Everett R. Lyon v. Del Vande Krol

Before MURPHY HEANEY, Circuit Judges, ROSENBAUM,1 District Judge. MURPHY, Judge. Circuit The district court dismissed the 42 U.S.C. action Lyon, Everett R. an Iowa prisoner, for failure to fee 804(d) required by § Litiga- Prisoner (PLRA), Reform Act Pub.L. No. 104- 110 Stat. §§ 801-810 (Apr. 1996) (to be codified at 28 U.S.C. 1915(g)), but on reconsideration it concluded that the section is unconstitutional and reinstated action with leаve to request status. The state defendants petition filed a requesting review of the dis- trict court’s decision that vio- Lyon’s right lated equal protection be- deprived cause it access, him of court request their interlocutory review was granted. Rosenbaum,

1. The ta, Honorable James M. sitting by dеsignation. United ‍​‌‌​​‌‌‌​​​​​‌‌‌​‌‌​‌‌‌​​​‌​​‌​‌‌​​‌‌​‌‌​​​‌‌‌‌​‍Judge States District for the District of Minneso- 764 principal the PLRA with enacted Congress against Iowa action brought this litiga- prisoner deterring frivolous Lubaviteh,2 al- of and Chavbad

prison officials prison- costs for instituting economic by practic- him from prevented they that leging See, e.g., H.R. civil claims. wishing to file 42 ers of U.S.C. violation in religion ing his (1995); 104-378, at 166-67 Rep. No. equita- and Conf. damages requested § He ed.) (Sept. (daily Cong. Rec. S14626 participate relief, permission including ble Dole). in 1995) (statement forma of Sen. community meals and and in services Jewish prisoners requires all now pauperis statute previ- had food. Kosher purchase It differ- civil cases. filing fees for actions court civil other twelve ously filed some pay- of prisoners on method among entiates had been dis- of which four prison, while in not had ment, who have Prisoners this Lyon filed however. When frivolous.3 missed as frivolous neеd as prior cases dismissed in his three 1996, he had May $138.40 complaint in the outset of the fee at percentage a only pay prison in sav- his and prison account $64.52 time, these liti- and the receiving remainder $67.20 and was ings account a pursuing from not be barred request gants will His initial wages each mоnth. required inability the initial to make be- claim was denied pauperis status 1915(b)(l)-(4). § payment. 28 U.S.C. partial actions prior three had at least cause he commonly contrast, 1915(g), section as frivolous and been dismissed which had provision, di- “three strikes” pay- the requires full known as 1915(g) therefore pre- thrеe have had prisoners who is in rects that prisoner the filing fee unless the ment of mali- as appeals or dismissed civil suits vious danger. physical “imminent” frivolous, a claim cious, failure to state or for on for reconsideration Lyon moved After They oth- filing fee. prepay the entire must challenges, constitutional of the basis unless on their claim proceed cannot erwise uphold the stat- intervened United States serious danger of imminent they are “under that the concluded The district court ute. 1915(g). § injury.” 28 U.S.C. physical protection Lyon’s equal violated statute section states: fundamental his that it burdened rights in bring a civil prisoner shall In no event a scrutiny re- and strict ‍​‌‌​​‌‌‌​​​​​‌‌‌​‌‌​‌‌‌​​​‌​​‌​‌‌​​‌‌​‌‌​​​‌‌‌‌​‍court access right to ac- judgment in a civil appeal a action or narrowly was provision not that the vealed if the this section proceeding under tion or prisoner litigation prevent abusive tailored occasions, has, prior more on 3 or by prison- litigation repeat only it curbs since any facili- detained in or while incarcerated filing fee and does not afford can ers who appeal a court an action or ty, brought varying sentences into account not take that was dismissed States of the United prisoners. of different and circumstances malicious, frivolous, that is grounds it prison offi- and Iowa The United States relief upon to state claim or fails response that section argue in cials is may granted, unless Lyon’s violate does not physical danger of serious under imminent They that district ' contend injury. scrutiny because the applying strict erred in 1915(g). 28 U.S.C. right not does burden statute of of a number the enactment suspect Since indigents not prisoners and are constitutionality have examined circuits assert They classes. also They have concluded provisions. of its legitimаte rationally related to the 1915(g) is suspect employ do not requirements fee preventing its of abusive interest right classifications, deprive litigation. what to consider have occasion dismissed has since been as Lubaviteh 2. Chavbad under legitimately be counted dismissal a defendant. faсt judicial notice We take that one argument, indicated counsel 3. At oral prisoners when a notify courts now that some from a letter Lyon’s prior had resulted dismissals it complaint is filed seemingly frivolous had been as- court which the district sent to future, per- against in the them