Ronald Weaver Leo McKaye Morris Martin v. Raymond Toombs Robert Brown, Jr. Donald Mason Robert Mulvaney Ted Strassburg

948 F.2d 1004, 20 Fed. R. Serv. 3d 1185, 1991 U.S. App. LEXIS 26473, 1991 WL 224781
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 6, 1991
Docket90-1012
StatusPublished
Cited by108 cases

This text of 948 F.2d 1004 (Ronald Weaver Leo McKaye Morris Martin v. Raymond Toombs Robert Brown, Jr. Donald Mason Robert Mulvaney Ted Strassburg) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ronald Weaver Leo McKaye Morris Martin v. Raymond Toombs Robert Brown, Jr. Donald Mason Robert Mulvaney Ted Strassburg, 948 F.2d 1004, 20 Fed. R. Serv. 3d 1185, 1991 U.S. App. LEXIS 26473, 1991 WL 224781 (6th Cir. 1991).

Opinions

WELLFORD, Senior Circuit Judge.

Plaintiffs, Ronald Weaver, Leo McKaye, and Morris Martin, prisoners at a Michigan penal facility, Ionia Maximum Correctional Facility (IMCF), instituted a 42 U.S.C. § 1983 action alleging deprivation of various constitutional rights against defendants — three lower officials and the warden of IMCF — as well as the Director of the Department of Corrections. The magistrate granted plaintiffs’ motion to proceed in forma pauperis from the outset. After defendants filed a motion for summary judgment, the district court dismissed the case in a written opinion, finding no set of facts upon which relief could be granted to any of the plaintiffs against any defendant. The plaintiffs appealed the district court decision of December 6, 1989, proceeding in forma pauperis, in this court. The judgment was affirmed on October 11, 1990, 915 F.2d 1574. The defendants then made a motion in this court pursuant to 28 U.S.C. § 1915 and Fed.R.App.P. 39(a) for an order taxing costs in the amount of $128 against plaintiffs and allowing the costs to be satisfied by direct resort to plaintiffs’ prison accounts. We have appointed counsel for plaintiffs to determine the propriety of the assessment and direct collection of such costs without further court intervention.

Counsel for plaintiffs contends that application of the rule and the statute results in constitutional violations of plaintiffs’ rights. The first constitutional claim is that such application under the circumstances “chills the rights of appellants and pauper prisoners similarly situated to enjoy the first amendment right to petition the courts.”

[1007]*1007Next, plaintiffs contend that assessment and collection of such costs against in for-ma pauperis plaintiffs deny them equal protection and offends their due process rights under the fifth amendment. In addressing these constitutional claims, we first observe that there are few cases that deal with the constitutionality of assessing costs under Fed.R.App.P. 39(a).

I. ACCESS TO COURTS

A. First Amendment

We recently reviewed the question of assessment of costs by the district court against prisoners who had proceeded in forma pauperis in Sales v. Marshall, 873 F.2d 115 (6th Cir.1989). Judge Lively observed in Sales that being permitted to sue initially without paying costs did not insulate the prisoner from a later imposition of costs under 28 U.S.C. § 1915:

The plaintiff’s indigency does not prevent the taxation of costs against him. The statute that permits an indigent party to proceed in forma pauperis merely provides that such a person may commence a suit “without prepayment of fees and costs.” 28 U.S.C. § 1915(a) (emphasis added). The statute clearly provides for awarding “costs at the conclusion of the suit or action as in other cases.” 28 U.S.C. § 1915(e). Adopting this reading of § 1915, several courts of appeals have approved the taxation of costs against indigent civil rights plaintiffs. See Flint v. Haynes, 651 F.2d 970, 972-73 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982); Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir.1984); Lay v. Anderson, 837 F.2d 231, 232-33 (5th Cir.1988). However, when a party claims indigency, this court requires a determination of his or her capacity to pay the costs assessed.

873 F.2d at 120.

Flint v. Haynes, 651 F.2d 970 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982), involved a similar situation; there the Fourth Circuit permitted the district court to assess costs under § 1915 against in forma pauperis prisoner plaintiffs who had filed 42 U.S.C. § 1983 actions against prison officials.

The use of the word “prepayment” in subsection (a) indicates that Congress did not intend to waive forever the payment of costs, but rather it intended to allow qualified litigants to proceed without having to advance the fees and costs associated with litigation. By permitting the court to enter judgment for costs “as in other cases,” subsection (e) evinces a congressional intent that litigants may eventually be liable for costs. It is clear that § 1915 contemplates the postponement of fees and costs for litigants who are granted in forma pauperis status.

Thus, we find a district court is empowered to award costs even when it has previously granted a litigant the benefits of § 1915(a). We reached the same result in Perkins v. Cingliano, 296 F.2d 567, 569 (4th Cir.1961) in which we held “[sjection 1915(e) is too plain to leave any room for doubt, and completely disposes of the petitioner’s contention that costs may not be adjudged against him.” Accord, Duhart v. Carlson, 469 F.2d 471 (10th Cir.1972); Pasquarella v. Santos, 416 F.2d 436 (1st Cir.1969); Fletcher v. Young, 222 F.2d 222 (4th Cir.), cert. denied, 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 802 (1955); Moss v. Ward, 434 F.Supp. 69 (S.D.N.Y.1977); Carter v. Telectron, Inc., 452 F.Supp. 939 (S.D.Tex. 1976).

Id. at 972-73 (footnote omitted). See also Marks v. Calendine, 80 F.R.D. 24 (N.D.W.Va.1978) ($289 costs assessed against a “disposable monthly income” of $20 of the unsuccessful prisoner plaintiff).

The Flint court expressly declined to limit its holding to “exceptional cases where the claim is frivolous, malicious, or utterly without foundation.” 651 F.2d at 973. The court made its holding in response to plaintiffs’ argument that assessment of costs in such situations would hamper access to the courts, but concluded “when costs are assessed only in extreme or exceptional cases, those persons granted leave to proceed in forma pauperis have virtually ‘nothing to lose and everything to [1008]*1008gain,’ and the purpose of § 1915 — equal access for the poor and the rich — is distorted.” Id. (emphasis added) (footnote omitted). See also Jones v. Bales, 58 F.R.D. 458, 463 (N.D.Ga.1972), affd per curiam, 480 F.2d 805 (5th Cir.1973). The purpose expressed for the holding in Flint was to “assure that litigants will be required to assess the relative merits and risks of litigation before they proceed.” 651 F.2d at 974.

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948 F.2d 1004, 20 Fed. R. Serv. 3d 1185, 1991 U.S. App. LEXIS 26473, 1991 WL 224781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ronald-weaver-leo-mckaye-morris-martin-v-raymond-toombs-robert-brown-jr-ca6-1991.