Mitchell v. Farcass , 112 F.3d 1483 ( 1997 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 96-3026
________________________________
D.C. Docket No. 96-201-CIV-FTM-25 HLA
HENRY GREENE MITCHELL,
Plaintiff-Appellant,
versus
DAVE FARCASS, Superintendent,
Hendry Correctional Institution,
J. KING, Inspector Hendry
Correctional Institution,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________________________________________________
(May 6, 1997)
Before HATCHETT, Chief Judge, ANDERSON, Circuit Judge, and LAY*,
Senior Circuit Judge.
HATCHETT, Chief Judge:
__________________________________
*
Honorable Donald P. Lay, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
In this prisoner civil rights action, we consider challenges
to provisions of the Prison Litigation Reform Act of 1995 ("PLRA"
or "the Act"), Title VIII of the Omnibus Consolidated Rescissions
and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat.
1321 (Apr. 26, 1996). We hold that: (1) the provisions of the
PLRA codified at 28 U.S.C. § 1915(e)(2) apply to cases pending
prior to the Act's passage; (2) the filing fee requirements of
the PLRA do not violate the Constitution's guarantee of equal
protection; (3) to the extent the PLRA's filing fee requirements
conflict with Federal Rule of Appellate Procedure 24(a), the
Act's provisions control; (4) Federal Rule of Civil Procedure
12(b)(6) standards govern our review of dismissals under section
1915(e)(2)(B)(ii); and (5) the district court erred in dismissing
the appellant's First Amendment retaliation claim under section
1915(e)(2)(B)(ii).
I. BACKGROUND
On January 29, 1996, appellant Henry Mitchell, a Florida
prisoner proceeding pro se, initiated this lawsuit pursuant to 42
U.S.C. § 1983 against Dave Farcass, Superintendent of the Hendry
Correctional Institution ("HCI"), and J. King, an inspector at
HCI. The district court granted Mitchell's motion to proceed in
forma pauperis ("IFP"). Mitchell's complaint alleges the
following factual scenario.
In late December 1995, Mitchell, then an inmate at HCI,
wrote a letter to the Naples, Florida office of the National
2
Association for the Advancement of Colored People in which he
complained about the religious services at HCI. Mitchell also
sent copies of this letter to several officials of Florida's
correctional system, including Farcass. On January 15, 1996,
Mitchell submitted an inmate request to Farcass, asking him to
explain "why no black culture churches were being allowed to come
into [HCI] like the [S]panish culture churches and the white
churches." In this request, Mitchell claimed that HCI's
religious services did not comply with the provision of the
Florida Administrative Code that governs chaplaincy services at
state correctional institutions. According to Mitchell, around
eighty other inmates had submitted requests "asking the same
question or pertaining to that subject."
The following day, January 16, a prison employee told
Mitchell to report to "C-Building." Upon his arrival, Mitchell
met with Farcass, other HCI officials and another inmate.
Farcass had in his possession the inmate requests concerning the
chaplaincy services, including Mitchell's request. Mitchell
guesses that the officials requested his and the other inmate's
presence at this meeting because they considered the two inmates
"to be the leaders." Farcass told the inmates that the amount of
requests upset him and that "some one could be charged with
[in]citing a riot." Farcass, however, also told Mitchell and the
other inmate that the "meeting was to address the issue presented
in the requests" and that they "were not being charged with
anything, . . . were not going to get locked up, [and] were not
3
going to get transfer[r]ed." Farcass informed the inmates that
officials had to process paperwork in order for representatives
from black churches to begin visiting HCI.
The next day, January 17, an HCI employee told Mitchell to
report to the chaplain, and Mitchell wound up meeting with the
chaplain, assistant chaplain and assistant superintendent of HCI.
The assistant superintendent stated that the purpose of the
meeting was for the chaplain to explain the procedures churches
had to comply with before they could be permitted to provide
religious services at HCI. During the meeting, someone called
the assistant superintendent from the room. Upon returning, the
assistant superintendent reported that Farcass and King had
ordered Mitchell placed in administrative confinement while HCI
officials investigated whether he was responsible for inciting a
riot.
HCI officials placed Mitchell in administrative confinement
that same day. When officials brought Mitchell his property, he
found that his legal materials had been "smashed" and "crushed."
Later, in the evening, three correctional officers entered
Mitchell's cell, handcuffed him behind his back, and "smashed"
his legal work and property. Thereafter, Mitchell submitted
another inmate request to Farcass, this time asking that he be
placed in "protective management" because he feared further
retaliation from the HCI staff.
