In re Jewell WILLIAMSON, Petitioner
No. 86-1382
United States Court of Appeals, Eighth Circuit
March 31, 1986
Rehearing Denied June 9, 1986
824 F.2d 1336
Our review of the indictment, stipulated facts, exhibits and trial transcript shows that the Government proved the exact facts alleged in the indictment. Therefore, no variance exists. Mosley‘s argument really challenges the inferences that the district judge drew from the evidence in finding that Mosley intended to defraud AYC. In considering this claim, we review the evidence and all reasonablе inferences that can be drawn from it in the light most favorable to the Government. United States v. Moore, 764 F.2d 476, 478 (7th Cir. 1985) (citations omitted). In so doing, this Court finds that the district court reasonably inferred that Mosley intended to defraud AYC.
Mosley‘s final argument has no merit. In it, he asserts that the district court used an intangible rights theory of fraud to find intent at trial and an active concealment theory of fraud to deny Mosley‘s motion for a new trial. At trial, the district court stated: “... I would find an intent to defraud has been proven by the government based on the difference between the sale price and the leaseback price, based on the active concealment by Mr. Mosley, and based on the injury to AYC.” Transcript at 84 (Apr. 23, 1984) (emphasis added). In denying Mosley‘s Motion for New Trial, the district court stated: “I don‘t think there is anything you can say, Mr. Gray, to persuade me that I can‘t take evidence of active concealment into account on the intent to defraud issue. I clearly can and did before, and I will now.” Transcript at 50 (July 10, 1984). In each instance, the district court properly looked to the acts of concealment as one basis for finding intent to defraud. United States v. O‘Boyle, 680 F.2d 34, 36 (6th Cir. 1982) (citations omitted); United States v. White, 673 F.2d 299 (10th Cir. 1982).
Conclusion
Mosley‘s conviction is AFFIRMED.
Submitted Oct. 16, 1985.
Floyd R. Finch, Jr., Kansas City, Mo., for petitioner.
John L. Oldenburg, Jr., Jefferson City, Mo., for resрondents.
Before HEANEY, ARNOLD and JOHN R. GIBSON, Circuit Judges.
HEANEY, Circuit Judge.
Jewell Williamson, an inmate of the Missouri State Penitentiary, petitions this Court under Rule 21(a) of the Federal Rules of Appellate Procedure for a writ of mandamus directing the Honorable Scott O. Wright, Chief United States District Court Judge for the Western District of Missouri, and the Honorable Richard H. Ralston, United States Magistrate for the district, to process his
I. PROCEDURAL BACKGROUND
The United States District Court for the Western District of Missouri recently adopted a practice1 of requiring a partial filing fеe in civil rights actions instituted by prisoners. Although the judges and magistrates in the Western District of Mis
On December 14, 1984, Williamson filed a section 1983 complaint against Lee Roy Black, Director of the Missouri Department of Corrections; Bill Armontrout, Warden of the Missouri State Penitentiary; and three physicians, Drs. Benitez, Mack, and Marvin. Williamson alleged that the defendants were deliberately indifferent to his serious medical needs in violation of the eighth amendment by failing to provide corrective surgery for Williamson‘s ruptured hernia.3 Williamson‘s complaint was provisionally filed in forma pauperis, and the case was rеferred to Magistrate Ralston for review under
The defendants then timely filed a motion requesting Magistrate Ralston to reconsider granting Williamson unconditional in forma pauperis status, contending that Williamson had sufficient assets and income to pay a portion of the filing fee under the district court‘s partiаl payment plan. The magistrate reviewed a record of the transactions in Williamson‘s inmate trust account and, on May 10, 1985, granted the defendants’ motion for reconsideration. Based on the district court‘s formula for calculating the partial fee, the magistrate determined that Williamson could pay a partial fee of $20.80 in four $5.20 monthly installments. Williamson filed objections to the magistrate‘s ruling, and Chief Judge Wright affirmed Magistrate Ralston‘s order. Although Williamson has not paid the partial filing fee, the district court has not dismissed Williamson‘s action, and is allowing him to proceed pro se pending this Court‘s ruling on Williamson‘s mandamus petition.
II. DISCUSSION
The issues raised in Williamson‘s petition for a writ of mandamus are whether a district court has the authority under
Federal courts have the statutory authority to permit the commencement of a civil action without prepayment of fees or costs “by a person who makes affidavit that he is unable to pay such costs or give security therefor.”
