United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 97-2828MNMI

Kenneth E. Murray, *

*

Appellant, *

* Appeal from the United States

vs. * District Court for the

* District of Minnesota

Francis E. Dosal, Clerk *

*

Appellee.

On the court's own motion, the opinion filed July 13, 1998, is

withdrawn and the attached opinion is filed int its stead.

July 20, 1998

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit
The Honorable H. Franklin Waters, United States District Judge for the Western 1

District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2828

___________

Kenneth E. Murray, *

*

Appellant, *

* Appeal from the United States

* District Court for the 

* District of Minnesota.

v. *

* [PUBLISHED]

Francis E. Dosal, Clerk, *

*

Appellee. *

___________

Submitted: March 9, 1998

Filed: July 20, 1998

___________

Before BEAM and HEANEY, Circuit Judges, and WATERS, District Judge. 1

___________

PER CURIAM.

Kenneth Murray filed this petition under the All Writs Act, 28 U.S.C.A. § 1651,

alleging the clerk of court violated his constitutional rights by refusing to file a civil

rights complaint unless he paid an initial partial filing fee pursuant to the provisions of

the Prison Litigation Reform Act of 1995 (PLRA), 28 U.S.C.A. § 1915 (West Supp.

1998). Appellee, Francis Dosal, was directed to respond to the petition. After the
The Honorable David S. Doty, United States District Judge for the District of 2

Minnesota.

The Honorable Arthur J. Boylan, United States Magistrate Judge for the District 3

of Minnesota.

Before the district court can authorize the commencement of any prisoner's suit 4

in forma pauperis, 28 U.S.C. § 1915(a) requires that the prisoner submit (1) an affidavit

of poverty that includes a statement of all assets such prisoner possesses, and, in

"seeking to bring a civil action," as here, (2) a certified copy of the prisoner's trust fund

account statement. Rule 3 of the Federal Rules of Civil Procedure provides that "[a]

civil action is commenced by filing a complaint with the court." Accordingly, the

PLRA would seem clearly to prevent a prisoner from filing an action in forma pauperis

until he has complied with the requirements of subsection (a) of section 1915. This is

now the practice, as we understand it, in all district courts in this circuit. Our recent

opinion in Garrett v. Clark, however, takes a contrary position, holding that the PLRA

allows a prisoner to file the complaint and then satisfy the requirements of section

1915(a) within a reasonable time. No. 97-2789, 1998 WL 337902, at*1 (8th Cir. June

26, 1998). We believe that this is an incorrect interpretation of the statute and is

contrary to the policies established by Congress with the enactment of the Prison

Litigation Reform Act of 1995. In our view, such a rule will needlessly and improperly

create numerous case and docket management problems for the district courts in this

circuit. Nevertheless, we are bound by the decision in Garrett. Therefore, although we

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response was filed, the district court adopted the report of the magistrate judge and 2 3

dismissed the petition. This appeal followed. We affirm.

The PLRA was enacted "with the principal purpose of deterring frivolous

prisoner litigation by instituting economic costs for prisoners wishing to file civil

claims." Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997) (citing H.R. Conf. Rep. No.

104-378, at 166-67 (1995)). The PLRA "refashioned the procedures prisoners must

observe when seeking to proceed IFP [in forma pauperis] in civil actions." Mitchell v.

Farcass, 112 F.3d 1483, 1487 (11th Cir. 1997).

The PLRA's amendments to 28 U.S.C.A. § 1915 require prisoners who wish to

proceed IFP to meet certain requirements imposed by the statute. A prisoner seeking 4
would prefer to say, above, that section 1915 requires "prisoners who wish to proceed

IFP to provide the information necessary for the calculation and assessment of a partial

filing fee before filing a civil lawsuit," we note that Garrett precludes our doing so.

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IFP status must file an affidavit showing his assets and attesting to his impoverishment,

and submit a certified copy of his account statement for the six-month period preceding

the filing of the complaint or notice of appeal. 28 U.S.C.A. § 1915(a)(1) & (2). Even

though seeking IFP status, the prisoner is required to pay the full amount of the fee.

The court assesses and, when funds exist, collects as partial payment of the court fees

required by law, an initial partial filing fee of 20% 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. 28 U.S.C.A. § 1915(b)(1). However, the statute

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." 28 U.S.C.A. § 1915(b)(4).

After paying the initial filing fee, the prisoner must make monthly payments

equal to 20% of the preceding month's income credited to his prison account. 28

U.S.C.A. § 1915(b)(2). So long as the prisoner's account exceeds $10, prison officials

are given authority to take the 20 percent. These payments are sent to the clerk of the

court. The payments are deducted from the accounts until the full filing fee has been

paid. 

