2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-10-2015

Michael Siluk, Jr. v. Catherine Merwin

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 11-3996

_______________

MICHAEL E. SILUK, JR.,

Appellant

v.

CATHERINE MERWIN, 

Director of Perry County 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 

withdraw 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 impacts indigent prisoners’ access to the courts and 

it has resulted in a conflict among the Courts of Appeals.

2

Under the PLRA,

3

a prisoner who files a civil 

complaint or an appeal in the federal courts is required to pay 

the full amount of the filing fee even if s/he is filing in forma 

pauperis (“IFP”).

4

 Pursuant to 28 U.S.C. § 1915(b)(2), after 

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 the district court and this Court. 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 deductions should be made in 

the order in which they were incurred (referred to as 

“sequential collection,” “sequential recoupment,” or “per 

inmate approach”). The government argues that § 1915(b) 

requires that a monthly 20-percent deduction must be made 

concurrently 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 seq.

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 to 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, 67 

F.3d 1080, 1084 (3d Cir. 1995).
4

Siluk’s account each month that would continue until both 

fees are completely paid.

On January 11, 2013 this Court entered an order which 

among other things granted 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 percent 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 need 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 plaintiff seeks recovery from the state 

treasury.” Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990) 

(internal citations omitted). 

“All courts and agencies of the [Pennsylvania unified judicial 

system] are part of the Commonwealth government . . . [and] 

entitled to Eleventh Amendment immunity.” Haybarger v. 

Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 198 (3d 

Cir. 2008) (citation omitted); Pa. Const. art. V, § 1. County 

domestic relations sections are part of the unified judicial 

system. 42 PA. CONS. STAT. ANN. § 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 that state 

authorities had wrongfully intercepted his federal income tax 

refund and applied it to a child-support arrearage he allegedly 

owed. After Siluk’s state court litigation proved 

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 violation of the Fourteenth

Amendment. The District Court granted Siluk’s motion to 

proceed IFP and ordered the collection of an initial partial 

filing fee, followed by monthly installments as required by § 

1915(b).

6

 The court subsequently dismissed Siluk’s 

complaint pursuant to Federal Rule of Civil Procedure

12(b)(6).

7

Siluk appealed and applied to proceed IFP before us. 

He 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 prison 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 

completely paid to the district court. 

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 on prison wages of around $40.00 a 

month after the 20-percent deduction of the District Court 

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

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

 

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

remitted 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 

proceeding 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 meaningful 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 civil action or files an appeal 

in forma pauperis, the prisoner shall be required 

to pay the full amount of a filing fee. The court 

shall assess and, when funds exist, collect, as a 

partial payment of any court fees required by 

law, an initial partial filing fee of 20 percent . . . 

.

(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 

prisoner shall forward payments from the 

prisoner’s account to the clerk of the court each 

time the amount in the account exceeds $10 

until the filing fees are paid.

28 U.S.C. § 1915.

11 Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) 

(internal quotation marks omitted), cert. denied, 533 U.S. 953
7

amended 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 required 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 make an initial partial payment, followed by monthly 

payments against the remaining 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 the 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 dramatic increase. Just 

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 that face other civil litigants.”).

14 28 U.S.C. § 1915(b)(1).

15 See Santana v. United States, 98 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 payments 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 

account to the clerk of the court.”18 This monthly payment 

scheme continues until the filing fee is fully discharged.19

This 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 filing 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 only when sufficient funds exist).

17 Id. § 1915(b)(2).

18 Id.

19 Id.

20 This issue is a matter of first impression for this Court, and 

there is a split of authority among our sister courts of appeals. 

The 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 this 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 contested legal 

question as to the rate at which these fees should be paid.

In his petition, Siluk requests that this Court 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 interpreted by the motions 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 for 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 whereby 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 the $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 pay 
10

off: (1) first his district court fee; and (2) then, only after his 

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 simultaneously, 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 Court and the clerk of the 

District Court would each withdraw 20 percent of Siluk’s 

account simultaneously.

Given the PLRA’s text, structure, and purpose, we 

conclude that Congress intended the monthly payments 

mandated under the PLRA to be debited from an inmate’s 

account sequentially. Sequential recoupment provides

prisoners with a reasonable economic disincentive to file

frivolous claims, without being punitive or imposing such 

significant burdens that a prisoner might forgo asserting 

legitimate claims.

A. Text and Structure of § 1915

As noted earlier, §1915(b) establishes a gradual twostep 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 subsection unambiguously applies to each action or 

appeal that a prisoner files, whether or not the prisoner has 

filed other suits that are pending. The 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 has 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 

permitting an individual to file IFP not be interpreted in a 

manner that would deprive litigants of the “last dollar they 

have.”

26

 In Adkins v. E.I. DuPont de Nemours & Co., the 

 

22

 Id. § 1915(b)(2).