could count Be- signed аnd then dismissed. a file number voluntarily. opportunity to dismiss it mit them appeal, we do disposition of this our cause of access, (7th Cir.1987). equal to court or violate F.2d There is no See, Johnson, protection. e.g., Carson requirement constitutional that court fees al (5th 1997) (citations F.3d Cir. ways be if litigant waived indigent. See omitted) (section 1915(g)); Hampton Kras, United States v. 409 U.S. Hobbs, 1281, 1286-87 Cir.1997); 631, 640, 93 S.Ct. (1973); 34 L.Ed.2d 626 but — (4th Gunn, 227, Roller v. 107 F.3d S.L.J., see M.L.B. -, U.S. Cir.1997) (citations omitted). Several have ---, ---, 555, 560-64, 117 S.Ct. 569- requirements also concluded that the fee of 70, 136 L.Ed.2d (summarizing 473 cases impermissible PLRA not do have retroac where court fees must be if they waived effect, Farcass, tive Mitchеll v. 112 F.3d prevent litigants from vindicating basic fun (11th 1483, Cir.1997), including 1487 where rights). damental At Lyon the time filed his triggering three dismissals occurred be complaint, he had over prison his $180 passage E.g., fore the of the statute. Ade accounts and was receiving $67.20 (5th Hammons, pegba v. 103 F.3d 387 wages each month. This is more than the Cir.1996); Nottingham, Greеn v. 90 F.3d required then filing $120 as a Lyon fee. has (10th Cir.1996). 420 most of his basic provided necessities as a prisoner, payment of the fee would In Lyon order for to raise his constitution have forced him go to without these essen challenge al to 1915(g) he must show tials. He would still have had re standing. Wright, $60 he has Allen v. 468 maining fee; after 737, 750, paying the 3315, 3324, U.S. 104 amount S.Ct. (1984). monthly wages his would component L.Ed.2d 556 The core have been of purchase available to standing necessary other “plaintiff is that inci allege must dentals. personal injury Myers v. fairly Hundley, traceable” to the chal Cf. Cir.1996). lenged action. Id. at at S.Ct alleging the contеxt of an unconstitutional 1915(g) prohibit Section does not court, right burden on the of access to it is from pursuing legal they claims if have had standing not sufficient for to show that court “three prior strikes” or three dismissals. It Rather, impeded. access be could only ability proceed limits their in forma must aсtually show that it has been. Lewis pauperis. Lyon pursue is thus free to his —Casey, U.S. -, -, pays fees, action if required he and sec- (1996). 2179, 135 L.Ed.2d 606 tion 1915(g) has injury not caused an actual Lyon has not require- shown that the fee to him because he was not without the neces- imposed by ments deprived PLRA have him sary bring resourсes to his claim to court.4 of his access to court. The record shows that Lyon had sufficient funds to Since has not shown that section fee. imposed Reasonable costs 1915(g) has injury, caused an actual he does persons who want to sue without unconstitu- not have standing depriva- to assert that this tionally burdening right to court access. right equal protection.5 violates his Corrections, Dep’t Lumbert v. Illinois jurisdiction 827 We therefore do not have to eon- Lyon's “pre- 4. The dissent pauperis just characterizes claim as status because he has some mini- cisely of fundamental mal financial resources available. claim for Section 1915(g) pauperis vigilantly guarded prisoner’s which we have does not restrict in forma status resources, courts," prisoner's on the basis of the access to the but be- very but the record reveals previously cause the has filed several little about the nature of the claim because the We frivolous cases. need not reach the constitu- proceedings point in the district court to this by Lyon particular tional issues raised under the issues, only preliminary have related not to the presented facts his becausе access to court has developed merits. If the case had ‍​‌‌​​‌‌‌​​​​​‌‌‌​‌‌​‌‌‌​​​‌​​‌​‌‌​​‌‌​‌‌​​​‌‌‌‌​‍been further not been foreclosed. course, appeal regular and an taken in the we would have a fuller record. The lack of a devel- also asserted in the district court that oped problems record is of course one of the 1915(g) process violated due and had an im- interlocutory appeals. associated with permissible changed retroactive effect because it cases, dismissals; dissent also cites decided before the legal consequences previous passage proposition pris- for the that a the district court concluded the statute was not precluded oner should not be problems. from in forma retroactive and did not have notice that section raised, clearly demonstrated and the has issues constitutional sidеr the bring access to the courts to has blocked his appeal must be dismissed. practices qualified he religious his claim: dismissed, and interlocutory appeal is status as it is determined the district so is remanded the case attempted bring a nonprisoners; he Lyon must time may set a 1983; 42 U.S.C. pro se