Since its enactment, a number of circuits have upheld the PLRA against a variety

of constitutional challenges. See e.g., Shabazz v. Parsons, 127 F.3d 1246 (10th Cir.

1997); Norton v. Dimazana, 122 F.3d 286 (5th Cir. 1997); Mitchell v. Farcass, 112

F.3d 1483 (11th Cir. 1997); Roller v. Gunn, 107 F.3d 227 (4th Cir. 1997), cert. denied,

118 S. Ct. 192 (1997); Hampton v. Hobbs, 106 F.3d 1281, 1284 (6th Cir. 1997).

"They have concluded that its fee requirements do not employ suspect classifications,
Murray also relies heavily on the dissenting opinion of Judge Heaney in Lyon.

5

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deprive prisoners of the right to court access, or violate rights to equal protection."

Lyon, 127 F.3d at 764-65 (citations omitted). 

Murray first contends the filing fee requirements constitute an unconstitutional

barrier to access to the courts. He relies primarily on Lewis v. Casey, 518 U.S. 343

(1996), which he contends reaffirmed the fundamental nature of a prisoner's right of

access to the courts. He argues the right involved is a fundamental right and this court 5

must employ strict scrutiny in reviewing the restrictions placed on this right by the

PLRA.

"Congress has long regulated the access of indigent litigants to the federal

judicial system." Roller, 107 F.3d at 230. The imposition of a filing fee, over time if

necessary, has been held not to unconstitutionally burden the right to court access. See

e.g., In re Williamson, 786 F.2d 1336, 1339-41 (8th Cir. 1986)(Upholding the

imposition of partial filing fees on IFP plaintiffs). As the Fourth Circuit noted in Roller,

"the right of access to federal courts is not a free-floating right, but rather is subject to

Congress' Article III power to set limits on federal jurisdiction." Roller, 107 F.3d at

231. "The Supreme Court has never recognized an 'unlimited rule that an indigent at

all times and in all cases has the right to relief without the payment of fees.'" Id.

(quoting United States v. Kras, 409 U.S. 434 (1973)). 

Further in this case, Murray has failed to show that court access has been

impeded. Lyon, 127 F.3d at 765 (Prisoner lacks standing when he fails to show fee

requirements imposed by the PLRA have deprived him of his access to the court).

Rather, Murray merely argues he should not be forced to choose between spending the

limited funds in his prison account on small amenities or on pursuing a civil rights

action. 
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Given that both the initial partial fee and subsequent installment amounts are

modest, the payments are extracted only in the months when the prisoner's trust fund

account exceeds ten dollars, and the fact that the PLRA provides no prisoner shall be

prohibited from bringing an action "for the reason that the prisoner has no assets and

no means by which to pay the initial partial filing fee," we agree that the provisions

pass constitutional muster. We find persuasive the reasoning of the Fourth Circuit that:

[r]equiring prisoners to make economic decisions about filing lawsuits

does not deny access to the courts; it merely places the indigent prisoner

in a position similar to that faced by those whose basic costs of living are

not paid by the state. Those living outside of prisons cannot file a lawsuit

every time they suffer a real or imagined slight. Instead, they must weigh

the importance of redress before resorting to the legal system. If a

prisoner determines that his funds are better spent on other items rather

than filing a civil rights suit, "he has demonstrated an implied evaluation

of that suit" that the courts should be entitled to honor.

Roller, 107 F.3d at 233 (citation omitted). 

Murray next contends that requiring only prisoners to pay filing fees violates

their rights to equal protection of the laws. Neither prisoners nor indigents constitute

a suspect class and, as discussed above, the provisions do not implicate a fundamental

right. Roller, 107 F.3d at 234; Hampton, 106 F.3d at 1286. Thus, the PLRA's fee

requirements are upheld so long as they are rationally related to a legitimate

government interest. Clearly, Congress had a legitimate interest in making rules

governing the federal court system and a rational basis to believe the fee requirements

would serve to curtail abusive prisoner tort, civil rights, and conditions litigation.

Mitchell, 112 F.3d at 1488. See also Roller, 107 F.3d at 230 ("In 1995, prisoners

brought over 25% of the civil cases filed in the federal district courts."). 

Prisoners are not similarly situated to non-prisoners. They have their basic costs

of living paid by the government. "They often have free time on their hands that other

litigants do not possess. As a result, the federal courts have observed that prisoner
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litigation has assumed something of the nature of a 'recreational activity.'" Roller, 107

F.3d at 234 (citations omitted). See also Mitchell, 112 F.3d at 1489 ("Moreover,

prisoners have unique incentives to file meritless or frivolous lawsuits, e.g., to attempt

to obtain a 'short sabbatical in the nearest federal courthouse,' or to harass prison

officials or correctional officers." (citations omitted)). 

