.