United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1511

___________ Larry L. Christiansen, * * Appellant, * * v. * * Harold W. Clarke, Director, * Appeal from the United States Department of Correctional * District Court for the District Services; and Dave Avery, * of Nebraska. Superintendent, Community * Corrections Center, Lincoln, * Nebraska, * * Appellees. *

___________ Submitted: April 17, 1998 Filed: May 29, 1998

___________ Before BEAM, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Larry C hristiansen, a former inmate of the Community Corrections Center i n Lincoln, Nebraska, was placed on work release approxi mately nine months prior to the completion of his sentence. Before Mr. Christiansen was placed in the program, itsThe Honorable David L. Piester, United States Magistrate Judge for the District 1 of Nebraska. See 28 U.S.C. § 636(b)(1)(B); see also Fed. R. Civ. P. 72(b). TheHonorable Richard G. Kopf, United States District Judge for the District 2 of Nebraska. -2- director required him to sign a statement acknowledging that costs for room and board would be deducted from his inmate account for the duration of th e work-release period. Mr. Christi ansen signed under protest, asserting that the director did not have th e statutory authorityto withhold funds to cover the cost of a prisoner's room and board. Upon the completion of Mr. Chri stiansen's sentence and his release from the program, the prison withdrew $2,790 from his account.
Mr. Christiansen filed suit in distr ict court, alleging that the prison had deprived him of his p roperty without due process of law in violation of 42 U.S.C. § 1983 , § 1985(3), an d § 1988. The court allowed him to proceed in forma pauperis (IFP ) under 28 U.S.C. § 19 15(a). Shortly thereafter, a magistrate judge recommended that 1 Mr. Christiansen's action be dismissed for failure to state a claim, on the ground that Mr. Christiansen had no property interest in the wages that he earned while on work release. The district court adopted the recommendation and dismissed the complaint
sua sponte , b efore service of process and without giving leave to amend it. See 2 8 U.S.C. § 1915(e)(2)( B)(ii). Mr. Christiansen appeals. We affirm the judgment of the district court. 2

I. Mr

. Christiansen makes two arguments. He first contends that 28 U.S.C

. § 1915(e)(2)(B)(ii) is unconstitutional because it a llows the district court to dismiss the clai m of an indigent prisoner plaintiff for failure to state a claim before service o f pr ocess and without leave to amend. Because a court may not generally dismiss th e claim of a paying plaintiff under Fed. R. C iv. P. 12(b)(6) before service of process and without leave to amend, Mr. Christiansen argues that the statutory provision violates-3-

his rights to due process and equal protection. See U.S. Const. amend. XIV, § 1

. Sec ond, he argues that the district court erred in holding as a matter of law that hi s complaint did not state a claim. We address this second issue first.
Mr. Christiansen maintains that he was denied due process when the defendants deprived him of his wages without statutory authority. As the district court noted , however, Neb. Re v. Stat. Ann. § 83-184(3) gives the director of correctional services the authority to collect from work-release inmates "such costs incident to the person's confinement as the Director of Correctional Services deems appropriate an d reasonable." As the court held, moreover, because work release is a privilege that may be gr anted at the director's discretion, see Neb. Rev. Stat. Ann. § 83-184(1)(b) , Mr. Christiansen did not have a right to work release, and thus he did not have a right to the full amount of his salary. See Ervin v. Blackwell , 733 F.2d 1282, 1286 (8 Cir. th 1984).

We ag ree that under our holding in Ervin, because Mr. Christiansen' s participation in the wor

k-release program was voluntary, and because he exchanged a portion of his otherwise protected salary for participation in that program, he does not have a constitut

ionally protected property right to the full amount of his salary. More importantly, however, Mr. Christiansen has simply not stated a due process claim. He does no t complain that he was denied a hearing or that he was denied access t o constitutionally required procedures; he merelyseeks restitution. If the prison violated state law by deducting funds for unauthorized expenses, t hen Mr. Christiansen may file a suit for conversion, if one is available, in an appropriate court. He has not, however, alleged any facts that suggest that his right to due process was violated.

II. Nor are we persuaded that 28 U.S.C. § 1915(e)(2)(B)(ii) is itsel f unconstit utional. Mr. Christiansen asks us to determine whether the IFP statut e survives equal protection rational-basis scrutiny, and we find that it does. Under that-4-

standard, we review the statute to determine whether it is "rationally related to a legitimatestate interest." City of New Orleans v. Dukes , 427 U.S. 297, 303 (1976).