action under underlying first his filing fee or have pay the provision’s Lyon’s challenge to the claim dismissed. amendment constitutionality, the court below dismissed pursuant the action dissenting. HEANEY, Judge, Circuit “fairly traceable To show he suffered I would affirm respectfully dissent. I not, ma injury,” Lyon need as the personal oрinion holding court’s well-reasoned district bring nickel to jority suggests, spend his last of the 1915(g) unconstitutional section nonprisoners face a less claim where the bringing a civil a requires in requirement. We held In re Wil onerous regardless of his filing fee pay claim to a (8th Cir.1986), liamson, that 786 F.2d 1336 pauperis status. ability qualify fоr forma of the basic though even an inmate is assured out, the district court majority points As the “an expense, at the state’s necessities of life section holding on the fact that based its pauper- in forma inmate should not denied Lyon’s equal protection 1915(g) violates simply he be able to is status because Lyon’s by burdening physical and material pay for some small is no the courts. There right of access to prison.” ... within the Id. at comforts provision does so. The question that the holding in on the We based our Williamson 1915(g) is to purported purpose of section ‍​‌‌​​‌‌‌​​​​​‌‌‌​‌‌​‌‌‌​​​‌​​‌​‌‌​​‌‌​‌‌​​​‌‌‌‌​‍“ principle accept cannot a con ‘[w]e that brought suits the number of frivolous curtail which conditions [section 1915] struction of by requiring prisoners that who by prisoners possibly presentation méritorious the or more claims dis- have had three plaintiffs willingness to become claims on the or filing fees whether pаy missed must ” completely (quoting Id. at 1338 destitute.’ pau- in forma prisoner qualifies the for Smith, 714, 715 Cir. In re Nonprisoners not face such peris status. do 1979)); v. E.I. DuPont de see also Adkins provision nor the differ- requirement, a does Co., 331, 339, Nemours & U.S. sentences and circum- entiate between the (1948) (“We 85, 89, agree 93 L.Ed. 43 cannot рrisoners who would stances of the individual absolutely destitute to ... that one must be claims. file such pauperis] forma enjoy [in the benefit of the panel avoids this issue alto- decision statute.”). show Lyon has met his burden to Lyon by focusing whether gether instead on challenge standing he has section by paying the entirely bankrupted would be 1915(g) Lyon that section panel that a lack of has also shown filing fee. The holds protection rights. prisoners’ equal violates complete impoverishment prevents number of suits challenge Although the it is true that the having standing from increased, by prisoners there is brоught has PLRA’s effect on his constitutional signifi- increase has Lyon must be no indication that panel’s requirement number simply cantly out-paced the increase completely standing to have broke country circuit, nor require- people incarcerated this law of our and such a not thе in claims prin- the reasons for the increase the same have ment violates ease, prisoners any In nonpris- if been established.6 ciples 1915(g) itself: as section amid the bring legitimate claims in forma continue to may challenge a statute under oner dismiss as status, large of claims the courts not have a number should cognizable (i.e., failing state a complete frivolous or higher demonstrate burden Newman, destitution) Pro Se O. challenge. Lyon claim. See Hon. Jon bring such a officers, and inade- ‍​‌‌​​‌‌‌​​​​​‌‌‌​‌‌​‌‌‌​​​‌​​‌​‌‌​​‌‌​‌‌​​​‌‌‌‌​‍fully any trained correctional increase in the number 6. A list of reasons for complaints simple grievance in the num- quate frequently increase internal unfair likely high prisoners include the ber of would procedures. prison overcrowding, carc- a lack of incidence of Litigation: Looking Prisoner Needles in claims flooding the courts is a compelling for Haystacks, 62 L.Rev. Brook. so, interest. Even it cannot (1996) important (citing victories won show that the classification of potentially friv- prisoners through judicial regarding claims “prisoner” olous claims into “nonprison- conditions). passing er” necessary claims is or even effective in 1915(g), Congress members of stated that аddressing problem. In this regard, the purpose provision require is to panel explain decision fails to the necessity in pay a lawsuit in the classifying prisoners Lyon differently like See, way nonprisoners. same as of qualifying for in pau- S14611, Cong. (daily Sept. Rec. ed. peris status. For reject these rеasons I 1995) (statement Dole) (stating of Sen. panel opinion’s conclusion that is with- procedures establishes so out standing to challenge section 1915(g),and citizens, prisoners, “like law-abiding will I would affirm the district court’s determina- have to the court fees associated with provision tion that is uncоnstitutional. lawsuit”). However, filing a provision opposite has the effect. being Instead of