The fee requirements provide economic incentives that require prisoners to "stop

and think" before filing suit. Mitchell, 112 F.3d at 1488. See also Norton, 122 F.3d

at 291 ("The fee provisions of the PLRA, in a sense, level the playing field between

incarcerated i.f.p. litigants and other litigants in the federal courts."). We find the fee

provisions of the PLRA do not violate a prisoner's right to equal protection.

Murray's final contention is that the fee assessment provisions violate his right

to due process since prison authorities are given uncontrolled authority to take 20% of

the prisoner's account without the prisoner being given notice and an opportunity to be

heard, or without an evaluation made regarding the prisoner's ability to pay. Murray

relies on Mathews v. Eldridge, 424 U.S. 319 (1976) and Mahers v. Halford, 76 F.3d

951 (8th Cir. 1996), cert. denied, 117 S. Ct. 696 (1997). In this same vein, he also

argues the PLRA amendments to § 1915 are constitutionally infirm because there are

no procedures provided for determining the propriety of the fee assessment before the

funds are withdrawn.

In Mahers, we recognized that prisoners have a property interest in money

received from outside sources. Mahers, 76 F.3d at 954. In this case, the record is

devoid of information regarding the origin of the funds in Murray's account.

Nevertheless, we will start with the proposition that "[p]risoners do have a protected

interest in their money." Hampton, 106 F.3d at 1287. Thus, prisoners are entitled to

due process before they can be deprived of these funds. 

The question is what process is due before money in a prisoner's account can be

applied to a filing fee. Mathews requires us to consider three factors: (1) the private
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interest that will be affected by the official action; (2) the risk of an erroneous

deprivation of such interest through the procedures used, and the probable value, if any,

of additional or substitute procedural safeguards; and (3) the government's interest.

Mathews, 424 U.S. at 335.

We start with the proposition, as we did in Mahers, that incarceration, while it

does not deprive prisoners of the protection of the federal Constitution, does result in

restrictions and limitations being placed on the prisoner's constitutional rights. Mahers,

76 F.3d at 954 (citations omitted). Although a prisoner has an interest in his funds, he

is "not entitled to complete control over [his] money while in prison." Id. Thus, courts,

including this court, have approved debit procedures. Mahers, 76 F.3d at 954-56.

Mahers involved debits from an inmate's account for restitution obligations. There we

noted that "inmates are not absolutely deprived of the benefit of their money when part

of it is applied toward their restitution debts." Id. at 954-55. 

This statement applies with even more force to this case. Here the prisoner made

the voluntary decision to file a civil lawsuit. The funds are being used to pay the filing

fee requirements. As the Hampton court noted, 

[t]he funds are being utilized for the prisoner's benefit just as a nonindigent's money is used by him to proceed in federal court. Furthermore,

the Act charges a prisoner no more than anyone else who is adjudged able

to pay--and under much more generous payment terms. Thus, the

prisoner's private interests do not weigh in favor of requiring additional

procedures.

Hampton, 107 F.3d at 1287.

There is also very little risk of an erroneous deprivation. The PLRA requires the

prisoner to apprize the court of his financial status by filing an affidavit showing his

assets and attesting to his impoverishment and providing a certified copy of his account

statement. 28 U.S.C.A. § 1915(a)(1) & (2). It is the court and not the prison officials
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that assess the filing fee. Id., § 1915(b)(1). Further, the PLRA sets forth the

percentage of the money in the prisoner's account that may be taken for the payment

of the filing fee. Id., § 1915(b)(1) & (b)(2). The prison officials, or other agency

having custody of the prisoner, merely perform the administrative function of

deducting the fee from the prisoners' accounts and forwarding that fee to the clerk of

court "each time the amount in the account exceeds $10 until the filing fees are paid."

Id., § 1915(b)(2). 

The government's interest in the fee system, to reduce frivolous prisoner filings

by requiring the prisoner to weigh, as other litigants must, the economic cost of filing

suit, was discussed in detail above. "This interest, combined with the satisfactory

procedures provided and the weak private right in this case, compel the conclusion that

the Act does not violate a prisoner's right to procedural due process." Hampton, 106

F.3d at 1288. 

For the reasons discussed above, we affirm the district court's decision.

WATERS, Senior District Judge, concurring.

I agree that the Garrett cased filed on June 26, 1998, precludes this panel from

reading the PLRA amendments and applying them as we believe they are written, and,

thus, I concur in this opinion.

I write this separate concurrence to emphasize my agreement with footnote 4,

above, and to express my concern about the effect that the Garrett holding is likely to

have on the beneficial affect that the PLRA has already had on the filing by prisoners

of largely frivolous lawsuits.

I have been a trial judge in the Western District of Arkansas for almost 17 years.