23 Davis v. Mich. Dep’t of 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 the 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 to 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, Eighth, 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); Lefkowitz 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.”); Newlin 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: an inmate could 

postpone paying subsequent fees under subsection (b)(2), but 

not the fees required (for each case) under subsection (b)(1).29 

The government concludes that because subsection (b)(1) 

requires that an inmate pay filing fees on a per-case basis, 

Congress intended subsection (b)(2) to operate in the same 

manner.

However, the two subsections address different 

situations and neither the statutory text nor the relationship 

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 account 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, as 

the Court of Appeals for the Fourth Circuit explained in 

Torres v. O’Quinn, subsection (b)(1) specifically references 

“payment of any court fees[,]” 34 implying that “the [20-

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

35

Nothing in subsection (b)(2)’s language, requiring 

monthly payments to “the clerk of the court, . . . until the 

filing fees . . . are paid[,]”36 suggests 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 until each filing fee is paid. 

Congress did not use language that 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 owed, but required 

sequential payments for only one case at a time.

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 provisions of the statute,

which do not have the same ambiguity as that which arises 

from the interplay between subsections (b)(1) and (b)(2). For 

example subsection (g), known as the PLRA’s “three strikes” 

rule, does not address each case individually. Subsection (g) 

prohibits an inmate 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 that 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

Furthermore, the Supreme Court has explained that the 

various subsections of § 1915 reflect the PLRA’s multipronged approach to reducing frivolous prisoner litigation in 

federal courts.41 However, subsections (b)(1) and (b)(2)

impact the congressional purpose in different, but 

complimentary, ways. 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 This up-front cost forces

prisoners to make reasoned choices about 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 fees 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 

recoupment 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 ceiling [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 scheme to ensure that our 

interpretation is consistent with Congress’s objectives in 

enacting these provisions.47 As the Supreme Court has 

explained, 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 implement “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 enact the PLRA to punish inmates for 

filing 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 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.”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 omitted), 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 meritorious 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 restrictions [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 and its officers 

may not abridge or impair petitioner’s right to apply to a 

federal court 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 vindicate 

“‘basic constitutional rights.’” Allah v Seiverling, 229 F.3d 
18

In order to balance the competing objectives of 

preserving a prisoner’s constitutional right of access to the 

courts while deterring frivolous litigation, § 1915(b) requires 

that an IFP prisoner make an initial payment towards the 

filing fee, but permits the prisoner to pay the balance of his or 

her fees over an extended period of time. Pursuant to this 

scheme, the initial partial filing fee can be withdrawn only 

“when funds exist” in the prisoner’s account.54 Thereafter, 

monthly payments, pegged at 20 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 create a 

payment scheme that would ensure fees be paid as 

expeditiously as possible or that would create tension with an 

inmate’s constitutional right of access to the courts.56

Citing Newlin v. Helman, the government argues that 

sequential recoupment 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 

suggest, 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 (10th 
19

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 practicable.

However, that is not what Congress did. Although Congress 

wanted to encourage indigent prisoners to 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-asyou-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 

inconsistent 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 “statutory 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 life 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. 

McGuire, 516 F.2d 820, 823 (3d Cir. 1975).
20

Moreover, concerns that sequential repayment will not 

sufficiently deter meritless claims are alleviated by subsection 

(g)’s “three strikes” rule.60 That is a “powerful economic 

incentive” aimed specifically at repeat 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

meritorious 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 their claims.

63

Accordingly, there is a clear difference between the 

purpose 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, we 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 in Torres, the 

statutory requirement, that all filing fees be paid, deters 

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 fee collection in order to advance the 

congressional concern with frivolous lawsuits.65

Nevertheless, we recognize that the contrary view, as 

expressed by the Court of Appeals for the Seventh Circuit in

Newlin, has gained some support. In Newlin, the Court

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 was concerned that, “[u]nless payment begins soon 

after the event that creates the liability, this will not happen[]”

and prisoners could file “multiple suits for the price of one.”67 

However, that analysis conflates the distinct objectives of 

ensuring payment of all filing fees and expediting payment of 

fees. Neither the text of the statute nor the legislative history 

supports this view. In fact, that interpretation is in direct 

conflict with the text of § 1915(b) because the PLRA’s filing 

 

65 In addition to the “three strikes” rule of subsection (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 

case 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 remains 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 explicitly 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 inmate can file “multiple suits for the price of 

one.” The prisoner still has to pay 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

The 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 imprisonment (and likely avoid them 

altogether)[]”

70 is also misplaced. Although appellate courts 

do not agree on the interpretation of the payment mechanism 

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

that an inmate’s obligation to fully pay all fees incurred is 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 “until the filing fees are paid”); see also

Torres 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.”); In 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 recoupment) 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 find nothing in the 

legislative history of § 1915 that would allow us to impute 

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

the observation of the Court of Appeals for the Fourth Circuit 

that “[t]he garnishment of more than twenty percent of an 

indigent inmate’s already meager income crosses the line 

from deterrence to punishment and was not the intent behind 

§ 1915.”

