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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 35887

LERAJJAREANRA-O-KEL-LY,

Plaintiff-Appellant,

v.

MARK SCHOW,

Defendant-Respondent.

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2009 Opinion No. 59

Filed: August 24, 2009

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Bonneville County. Hon. Richard T. St. Clair, District Judge. 

Order denying motion to waive sheriff’s fee for service of writs, affirmed.

Lerajjareanra-o-kel-ly, appellant, appearing pro se. 

Mark Schow, respondent, did not participate on appeal. 

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GRATTON, Judge

Lerajjareanra-o-kel-ly (Appellant) appeals from the district court’s order denying his 

motion to waive the sheriff’s fee for service of writs of execution and garnishment. For the 

reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

In June 2008, the district court entered a judgment pursuant to a jury verdict in favor of 

Appellant against Mark Schow in the amount of $8,448.28. A debtor’s examination was 

conducted before the district court in October 2008. At the debtor’s examination, Appellant

moved the district court to enter an order waiving the sheriff’s fee for service of writs of 

execution and garnishment. The district court denied Appellant’s motion for a waiver and he

appeals.
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II.

ANALYSIS

Appellant’s only argument to this Court is that he was denied equal protection of the law 

because, as a prisoner, Idaho’s statutory scheme for proceeding in forma pauperis does not 

provide for a waiver of the sheriff’s fee for service of writs of execution and garnishment when 

such a waiver is available for nonprisoner indigent persons. Specifically, Appellant argues that 

Idaho Code § 31-3220(6)1provides for a waiver of fees in certain cases for indigent persons but 

excludes prisoners and Idaho Code § 31-3220A2governing indigent prisoner filing fees 

generally requires at least partial payment of fees in violation of his right to equal protection of 

the laws.

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Schow, as the Respondent, did not file a brief or otherwise participate in this appeal. 

Whether there is an equal protection violation because indigent nonprisoners are treated 

 

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Idaho Code Section 31-3220(6) governs waiver of fees for indigents, but specifically 

excludes prisoners. That statute provides that “the officers of the court shall issue and serve all 

process, and perform all duties in cases in which the person is found by the court to be 

indigent. . . . Payment of fees for service of process and witnesses, where required, shall be paid 

out of the district court fund of the county in which the action is filed.” I.C. § 31-3220(6). It is 

not entirely clear from the language of the statute whether indigent nonprisoners are eligible for a 

waiver of a fee that is directed to the sheriff for service of writs of execution or garnishment. 

See, e.g., Robert F. Koets, Annotation, What Constitutes “Fees” or “Costs” Within Meaning of 

Federal Statutory Provision (28 U.S.C.A. § 1915 and Similar Predecessor Statutes) Permitting 

Party to Proceed In Forma Pauperis Without Prepayment of Fees and Costs or Security 

Therefor, 142 A.L.R. FED. 627 (1997) (examining what fees can be waived in a similar federal 

statute); E. E. Woods, Annotation, What costs or fees are contemplated by statute authorizing 

proceeding in forma pauperis, 98 A.L.R.2d 292 (1964). However, for the purpose of this 

opinion only we will assume, without deciding, that an indigent nonprisoner is eligible for a 

waiver of the fee directed to the sheriff for service of writs of execution or garnishment and that 

an indigent prisoner is not eligible for such a waiver.

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Idaho Code Section 31-3220A governs the inability of prisoners to pay certain fees. The 

statute outlines a procedure whereby an indigent inmate may make an initial partial payment of 

court fees and authorizes money to be deducted from the inmate’s prison account to be applied 

toward the balance. The statute also contains a safety-valve provision, which provides that “in 

no event shall a prisoner 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.” I.C. § 31-3220A(7).

3 Although not entirely clear from Appellant’s pro se briefs, we will construe his equal 

protection challenge to the statute as a facial attack and not an as-applied challenge, in part 

because Appellant did not follow the procedures contained within the statute in an attempt to be 

granted partial waiver of cost. 
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differently than indigent prisoners under Idaho’s statutory scheme for waiver of certain fees is a 

question of first impression in Idaho.

The United States Code contains a statutory scheme for proceeding in forma pauperis that 

is substantially similar to the Idaho Code sections at issue in this case. Like the Idaho statutes, 

the United States Code contains different requirements for indigent prisoners who are attempting 

to proceed in forma pauperis than for indigent nonprisoners. Specifically, the first section of the 

statute grants a complete waiver of fees for nonprisoners and the section applicable to prisoners 

provides, in pertinent part:

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 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.

(3) In no event shall the filing fee collected exceed the amount of fees 

permitted by statute for the commencement of a civil action or an appeal of a civil 

action or criminal judgment.