[t]he permissive language of
28 U.S.C. § 1915 authorizes the court, in its discretion, to determine who is entitled to the benefits of litigation without cost.* * * * * *
It is logical that if the court may grant a waiver of 100 percent of the costs on such a variety of items, the court alsо is vested with the discretion to waive a lesser percentage of such costs.
The courts of appeals that have reviewed partial payment plans have held that a district court has the authority under section 1915 to require an indigent litigant to pay at least minimal service and filing fees when evidence of the litigant‘s present financial situation indicates that he may tender the payment without undue financial hardship. E.g., Jones v. Zimmerman, 752 F.2d 76 (3d Cir.1985); Collier v. Tatum, 722 F.2d 653 (11th Cir.1983); Smith v. Martinez, 706 F.2d 572 (5th Cir.1983); Evans v. Croom, 650 F.2d 521 (4th Cir. 1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982); Zaun v. Dobbin, 628. F.2d 990 (7th Cir.1980); In re Stump, 449 F.2d 1297 (1st Cir.1971). We have no quarrel with this principle. We believe, however, that certain requirements and limitations must guide the district court‘s discretion in this matter.
The very purpose of section 1915 “is to provide an entre, not a barrier, to the indigent seeking relief in the federal court.” Souder v. McGuire, 516 F.2d 820, 823 (3d Cir.1975). Accordingly, “[w]e cannot accept a construction of this statute which conditions the presentation of possibly meritorious claims on the plaintiff‘s willingness to become completely destitute.” In re Smith, 600 F.2d 714, 715 (8th Cir.1979); see also Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40, 69 S.Ct. 85, 89, 93 L.Ed. 43 (1948) (one need not make himself wholly destitute to enjoy the benefits of in forma pauperis statute).
Yet, we have also recognized that section 1915 “was not enacted for the purpose of requiring the public to underwrite frivolous lawsuits.” Id. at 715. Partial payment plans are designed to help curb the indiscriminate filing of frivolous lawsuits “by weeding out those [actions] where it appears the plaintiff himself has some financial resources but has such lack of good faith in his action that he is unwilling to make any contribution, however small, towards meeting its filing costs.” Evans, 650 F.2d at 523.5 Thus, proponents of partial payment plans assume that the number of frivolous lawsuits filed in the district court will decrease if an inmate is confronted with “the initial dilemma which faces most other potential civil litigants: is the merit of the claim worth the cost of pursuing it?” Carroll v. United States, 320 F.Supp. 581, 582 (S.D.Tex.1970); see, e.g., Collier, 722 F.2d at 655; Smith, 706 F.2d at 573; Evans, 650 F.2d at 523.
We are, of course, cognizаnt of the increase in prisoner civil rights actions filed in the district courts within this circuit. See Goff v. Menke, 672 F.2d 702, 705 (8th Cir.1982). A recent study conducted by the Federal Judicial Center, however, indicates that partial payment plans have not significantly reduced the number of prisoner civil rights actions filed, nor have these plans been successful in “weeding out” frivolous actions. See generally T. Willging, Partial Payment of Filing Fees in Prisoner In Forma Pauperis Cases in Federal Courts: A Preliminary Report (Federal Judicial Center 1984) [hereinafter “Federal Judicial Center Report“]. Moreover, there are other effective methods of decreasing the number of civil rights actions
We have reviewed the various plans approved in the other circuits and the Federal Judicial Center‘s Report. Based on this review, we conclude that any partial payment plan within this circuit must, consistent with the Federal Judicial Center‘s Report, contain at a minimum the following features.
First, any partial payment plan should be published as a local rule or en banc order, and should be uniformly applied by each judge within the district. A local rule is more widely disseminated, and therefore is preferable. Federal Judicial Center Report at 26. Information concerning the plan should be attached to the application forms for in forma pauperis petitions and on the affidavits in support of the petitions. Id. at ix.
Second, the partial fee must be based upon a small, but fixed, percentage either of the assets available in the inmate‘s prison trust account at the time the complaint is filed, or of the inmate‘s average monthly income. Id. at 25-26.7 If average monthly income is used, small gifts, including those received during the December holiday, should not be included in the computations. Id. at 26. It will be up to the district court to decide how to compute average monthly income. We suggest that a period of two to six months before the filing of the complaint be used for this purpose, subject to the exclusion of gifts, as just mentioned. The plan may provide for payment all at once or in reasonable installments. Although section 1915 doеs not provide for the payment of fees in installments, see Caldwell v. United States, 682 F.2d 142, 143 (7th Cir.1982), the statute does not forbid such a system, either, just as it neither expressly authorizes nor expressly forbids partial filing fees themselves. The district court should have the latitude of making this choice.