Mitchell asserts that Farcass and King breached his rights
under the First, Fifth, Eighth and Fourteenth Amendments; he
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seeks monetary relief. On June 18, 1996, the district court
addressed Mitchell's complaint. Recognizing Mitchell's IFP
status, the court assessed his pleading under the provisions of
section 804(a) of the PLRA that are now codified at 28 U.S.C. §
1915(e)(2). The court held, "[a]fter reading Plaintiff's
complaint in a liberal fashion," that Mitchell could "prove no
set of facts in support of his claim that would entitle him to
relief." Therefore, the court dismissed Mitchell's complaint sua
sponte pursuant to section 1915(e)(2)(B)(ii).1
Thereafter, Mitchell moved in the district court to proceed
IFP on appeal. On July 31, 1996, the court granted the motion
(thus allowing Mitchell to proceed without prepaying the entire
$105 appellate docketing and filing fee) and applied the filing
fee provisions of PLRA section 804(a), see 28 U.S.C.A. § 1915(a),
(b) (West Supp. 1997). As a result, the court ordered Mitchell
to tender payment of a fee equal to twenty percent of his average
monthly deposits to his prison account (this fee totalled $4) and
make monthly payments (submitted with updated account statements)
equal to twenty percent of the income credited to his account
each preceding month, until he paid the full docketing and filing
fee. Mitchell filed his notice of appeal on July 3, 1996.
In his pro se brief to this court, Mitchell argued, among
other things, that the district court erred in applying section
1915(e)(2) to his complaint because he commenced this lawsuit
1
Farcass and King were never served with Mitchell's
complaint.
5
prior to the PLRA's enactment on April 26, 1996, and that the
filing fee provisions of the PLRA violated constitutional norms.
This court appointed Mitchell a lawyer and placed this case on
the oral argument calendar. The United States intervened in this
action pursuant to 28 U.S.C. § 2403(a), and the State of Florida
participated as amicus curiae.
II. DISCUSSION
A.
The first issue we address is whether section 1915(e)(2)
applies to cases pending prior to the enactment of the PLRA. The
district court's determination of this issue was one of law; we
review it under the de novo standard. E.g., Goldsmith v. City of
Atmore, 996 F.2d 1155, 1159 (11th Cir. 1993).
Prior to the passage of the PLRA, section 1915 permitted a
court to dismiss a case authorized under that section if
"satisfied that the action is frivolous or malicious." 28 U.S.C.
§ 1915(d) (1994). As amended by the PLRA, however, section 1915
now provides that a court "shall dismiss the case at any time" if
it determines that the "action or appeal" is "(i) frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief." 28 U.S.C.A. § 1915(e)(2)(B) (West
Supp. 1997). As stated, the district court dismissed Mitchell's
complaint under section 1915(e)(2)(B)(ii).
"Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct.
1483, 128 L. Ed. 2d 229 (1994), provides the analytical framework
6
for determining whether newly enacted statutory provisions are
applicable to pending cases." Hunter v. United States, 101 F.3d
1565, 1569 (11th Cir. 1996) (en banc), petition for cert. filed,
65 U.S.L.W. 3648 (U.S. Mar. 10, 1997) (No. 96-1443). Under
Landgraf, our first inquiry is "to determine whether Congress has
expressly prescribed the statute's proper reach." 114 S. Ct. at
1505. Here, however, Congress has simply not spoken on the
issue. Accordingly, we should apply section 1915(e)(2) to
pending cases unless doing so would engender a "retroactive
effect." Landgraf, 114 S. Ct. at 1505; see also Hunter, 101 F.3d
at 1570. A new statute has a retroactive effect if, in applying
it to a pending case, it (1) impairs rights a party possessed
when he or she acted, (2) increases a party's liability for past
conduct, or (3) imposes new duties with respect to transactions
already completed. Landgraf, 114 S. Ct. at 1505; Hunter 101 F.3d
at 1570.
The second and third indices of statutory retroactive effect
outlined above clearly have no application to this case, and
Mitchell makes no argument to the contrary. The issue for us to
consider then, is whether the application of section 1915(e)(2)
to this case "would impair rights [Mitchell] possessed when he
acted." Landgraf, 114 S. Ct. at 1505. Mitchell states that
under pre-PLRA section 1915, the first test of the sufficiency of
his complaint would probably have come after the defendants had
filed a motion pursuant to Federal Rule of Civil Procedure
12(b)(6), after which time he could have amended his complaint in
7
light of the defendants' motion. Therefore, Mitchell contends,
the application of the PLRA amendments to his case deprived him
of the more liberal procedural treatment he had anticipated
receiving under the old provisions of section 1915(d).