(4) In no event shall a prisoner be prohibited from bringing a civil action 

or appealing a civil or criminal judgment for the reason that the prisoner has no 

assets and no means by which to pay the initial partial filing fee.

28 U.S.C. §§ 1915 (b)(1)-(4). 

The jurisdictions that have evaluated 28 U.S.C. § 1915 on constitutional grounds have 

concluded that there is no equal protection violation despite the different treatment prisoners 

receive as compared with nonprisoner indigents. See, e.g., Tucker v. Branker, 142 F.3d 1294, 

1301 (D.C. Cir. 1998) (holding that “making the filing-fee provision of the PLRA applicable to 

indigent prisoners but not to other indigent civil plaintiffs has a rational basis and does not 

violate the equal protection component of due process”); Nicholas v. Tucker, 114 F.3d 17, 20 (2d 

Cir. 1997) (holding that “the Act easily passes the rational basis test. The problem of frivolous 

prisoner lawsuits has been well-documented and need not be repeated here. Suffice it to say that 
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federal courts spend an inordinate amount of time on prisoner lawsuits, only a very small 

percentage of which have any merit”); Mitchell v. Farcass, 112 F.3d 1483, 1488 (11th Cir. 1997) 

(noting that, “unlike other prospective litigants who seek poor person status, prisoners have all 

the necessities of life supplied . . . . For a prisoner who qualifies for poor person status, there is 

no cost to bring a suit and, therefore, no incentive to limit suits to cases that have some chance of 

success”); Roller v. Gunn, 107 F.3d 227, 234 (4th Cir. 1997) (noting that “in sum, the equal 

protection question is not a close one”); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997)

(concluding that “the fee requirements of the Prison Litigation Reform Act also do not violate a 

prisoner’s right to equal protection”).

The above-cited cases all apply a similar constitutional analysis that begins with the 

proposition that prisoners are not a suspect class and that the federal statutory scheme does not 

violate a prisoner’s fundamental right of access to the courts. Therefore, the Courts employed 

rational basis review. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (holding that

“unless a classification trammels fundamental personal rights or is drawn upon inherently

suspect distinctions such as race, religion, or alienage, our decisions presume the 

constitutionality of the statutory discriminations and require only that the classification 

challenged be rationally related to a legitimate state interest”). The courts all noted that the 

governmental interest behind 28 U.S.C. § 1915 was to curb the growing number of meritless 

prisoner suits being filed. The Courts noted many rational reasons for treating prisoners and 

nonprisoners differently, including: prisoner lawsuits have been skyrocketing in number;

prisoner filings have become somewhat of a recreational activity for the prisoners; prisoners 

have abundant free time and do not have to pay for life’s necessities; and, given the nature of 

prisoner accounts, the post hoc installment payments are easier to administer for prisoners than 

for the public at large. Therefore, the federal courts have unanimously concluded that there is no 

equal protection violation based on the difference of treatment between prisoner and nonprisoner 

indigents. 

Under Idaho’s statutory scheme, the treatment of indigent prisoners compared with 

indigent nonprisoners is essentially the same as it is under the federal statutory framework. 

Similarly, this Court has already noted the legislature’s intent in passing I.C. § 31-3220A to 

reduce frivolous prisoner litigation:
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After reviewing Section 31-3220A it is apparent that the intent of the 

legislature was to create a disincentive for the filing of frivolous claims by 

inmates and assuring financial accountability of prisoners. Section 31-3220A 

requires inmates to make decisions concerning the merits of their case and 

discourages them from filing frivolous lawsuits. Discouraging frivolous prisoner 

litigation and assuring prisoner financial accountability are legitimate concerns of 

the state and the classification is based on the state’s goal of reducing frivolous 

litigation. 

Madison v. Craven, 141 Idaho 45, 48-49, 105 P.3d 705, 708-09 (Ct. App. 2005) (footnote 

omitted). Given the relevant federal authority and the legitimate legislative intent behind the 

different treatment of indigent prisoners verses indigent nonprisoners within the Idaho Code, we 

conclude that Appellant’s equal protection claim fails. 

III.

CONCLUSION

The difference in treatment pursuant to I.C. §§ 31-3220 and 31-3220A between indigent 

prisoners and indigent nonprisoners is justified by a legitimate legislative purpose. Therefore, 

we conclude that Appellant’s claim that the statutory scheme at issue in this case violates a 

prisoner’s right to equal protection of the laws fails. Neither costs nor fees are awarded to either 

party, in part, because the Respondent did not participate in this appeal.

Chief Judge LANSING and Judge GUTIERREZ, CONCUR.