Itis we ll settled that Congress has a legitimate interest in deterring meritles s prisone r litigation. There is abundant evidence that, since the first IFP statute wa s enacted in 1892, prisoners' suits have accounted for both a disproportionate number of claims filed under IFP statutes and a disproportionate number of meritless claims. See, e.g., Roller v. Gunn , 107 F.3d 227, 230 (4 Cir. 1997), cert. denied , 118 S. Ct. 19 2 th (1997) (noting that in

the Fourth Circuit in 1995, IFP filings accounted for almost half of the caseload, and that prisoners were responsible for 75 percent of those filings); see also Nicholas v . Tucker , 114 F.3d 17, 20 (2 Cir. 1997), petition for cert. filed (U.S. nd Oct. 9, 1997) ("[s]uffice it to say that federal courts spend a n inordinate amount of time on prisoner lawsuits, only a very small percentage o f which have any merit"). In 1996, Congr ess responded by passing the Prison Litigation Reform Act (PLRA), whic h amended a previous version of § 1915 so that § 1915 now creates monetary an d procedural disincentives to the filing of meritless cases. Roller , 107 F.3d at 230-31

. We do not doubt that in preserving scarce judicial resources by deterring baseless , frivolous, and malicious suits, Congress w as furthering a legitimate state interest. See, e.g., In re Sindram , 498 U. S. 177, 179-80 (1991) ( per curiam ), andBankers Life and Casualty Co. v. Crenshaw , 486 U.S. 71, 81-82 (1988). Nor do we doubt that Congress chose means rati onally calculated to accomplish its intended end. The monetary provisions of the PLRA certainly withstan d
cons titutionalscrutiny in that respect. See, e.g. , Nicholas , 114 F.3d at 20-21, an d Roller , 10 7 F.3d at 233-34. Likewise, we believe that the PLRA's additiona l procedural barriers, like the one at issue in this case, have a rational justification. This provi sionmerely raises the expected cost to a prisoner of filing a meritless lawsuit

. Bec ause prisoners, even under the PLRA, initially pay a reduced filing fee (the y receive, in effect, an interest-free loan to pay the full filing fee), see 28 U.S.C

. § 1915(b), and bec ause prisoners have excessive amounts of free time on their hands,-5-

they are more likely than paying plaintiffs to file meritless suits. By allowing district courts to dismiss all meritless claims before service of process and without giving leave to amend, the statute reduces the cost of those suits to the judicial system.
Even more importantly, however, because under the PLRA prisoners can fil e only three frivolous, malicious, or meritless suits at the initially reduced rate, see 2 8 U.S.C. § 1915(g), the provision, by increas ing the likelihood that a prisoner's meritless claim will be dismissed, raises the expected cost to the prisoner of each such filing by pushing him or her one step closer to initially having to pay the full filing fee. Thus, because the provision both reduces the burdens on the judicial sys tem and increases the cost to prisoners of filing meritless claims, it is rationally related to the legitimat e interest that the statute seeks to further.
III. Mr. Christiansen contends , however, that in Nietzke v. Williams , 490 U.S. 319 (1989), the Supreme Court held that courts may not dismiss meritless IFP claim s wit hout adhering to the provisions of Fed. R. Civ. P. 12(b)(6). We believe that Mr. Christiansen's relian ce on Nietzke is misplaced. That case, in interpreting the IFP statute before it was amended by the PLRA, holds only that the statute did no t authorize courts to dismiss suits, a s frivolous, for failing to state a claim. Nietzke , 490 U.S. at 320, 326, 331.
The case does contain a discussion of Congress's intent to put indigent an d paying plaintiffs on the same footing, id. at 329-30, but the holding of the Court was si mplythat a complaint may fail to state a claim without being frivolous. Id. at 331

. The Co urt never intimated that the Constitution required Congress to place thes e various pl aintiffs on an equal footing; it stated only that putting them on an equal footing was Congress's purpose in passing the statute. Id. at 330. Given the legitimate state interest in deterring meritless claims, however, we believe, as we have said, that-6-

the Consti tution certainly authorizes Congress to adjust its notion of "equal footing " enough to inconvenience those who would take unfair advantage of the statute.

IV. For the reasons stated, we affirm the district court. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.