We have little difficulty in concluding that Mitchell's
position fails. As this court stated in Hunter, "the term
``rights' as used in this context should not be construed broadly
so as to sweep within its ambit mere expectation interests under
procedural or remedy rules." 101 F.3d at 1572. Mitchell
concedes, as he must, that the PLRA amendments at issue are
"wholly procedural"; moreover, we cannot say that Mitchell has
anything more than an expectation interest in having pre-PLRA
section 1915 applied in his case. Indeed, we find the
appellants' position in Hunter (i.e., that applying the
certificate of appealability provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 to pending cases would
produce a retroactive effect), which this court sitting en banc
unanimously rejected, much more compelling than Mitchell's
argument. See Hunter, 101 F.3d at 1568-73. Consequently, we
agree with the Ninth Circuit that section 1915(e)(2) "raises no
retroactivity concerns under Landgraf." Marks v. Solcum, 98 F.3d
494, 496 (9th Cir. 1996).
B.
We next consider whether the filing fee provisions of the
PLRA (1) withstand equal protection review and (2) are superseded
8
by Federal Rule of Appellate Procedure 24(a). These issues
present legal questions that we address in plenary fashion.
E.g., Collins v. American Cast Iron Pipe Co., 105 F.3d 1368, 1370
(11th Cir. 1997).
Section 804(a) of the PLRA refashioned the procedures
prisoners must observe when seeking to proceed IFP in civil
actions. Title 28 U.S.C. § 1915(a)(2) now provides:
A prisoner seeking to bring a civil action or appeal a
judgment in a civil action or proceeding without
prepayment of fees or security therefor, in addition to
filing the affidavit filed under paragraph (1), shall
submit a certified copy of the trust fund account
statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding
the filing of the complaint or notice of appeal,
obtained from the appropriate official of each prison
at which the prisoner is or was confined.
28 U.S.C.A. § 1915(a)(2) (West Supp. 1997). Section 1915(b) now
reads:
(b)(1) Notwithstanding subsection (a), if a prisoner
brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the
full amount of a filing fee. The court shall assess
and, when funds exist, collect, as a partial payment of
any court fees required by law, an initial partial
filing fee of 20 percent of the greater of--
(A) the average monthly deposits to the prisoner's
account; or
(B) the average monthly balance in the prisoner's
account for the 6-month period immediately preceding
the filing of the complaint or notice of appeal.
(2) After payment of the initial partial filing fee,
the prisoner shall be required to make monthly payments
of 20 percent of the preceding month's income credited
to the prisoner's account. The agency having custody
of the prisoner shall forward payments from the
prisoner's account to the clerk of the court each time
the amount in the account exceeds $10 until the filing
fees are paid.
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(3) In no event shall the filing fee collected exceed
the amount of fees permitted by statute for the
commencement of a civil action or an appeal of a civil
action or criminal judgment.
(4) In no event shall a prisoner be prohibited from
bringing a civil action or appealing a civil or
criminal judgment for the reason that the prisoner has
no assets and no means by which to pay the initial
partial filing fee.
28 U.S.C.A. § 1915(b) (West Supp. 1997).
Mitchell contends that the PLRA's filing fee requirements
fail equal protection rational basis review and thus deny him due
process under the Fifth Amendment.2 "The first step in
determining whether legislation survives rational-basis scrutiny
is identifying a legitimate government purpose--a goal--which the
enacting government body could have been pursuing." Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995). "The second
step of rational-basis scrutiny asks whether a rational basis
exists for the enacting governmental body to believe that the
2
In his brief to this court, Mitchell's counsel made clear
that
Mr. Mitchell does not contend that the amended statute's
different treatment of indigent prisoners implicates the
line of Supreme Court cases beginning with Griffin v.
Illinois, 351 U.S. 12 (1956), which generally prohibits
making access to the appellate process dependent on the
appellant's ability to pay. . . . Mr. Mitchell also does
not contend that prisoners (or specifically indigent
prisoners) are a suspect class for purposes of his equal-
protection claim.