The inmate should also be given a reasonable opportunity to see and respond to the account information submittеd by the prison officials so that he may, if necessary, correct any misinformation or misleading inferences that may be drawn from the information, e.g., Jones, 752 F.2d at 79, or demonstrate special circumstances justifying the payment of an even lower fee. Evans, 650 F.2d at 525; Federal Judicial Center Report at 26-27.
If the plan is keyed to the plaintiff‘s current account balance, the district court may require a fee higher than the fixed percentage of the inmate‘s trust account balance if the inmate has withdrawn assets from his account solely to avoid paying a filing fee. However, before withdrawals from the account may form a basis for requiring a higher fee, the district court must make a specific finding “either from the nature or timing of the withdrawal, or both, or from other specific circumstances, that the рurpose of the withdrawal appears to have been intended to avoid his obligation under the rule to pay in whole or in part filing costs.” Evans, 650 F.2d at 525-26. Before the district court makes this specific finding, the inmate must “be given some reasonable opportunity, after appropriate notice, to explain and refute any
Third, to avoid unreasonable delays in the proceedings, the district court should provisionally file the complaint during the period of investigation until expiration of the time for compliance with the court‘s order. Should the court determine thаt the inmate cannot pay a partial filing fee, the court shall grant the inmate unconditional leave to proceed in forma pauperis. During the period of provisional filing, the Court should not stay the action, but should continue to process it in the ordinary course.
Finally, in order that an inmate may realistically confront the initial dilemma that faces most other litigants, “is the merit of the claim worth the cost of pursuing it[,]” Carroll, 320 F.Supp. at 582, the inmate must be apprised of what may be expected of him under the partial payment plan. Thus, information concerning the partial payment plan should be distributed to each penal institution within the district for posting in the prison law library. Federal Judicial Center Report at 27.
III. CONCLUSION
Although the partial payment plan presently used in the Western District of Missouri does not mеet all the minimum standards we have outlined, we deny Williamson‘s petition for a writ of mandamus confident that the district court will process Williamson‘s complaint in accordance with this opinion.
JOHN R. GIBSON, Circuit Judge, concurring and dissenting.
I am in full agreement with the standards the Court today announces with respect to partial payment of filing fees. I respectfully disagree only with respect to the application оf the “First” standard to this particular case. I would simply remand for application of the remaining standards. After all, our announced standards arise only from the opinion of the Court today. Application of all of the standards, including that contained in paragraph “First” on page 8, will result in Williamson not being required to pay a partial fee solely because there wаs not a local rule or en banc order authorizing the action of the district court.
William Wentworth FOSTER, Appellant v. Forest HANNA and Other Unknown Circuit Clerks and Judges, Appellees
No. 85-2168
United States Court of Appeals, Eighth Circuit
March 31, 1986
Submitted Nov. 15, 1985.
William W. Foster, pro se.
David F. Oliver, Kansas City, Mo., for appellees.
Before HEANEY, ARNOLD and JOHN R. GIBSON, Circuit Judges.
PER CURIAM.
William Wentworth Foster appeals from an order of the district court for the Western District of Missouri dismissing his pro se civil rights action for failure to pay the first installment of a $56.48 partial filing fee imposed as a condition for granting Foster leave to proceed in forma pauperis. The propriety of the partial filing fee requirement presently used in the district courts for the Western District of Missouri has been analyzed and disapproved, in part,
Notes
The type of actions at which the rule is directed, though generally stated in passable pro forma allegations, considering the liberality in pleading allowed pro se complaints, has proved all too often to be without merit and frequently appears to have been begun without any real hope of success as “mere outlets for general discontent in having to undergo penal restraint or of personal satisfaction in attempting to harass prison officials” or to enjoy what one describes as a prisoner‘s “field day in the courts, at public expense,” Weller v. Dickson, 314 F.2d 598, 601 (9th Cir.1963), cert. denied 375 U.S. 845, 84 S.Ct. 97, 11 L.Ed.2d 72. If the prisoners, by filing an indigent affidavit in such actions, may acquire at will indigent status, they will have every incentive to indulge any inсlination they may have to harass their custodian.
Evans, 650 F.2d at 523 (footnote omitted).