Everett R. Lyon v. Del Vande Krol

127 F.3d 763, 1997 WL 638238
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 17, 1997
Docket96-3752, 96-3754
StatusPublished
Cited by3 cases

This text of 127 F.3d 763 (Everett R. Lyon v. Del Vande Krol) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Everett R. Lyon v. Del Vande Krol, 127 F.3d 763, 1997 WL 638238 (8th Cir. 1997).

Opinions

MURPHY, Circuit Judge.

The district court dismissed the 42 U.S.C. § 1983 action of Everett R. Lyon, an Iowa prisoner, for failure to pay the filing fee required by § 804(d) of the Prisoner Litigation Reform Act (PLRA), Pub.L. No. 104-134, 110 Stat. 1321, §§ 801-810 (Apr. 26, 1996) (to be codified at 28 U.S.C. § 1915(g)), but on reconsideration it concluded that the section is unconstitutional and reinstated the action with leave for Lyon to request in forma pauperis status. The state defendants filed a petition requesting review of the district court’s decision that section 1915(g) violated Lyon’s right to equal protection because it deprived him of court access, and their request for interlocutory review was granted.

[764]*764Lyon brought this action against Iowa prison officials and Chavbad Lubaviteh,2 alleging that they prevented him from practicing his religion in violation of 42 U.S.C. § 1983. He requested damages and equitable relief, including permission to participate in Jewish services and community meals and to purchase Kosher food. Lyon had previously filed some twelve other civil actions while in prison, four of which had been dismissed as frivolous.3 When Lyon filed this complaint in May 1996, he had $138.40 in his prison account and $64.52 in his prison savings account and was receiving $67.20 in prison wages each month. His initial request for in forma pauperis status was denied because he had at least three prior actions which had been dismissed as frivolous and section 1915(g) therefore requires full payment of the filing fee unless the prisoner is in “imminent” physical danger.

After Lyon moved for reconsideration on the basis of constitutional challenges, the United States intervened to uphold the statute. The district court concluded that the statute violated Lyon’s equal protection rights in that it burdened his fundamental right to court access and strict scrutiny revealed that the provision was not narrowly tailored to prevent abusive prisoner litigation since it only curbs repeat litigation by prisoners who can not afford the filing fee and does not take into account the varying sentences and circumstances of different prisoners.

The United States and Iowa prison officials argue in response that section 1915(g) does not violate Lyon’s equal protection rights. They contend that the district court erred in applying strict scrutiny because the statute does not burden a fundamental right and prisoners and indigents are not suspect classes. They also assert that section 1915(g) is rationally related to the legitimate government interest of preventing abusive litigation.

Congress enacted PLRA with the principal purpose of deterring frivolous prisoner litigation by instituting economic costs for prisoners wishing to file civil claims. See, e.g., H.R. Conf. Rep. No. 104-378, at 166-67 (1995); 141 Cong. Rec. S14626 (daily ed.) (Sept. 29, 1995) (statement of Sen. Dole). The in forma pauperis statute now requires all prisoners to pay court filing fees for civil cases. It differentiates among prisoners on method of payment, however. Prisoners who have not had three prior cases dismissed as frivolous need only pay a percentage of the fee at the outset and the remainder over time, and these litigants will not be barred from pursuing a claim by inability to make the initial required partial payment. 28 U.S.C. § 1915(b)(l)-(4). In contrast, section 1915(g), commonly known as the “three strikes” provision, directs that prisoners who have had three previous civil suits or appeals dismissed as malicious, frivolous, or for failure to state a claim must prepay the entire filing fee. They otherwise cannot proceed on their claim unless they are “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The section states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. '

28 U.S.C. § 1915(g).

Since the enactment of PLRA, a number of circuits have examined the constitutionality of its provisions. They have concluded that its fee requirements do not employ suspect classifications, deprive prisoners of the right [765]*765to court access, or violate rights to equal protection. See, e.g., Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir.1997) (citations omitted) (section 1915(g)); Hampton v. Hobbs, 106 F.3d 1281, 1286-87 (6th Cir.1997); Roller v. Gunn, 107 F.3d 227, 233-34 (4th Cir.1997) (citations omitted). Several have also concluded that the fee requirements of PLRA do not have an impermissible retroactive effect, e.g., Mitchell v. Farcass, 112 F.3d 1483, 1487 (11th Cir.1997), including where the triggering three dismissals occurred before the passage of the statute. E.g., Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.1996); Green v. Nottingham, 90 F.3d 415, 420 (10th Cir.1996).

In order for Lyon to raise his constitutional challenge to section 1915(g) he must show that he has standing. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The core component of standing is that the “plaintiff must allege personal injury fairly traceable” to the challenged action. Id. at 751, 104 S.Ct at 3324. In the context of alleging an unconstitutional burden on the right of access to court, it is not sufficient for standing to show that court access could be impeded. Rather, a prisoner must show that it actually has been. Lewis v. Casey, — U.S. -, -, 116 S.Ct. 2174, 2179, 135 L.Ed.2d 606 (1996).

Lyon has not shown that the fee requirements imposed by PLRA have deprived him of his access to court. The record shows that Lyon had sufficient funds to pay the filing fee. Reasonable costs may be imposed on persons who want to sue without unconstitutionally burdening the right to court access. Lumbert v. Illinois Dep’t of Corrections, 827 F.2d 257

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127 F.3d 763, 1997 WL 638238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everett-r-lyon-v-del-vande-krol-ca8-1997.