Appellant's Br. at 17-18. We note that both the Fourth and Sixth
Circuits have considered and rejected each of these contentions in
denying challenges to the PLRA. See Roller v. Gunn, 107 F.3d 227,
231-33 (4th Cir. 1997); Hampton v. Hobbs, 106 F.3d 1281, 1284-87
(6th Cir. 1997).
10
legislation would further the hypothesized purpose." Haves, 52
F.3d at 922.
After reviewing the statutory framework of the PLRA, this
court recently concluded that Congress promulgated the Act to
curtail abusive prisoner tort, civil rights and conditions
litigation. Anderson v. Singletary, No. 96-2697, --- F.3d ---,
--- (11th Cir. 1997); see also Hampton v. Hobbs, 106 F.3d 1281,
1286 (6th Cir. 1997) ("The legislation was aimed at the
skyrocketing numbers of claims filed by prisoners--many of which
are meritless--and the corresponding burden those filings have
placed on the federal courts."); Santana v. United States, 98
F.3d 752, 755 (3d Cir. 1996) ("Congress enacted the PLRA
primarily to curtail claims brought by prisoners under 42 U.S.C.
§ 1983 and the Federal Tort Claims Act, most of which concern
prison conditions and many of which are routinely dismissed as
legally frivolous."). Clearly, Congress had a rational basis to
believe that the fee requirements of the PLRA would further this
objective. As the Sixth Circuit recently found:
Congress sought to put in place economic incentives
that would prompt prisoners to "stop and think" before
filing a complaint. Congress's rationale for placing
the fee requirements on prisoners is captured in the
statements of Senator Kyl:
Section 2 will require prisoners to pay
a very small share of the large burden they
place on the Federal judicial system by
paying a small filing fee upon commencement
of lawsuits. In doing so, the provision will
deter frivolous inmate lawsuits. The modest
monetary outlay will force prisoners to think
twice about the case and not just file
reflexively. Prisoners will have to make the
same decision that law-abiding Americans must
11
make: Is the lawsuit worth the price?
Criminals should not be given a special
privilege that other Americans do not have. .
. .
The volume of prisoner litigation
represents a large burden on the judicial
system, which is already overburdened by
increases in nonprisoner litigation. Yet
prisoners have very little incentive not to
file nonmeritorious lawsuits. Unlike other
prospective litigants who seek poor person
status, prisoners have all the necessities of
life supplied, including the materials
required to bring their lawsuits. For a
prisoner who qualifies for poor person
status, there is no cost to bring a suit and,
therefore, no incentive to limit suits to
cases that have some chance of success.
The filing fee is small enough not to deter a
prisoner with a meritorious claim, yet large
enough to deter frivolous claims and multiple
filings.
141 Cong. Rec. S7526 (daily ed. May 25, 1995)
(statement of Sen. Kyl) (citations omitted).
Hampton, 106 F.3d at 1286-87. In addition to the foregoing, we
note that prisoners "often have free time on their hands that
other litigants do not possess." Roller v. Gunn, 107 F.3d 227,
234 (4th Cir. 1997). Moreover, prisoners have unique incentives
to file meritless or frivolous lawsuits, e.g., to attempt to
obtain a "short sabbatical in the nearest federal courthouse,"
Cruz v. Beto, 405 U.S. 319, 327 (1972) (Rehnquist, J.,
dissenting), or to harass prison officials or correctional
officers. See, e.g., Nasim v. Warden, Md. House of Correction,
64 F.3d 951, 953-54 n.1 (4th Cir. 1995) (en banc) (noting that
"all too often" prisoner litigation is initiated to harass prison
officials), cert. denied, 116 S. Ct. 1273 (1996). In short,
12
"[d]eterring frivolous prisoner filings in the federal courts
falls within the realm of Congress's legitimate interests, and
the specific provisions in question are rationally related to the
achievement of that interest." Hampton, 106 F.3d at 1287; accord
Roller, 107 F.3d at 230-31, 233-34.
Mitchell bases his equal protection challenge on Rinaldi v.
Yeager, 384 U.S. 305 (1966). In that case, the Court struck down
a New Jersey statute that required unsuccessful criminal
appellants who were incarcerated, but not unsuccessful criminal
appellants who were not imprisoned, to reimburse the state for
the costs of trial transcripts. 384 U.S. at 308. In so doing,
the Court found that the classification at issue did not further
any of the purported bases for the law -- reimbursement,
administrative convenience or deterrence of frivolous appeals.