subjected nonprisoners, to the rules as same

inmates who qualify would otherwise for in status must now up fees front.

Although suspect are not a class determining proper STILLMUNKES, Brian J. Debtor— review, standard of access to Appellant/Cross-Appellee, the courts is a right7 that re- mains with individual even after incarсer- Stillmunkes, Reine S. Debtor- 97, ation. Livingston, Burton v. 791 F.2d Appellant/Cross-Appellee, (8th Cir.1986). Although for- rights, feits some does not lose all v. Rather, of his Id. prisoner’s fun- HY-VEE EMPLOYEE BENEFIT rights damental him “through pris- follow TRUST, PLAN AND Creditor- gate, and the walls do not foreclose his Appellee/Cross-Appellant. protect access to rights.” the courts to those 96-4151, 1185, Nos. (citing Courtney Bishop, Id. v. 97-1537. 409 F.2d (8th Cir.1969)). Lyon’s claim that he Appeals, United States Court religious suffered a violation of his freedom is Eighth Circuit. precisely of fundamental claim for which vigilantly guarded we have Submitted June prisoner’s access to the courts. Decided Oct. Because affects a funda- right, mental we must review the statute scrutiny”

under a “strict standard. v. Stiles

Blunt, Cir.1990). Un- scrutiny, uphold

der strict we a classification

only if it narrowly drawn to serve a “com-

pelling governmental Plyler interest.”

Doe, 202, 216-17, 457 U.S. 102 S.Ct. (1982). govern- 72 L.Ed.2d 786 prove

ment must it compelling has a

interest in the classification it has selected.

Stiles, 912 F.2d at 263. The

might show that curtailing the number of McDonnell, 539, 578-79, 2963, 2985-86, (1974).

7. See 418 U.S. 41 L.Ed.2d 935 Wolff

Case Details

Case Name: Everett R. Lyon v. Del Vande Krol

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 17, 1997

Citation: 127 F.3d 763

Docket Number: 96-3752, 96-3754

Court Abbreviation: 8th Cir.