The Honorable Paul A. Magnuson, Chief Judge, United States Distr ict Court for 1 the District of Minnesota. The Ho norable Dennis D. O & Brien, Chief Judge, United States Bankruptc y 2 Court for the District of Minnesota.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________________ Nos. 97-2819/2820/3319/3322

________________________ Gary Lefkowitz, * * Appellant, * * Appeals from the United States v. * District Court for the * District of Minnesota. Citi-Equity Group, Inc., * * Appellee. *

___________ Submitted: June 4, 1998 Filed: June 23, 1998

___________ Before BOWMAN, Chief Judge, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Ga ry Lefkowitz, a federal inmate, appeals from two district court order s 1 affirming orders of the bankruptcy court and two identical district court orders 2The bankruptcy court granted CEG partial summary judgment in the declaratory 3 judgment actio n, holding that Mr. Lefkowitz had been effectively removed as general partner. The district court affirmed the bankruptcy court & s order. Mr. Lefkowitz did not appeal this order. -2- imposing filing fee requirements pursuant to 28 U.S.C. § 1915(a)(2) and (b)(1) a s enacted by the Prison Litigation Reform Act (PLRA). We affirm.
Mr. Lefkowitz was president of Citi-Equity Group, Inc. (CEG), a Californi a corpora tionthat formed real estate limited partnerships to build low- and moderate

income housing. Mr. Lefkowitz and CEG were general partners of these limite d pa rtnerships. In 1994, Mr. Lefkowitz was charged in a 47-count indictment with engagin g in a continuing financial crimes enterprise and with various counts of fraud. Thr ee creditors then filed an involuntary bankruptcy petition against CEG under 1 1 U.S.C. § 303. Mr. Lefkowitz was convicted, and this court affirmed all but two counts. See United States v. Lefkowitz , 125 F.3d 608 (8th Cir. 1997), cert. denied , 118 S. Ct. 15 27 (1998). Under the bankruptcy reorganization plan, KEG Equity Group (KEG ) agreed to purchase CEG & s general partnership interests in 70 limited partnerships , conditioned on Mr. Lefkowitz & s removal as general partner of tho se partnerships. CEG subsequen tly filed an adversary proceeding against KEG and Mr. Lefkowitz in th e bankrup tcy court seeking a declaration that Mr. Lefkowitz had been effectivel y removed a s general partner. Mr. Lefkowitz filed, inter alia, a counterclaim agains t 3 CEG, claiming that CEG breached a fiduciary duty owed to him, and that an accounting was necessary. In a subsequent pleading, Mr. Lefkowitz argued that the bankruptcy judge should recuse himself from the case.
The bank ruptcy court granted CEG summary judgment on Mr. Lefkowitz & s fi duciary duty and accounting claims, concluding that Mr. Lefkowitz had failed t o produce any evidence showing a breach of a fiduciary duty or any resulting damages. The bankruptcy court further held that, because CE G had represented in discovery that-3-

it no longer had the requested records to enable it to produce an accounting, no further relief fo r an accounting could be granted. The bankruptcy court also denie d Mr. Lefkowitz & s motion for recusal. Mr. Lefkowitz appealed these orders to the district court, which affirmed, concluding that a court-ordered accounting was not require d because Mr. Lefkowitz had a ccess to records through the discovery process, and that Mr. Lefkowitz had failed to sustain his burden of proving that CEG breached a fiduciary duty. The district court also concluded that the bankruptcy court did no t abuse its discretion in denying the recusal motion.
Mr. L efkowitz filed two notices of appeal and applied to proceed in form a pauper is (IFP). After the district court denied Mr. Lefkowitz IFP status because h e failed to submit a certified copy of his trust account statement under 28 U.S.C

. § 1915(a)(2), Mr. Lefkowitz challenged the imposition of the PLRA & s prisoner filing fee requirements, arguing that such require ments applied only to civil rights cases filed by p risoners challenging their conditions of confinement, and alternatively, that th e filing fee requirements violated his equal protection rights and his rights of access to the courts. The district court rejected these arguments, and ordered Mr. Lefkowitz to pay an initial partial filing fee in each of his two appeals. Mr. Lefkowitz has appealed those orders. Bankruptcy Issues