384 U.S. at 309-11. Mitchell argues that the "distinction made
in 28 U.S.C. § 1915(b) between incarcerated indigent [litigants]
and all other indigent [litigants] is nearly identical to the
distinction made in Rinaldi."
We find Rinaldi inapposite. Unlike the situation here, that
case involved an "unreasoned distinction," i.e., the Court could
not find any justification for the classification the New Jersey
statute made. See Rinaldi, 384 U.S. at 309-10. In enacting the
PLRA, however, Congress had ample justification (e.g., prisoners
often have an abundance of free time, live in a nearly cost-free
environment, and have unique incentives to file meritless or
13
frivolous lawsuits) in differentiating between indigent prisoners
and other litigants. See Roller, 107 F.3d at 234 n.2.
Next, Mitchell contends that the fee provisions of the PLRA
stand in apparent conflict with Federal Rule of Appellate
Procedure 24(a), which states that once a district court grants a
party's motion to proceed IFP, "the party may proceed without
further application to the court of appeals and without
prepayment of fees or costs in either court or the giving of
security therefor." Fed. R. App. P. 24(a).3 The Fifth Circuit
recently considered this issue and cited authority for the
proposition that "a statute passed after the effective date of a
federal rule repeals the rule to the extent that it actually
conflicts." Jackson v. Stinnett, 102 F.3d 132, 135 (5th Cir.
1996). The court went on to hold that "[t]o the extent that the
Rules Enabling Act (as expressed in Rule 24(a)) actually
conflicts with the PLRA, we hold that the statute repeals the
Rule." Jackson, 102 F.3d at 136. We adopt the analysis and
holding of the Jackson court. See 102 F.3d at 134-36; see also
Floyd v. United States Postal Serv., 105 F.3d 274, 278 (6th Cir.
1997) ("[T]o the extent that Rule 24(a) conflicts with the PLRA,
we hold that the statute repeals Rule 24(a).").
C.
3
Although Mitchell discussed this issue in his brief, he did
not formally assert it. He did, however, pursue the issue at oral
argument, and therefore we address it. See Beckwith v. City of
Daytona Beach Shores, 58 F.3d 1554, 1561 n.11 (11th Cir. 1995).
14
Finally, we address the propriety of the district court's
dismissal of this action, i.e., whether the district court
correctly concluded that Mitchell failed to state a claim on
which relief may be granted. The language of section
1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil
Procedure 12(b)(6), and we will apply Rule 12(b)(6) standards in
reviewing dismissals under section 1915(e)(2)(B)(ii). Of course,
we review dismissals under Rule 12(b)(6) de novo, viewing the
allegations in the complaint as true. E.g., South Fla. Water
Management Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996).
"To state a first amendment claim for retaliation, a
prisoner need not allege violation of a separate and distinct
constitutional right. . . . The gist of a retaliation claim is
that a prisoner is penalized for exercising the right of free
speech." Thomas v. Evans, 880 F.2d 1235, 1242 (11th Cir. 1989).
In Bridges v. Russell, 757 F.2d 1155, 1157 (11th Cir. 1985), we
reversed the dismissal of a complaint where the prisoner-
appellant alleged that officials transferred him to another
facility because he (1) filed a grievance against his work
supervisor alleging racial discrimination in the assignment of
work duties; (2) actively encouraged other inmates to sign a
petition in protest of this treatment; and (3) prepared a similar
grievance on behalf of another inmate. In our view, it does not
appear beyond doubt that Mitchell can prove no set of facts that
would entitle him to relief on his First Amendment claim for
retaliation. See Bridges, 757 F.2d at 1157; see also Wildberger
15
v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989); Wright v.
Newsome, 795 F.2d 964, 968 (11th Cir. 1986). Accordingly, we
reverse the district court and remand for further proceedings on
this issue.
III. CONCLUSION
For the foregoing reasons, we hold that: (1) the PLRA's
filing fee provisions easily pass equal protection rational basis
review; (2) to the extent those provisions conflict with Federal
Rule of Appellate Procedure 24(a), the PLRA controls; (3) the
district court was correct in concluding that 28 U.S.C. §
1915(e)(2) applied in this case; (4) Federal Rule of Civil
Procedure 12(b)(6) standards govern our review of dismissals
under section 1915(e)(2)(B)(ii); and (5) the district court erred
in dismissing Mitchell's First Amendment retaliation claim
pursuant to section 1915(e)(2)(B)(ii). As a result, we remand to
the district court for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
16