During that period, experience has taught me that, over the years, trial courts have

become increasingly burdened by frivolous lawsuits, many, but by no means all, filed
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by prisoners with petty gripes about one thing or another, such as purported

constitutional claims that they were furnished with the wrong soap, and the like. Each

of these cases, irrespective of how frivolous, require substantial court time, detracting

from and delaying legitimate and important litigation before the court.

The Western District of Arkansas encompasses a largely rural area with no major

urban areas, and no prison facilities other than county and municipal jails, yet, for the

year prior to the PLRA, we had 389 prisoner cases filed, or 41% of our civil docket.

At times, the prisoner filings approached 60% of our civil filings. For the year after the

PLRA was instituted in the district, prisoner cases dropped to 217, or 20% of our civil

docket, a 44% decrease in filings of prisoner cases.

The figures for our sister district to the east, the Eastern District of Arkansas,

which has all of the institutions in the Arkansas prison system, also dramatically shows

that the PLRA has accomplished what congress intended. For the 12 month period

prior to the PLRA, that district had 955 prisoner cases filed, comprising 41% of its civil

docket. For the 12 months after the statute became effective, the filings dropped to 869

(33%) and, for the period from July 97 to June 98, there were 733 filings, constituting

only 31% of the civil filings.

I am fearful that, after the "jailhouse lawyers" and "recreational filers" learn

about Garrett, we will be right back where we started or nearly so. When they learn

that they don't have to submit with their complaint the required affidavit and statement

of account, most, if not all, will be filed without them. This will likely result in many

prisoner lawsuits being filed where there will never be compliance, requiring

procedures to be instituted by clerk's offices and district courts, and time spent, to keep

the docket cleared of these matters that aren't going anywhere.

If this court is going to prescribe procedures, guidelines or rules for district

courts to follow as it did in Henderson v. Norris, 129 F.3d 481 (8th Cir. 1997), I

suggest that it would be appropriate and effective, and still provide protection for the
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prisoner's rights, for trial courts to be directed to stamp nonconforming papers tendered

by a prisoner "received", as most, if not all, district courts in the circuit now do. The

clerk could be directed to then notify the prisoner of the deficiencies and PLRA

requirements, and give the prisoner 30 days to comply. If there was not compliance

during that time, the papers would not be filed and no lawsuit commenced. The papers

could then be returned to the prisoner.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. Regardless of whether we review this case under a strict

scrutiny or rational basis standard, it is my belief that these PLRA provisions are

unconstitutional. No one disputes that access to the courts is a fundamental right and

that prisoners must have “‘a reasonably adequate opportunity to present claimed

violations of fundamental constitutional rights to the courts.’” Lewis v. Casey, 116 S.

Ct. 2174, 2180 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 825 (1977)). Yet, the

majority effectively holds today that court access for some is more fundamental than

court access for others. 

The parade of horribles is not hard to imagine and prisoners are now faced with

impossible choices: choosing, for example, between spending money to bring a lawsuit

after being brutalized or sending money home to a child; making co-payments for

needed medical care or suing to protect one’s rights. The problems with these

provisions are endless; but in upholding the constitutionally of these provisions, the

majority, as well as many other circuit courts, have determined that prisoners, like nonprisoners, must make economic choices before filing lawsuits. In my judgment, this

argument is flawed because non-prisoners do not have to make such stark choices.

Non-prisoners who cannot afford filing fees may proceed IFP. While prisoners, who

also possess a fundamental right to court access, do not have the same right to proceed

IFP. 
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Courts have an obligation to protect minority interests when the Constitution is

violated by majoritarian will. I am deeply troubled when constitutional rights are

trampled in the name of political expediency, and prisoners are certainly an easy

political target. What particularly concerns me about today’s decision is that it will

have little, if any, effect in terms of curbing frivolous litigation. It may, however,

prevent important claims from being pursued in federal court for no meaningful reason:

Although it is true that the number of suits brought by prisoners has

increased, there is no indication that the increase has significantly outpaced the increase in the number of people incarcerated in this country

nor have the reasons for the increase in claims been established. . . . A

list of reasons for any increase in the number of complaints over a simple

increase in the number of prisoners would likely include the high

incidence of prison overcrowding, a lack of carefully trained correctional

officers, and inadequate and frequently unfair internal grievance

procedures.

Lyon v. Krol, 127 F.3d 763, 766 & n.6 (Heaney, J., dissenting). 

In the final analysis, “the degree of civilization in a society is revealed by

entering its prisons.” F. Dostoyevsky, The House of the Dead 76 (C. Garnett trans.,

1957). Problems within American prisons are well documented. Rather than allow

further entrance and examination of prison life, however, today’s decision has the

potential to prevent important claims from being adjudicated simply because of a

prisoner’s economic status. It is for this reason, and for the reasons stated above, that

I respectfully dissent. 

 A true copy.

Attest.
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CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.