. As to the fiduciary duty claim, we reject Mr. Lefkowitz & s argument that CEG bore the burden to show an absence of material facts. Becaus e Mr. Lef kowitz bears the burden of proof at trial, he had to designate “specific fact s showing that there is a genuine issue for trial.” See Celotex Corp. v. Catrett , 477 U.S. 317, 324 (19 86) CEG need not support its summary judgment motion with affidavits negating Mr. Lefkowitz & s claim. See id. at 323. Because Mr. Lefkowitz & s response to the summary judgment motion contained mere conclusory stateme nts, we conclude that summary judgmen

t was properly granted to CEG. See Armour & Co. v. Inver Grove Heig hts , 2 F.3d 276, 279 (8th Cir. 1993) (conclusory affidavits insufficient basis t o deny summary judgment). We also agree that because Mr. Lefkowitz had alternative-4-

discovery a venues available to procure the information he needed, the denial of a n accoun ting was not error. See Bradshaw v. Thompson , 454 F.2d 75, 79 (6th Cir. ) (accounting is extraordinary remedy available only when legal remed y inadequate), cert. denied , 409 U.S. 878 (1972).
We also conclude the motion for recusal was properly denied, as Mr. Lefkowitz asserted nothing more tha

n that the bankruptcy court had previously ruled against him. See Liteky v. U nited States , 510 U.S. 540, 549, 555 (1994) (adverse rulings alone not grounds for bias or partiality motion).
PLRA Issues . As amended by the PLRA, 28 U.S.C. § 1915(a)(2) provides that “[a] prisoner s eeking to bring a civil action or appeal a judgment in a civil action o r proceeding witho ut prepayment of fees or security therefor . . . shall submit a certified copy of the trust fund account statement.” Section 1915(b)(1) further provides that a prisoner wh o brings “a civil action or files an appeal” IFP is required to pay the ful l amount of the filing fee, and that the cour t is to assess and, when funds exist, collect an in itial partial filing fee. Congress did not define “civil action” in the statute. Whil e se veral courts have noted that Congress promulgated the PLRA to curtail abusiv e prisoner litigation, see, e.g. , Santana v . United States , 98 F.3d 752, 755 (3d Cir. 1996), we conclude that, under the plain language of the statute, the phrase “civil action o r appeal” is not limited to chall enges to conditions of confinement, and encompasses the instant commercial litigation. With respect to Mr. Lefkowitz & s constitutional challenges to the PLRA & s prisoner filing fee requirements, we agree with our fellow circuits that these fee provisions d o not de ny prisoners constitutionally guaranteed access to courts. See, e.g. , Tucker v

. Branker , No. 96-5177, 1998 WL 232792, at **3-5 (D.C. Cir. May 12 , 1998) (and cases ci ted therein). We also conclude that Congress had a rational basis for treatin g pr isoners differently from nonprisoners by requiring them to pay the filing fees (albeit in installments), i.e., that Congress has a legitimate intere st in curbing meritless prisoner-5-

litigation, and that m aking indigent prisoners partially responsible for the costs of their litigationwould decrease the amount of such meritless litigation. See Christiansen v. Clarke , No. 97-1511 , slip op. at 4-5 (8th Cir. May 29, 1998); Nicholas v. Tucker , 114 F.3d 17, 2 0-21 (2d Cir. 1997), cert. denied , 66 U.S.L.W. 3748 (U.S. May 18, 1998 ) (No. 97-8275); Roller v. Gunn , 107 F.3d 227, 233-34 (4th Cir.), c ert. denied , 118 S. Ct. 192 (1997). Thus, Mr. Lefkowitz & s equal protection challenge fails.
Mr. Lefkowitz argues that the twenty-percent-of-income rule in sectio n 1915(b)(1) (initial partial filing fee should be assessed on basis of 20% of averag e monthly deposits or 6-month average balance in pr isoner account) should be applied on aper inmate basis, rather than on a per case basis. We disagree. Because the PLRA fee pr ovisions were designed to require prisoners to bear financial responsibility fo r each action they take, the twenty-percent rule should be applied per case. See Newlin v. Helman , 123 F.3d 429, 436 (7th Cir. 1997), cert. denied , 118 S. Ct. 707 (1998).
Ac cordingly, we affirm the judgments of the district court. Mr. Lefkowitz & s motion to recuse two circuit judges is denied as moot. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.