74

 

(holding that § 1915’s filing-fee requirement 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 nonprisoner, 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 simultaneous 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 until 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 garnishment 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 of an inmate’s income is taken to pay his filing 

fees.”).

74 Id.
24

We therefore conclude that sequential recoupment 

harmonizes subsection (b)(2) with the purpose of the statute,

while avoiding the constitutionally suspect result of erecting 

barriers to courts that would make some inmates choose 

between attempting to seek redress for legitimate claims and 

having enough money in one’s prison account to purchase 

items required for basic hygiene.75

C. Constitutional Concerns

Our conclusion is consistent with the 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 questions are 

avoided,” our duty is to “adopt the latter.”76

Siluk 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 prisoner unable to 

buy necessary hygiene supplies.77 The government argues 

 

75 See also id. at 246-47 (explaining that the sequential

interpretation 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 where 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. Zavaras, 94 F.3d 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 

medical 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 therefore inapplicable in the prison context. 

Thus, the government concludes, adopting the simultaneouspayment interpretation to § 1915(b)(2) simply will not force a 

prisoner to choose between paying for a lawsuit and 

satisfying 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 had 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 249, 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 Civil 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, construe 

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, pens, 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 regarding 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, 

we concluded that “requiring a prisoner to pay filing fees in a 

civil case does not, without more, violate 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, simultaneous 

recoupment of filing fees from previous suits could impede a 

prisoner seeking redress for abuses 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 injury.”); see also Torres, 612 F.3d 
27

construe the PLRA in a way that would prevent prisoners 

from vindicating their fundamental rights in a judicial 

forum.

89

We realize, of course, that several 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 cannot 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.

The Supreme Court has 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 level of serious 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 interpretation 

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 

applied 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.

CONCLUSION

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 the prisoner elects to pursue, thereby 

adopting the sequential recoupment rule advocated by the

petitioner.

 

91 Gomez, 490 U.S. at 864.
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 than 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 prisoner 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 (“PLRA”) 

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. 

Because 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 

face 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 prisoners. 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 files an 

appeal in forma pauperis, the prisoner shall be 

required to pay the full amount of a filing fee. 

The court shall assess and, when funds exist, 

collect, as a partial payment of any court fees 

required by law, an initial partial filing fee of 20 

percent of the greater of —

(A) the average monthly deposits to the 

prisoner’s account; or

(B) the average monthly balance in the 

prisoner’s account for the 6- month period 

immediately preceding the filing of the 

complaint or notice of appeal.

(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 

prisoner shall forward payments from the 

prisoner’s account to the clerk of the court each 

time the amount in the account exceeds $10 

until the filing fees are paid.

This provision, while clearly (1) requiring prisoners to 

pay filing fees in full, and (2) permitting prisoners who 

qualify for IFP status 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 support 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 (10th Cir. 2010) (unpublished) (same); 

Atchison v. Collins, 288 F.3d 177, 180-81 (5th Cir. 2002) 

(per curiam) (same); Lefkowitz v. Citi-Equity Grp., Inc., 146 

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

F.3d 429, 435-36 (7th Cir. 1997) (same), overruled on other 

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

But see Torres v. O’Quinn, 612 F.3d 237, 242-53 (4th 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 ambiguous 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. Timbers 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 

‘cumulative 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.”); AbdulAkbar, 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 28 
4

U.S.C. § 1915(b) do not apply to habeas corpus petitions or to 

appeals 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 percent 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. It is clear 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 many 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 20% 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. Cal. 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 structure 

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 payments 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 installment 

payments on the amounts remaining for the same action or 
5

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 

required 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 each 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 percase 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 

addition, § 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 these 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 

with 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 the 
6

economic impact of their lawsuit 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 (observing 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 436 (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, postponing payment of the fees for later-filed 

suits until after the end of imprisonment (and likely avoiding 

them altogether),” and “[t]he PLRA is designed to require the 

prisoner to bear some marginal cost for each legal activity”); 

see also Torres, 612 F.3d at 256 (Niemeyer, J., dissenting) 

(observing that the majority’s holding, allowing 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 also 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. Admin., 96 F.3d 28, 30 (2d Cir. 1996). In 

DeBlasio, 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 provision 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 get 
7

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 longer 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 concerns, 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 adequate 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 indigent 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 Courts 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 Department 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 draft 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 

prisoners’ 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 Torres 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 engage 

in further legal action. But the 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 and 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 with 

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.