Torres v. O'Quinn

Filed: August 31, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7770(L)
(7:06-cv-00576-GEC)
DON JUAN TORRES,
Plaintiff - Appellant,
v.
R. O’QUINN; D. TATE; D. MUNCY,
Defendants - Appellees.
O R D E R
The Court amends its opinion filed July 13, 2010, as
follows:
On page 4, line 6 -- “twenty percent of” is added
following “an initial payment of.”
On page 11, lines 3 and 4 -- the word “filling” is
corrected to read “filing.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DON JUAN TORRES, 
Plaintiff-Appellant,
v.  No. 06-7770
R. O’QUINN; D. TATE; D. MUNCY,
Defendants-Appellees.

DON JUAN TORRES, a/k/a Donald 
Hautz,
Plaintiff-Appellant,
v.
 No. 07-7340
GENE JOHNSON; LARRY HUFFMAN;
TRACY RAY; JOHN JABE; R.
ROWLETT; M. MULLINS,
Defendants-Appellees.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Glen E. Conrad, District Judge.
(7:06-cv-00576-GEC; 7:07-cv-00398-GEC)
Argued: December 1, 2009
Decided: July 13, 2010
Before NIEMEYER, GREGORY, and DAVIS,
Circuit Judges.
2 TORRES v. O’QUINN
Judge Davis authored a Supplemental Opinion Denying
Appellant’s Post Judgment Motion for Partial Refund of Fil-
ing Fees in which Judge Gregory joined. Judge Niemeyer
wrote a dissenting opinion.
COUNSEL
ARGUED: Tonya T. Robinson, WILMERHALE, Washing-
ton, D.C., for Appellant. Mark R. Davis, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellees. ON BRIEF: June Shih, WILMER-
HALE, Washington, D.C., for Appellant. William C. Mims,
Attorney General, Richmond, Virginia, for Appellees.
OPINION
DAVIS, Circuit Judge:
Appellant Don Juan Torres, a/k/a Donald Hautz ("Torres"),
while an inmate at a Virginia prison, filed two civil actions
against prison officials in federal court; each case was
promptly dismissed for failure to state a claim. When he
appealed to this court, we ordered, pursuant to the Prison Liti-
gation Reform Act of 1995, Title VIII of Pub. L. No. 104-134,
110 Stat. 1321 (1996), amending 28 U.S.C. § 1915 et seq.
("PLRA"), that Torres pay the filing fees for the appeals even
as an indigent prisoner. Consequently, Virginia corrections
officials commenced withholding forty percent of Torres’s
"preceding month’s income credited to [his] account" from
his prison trust account, rather than the twenty percent men-
tioned in 28 U.S.C. § 1915(b)(2), to satisfy the filing fee
requirement for his two appeals. Torres objected to the forty
percent exaction and has filed a motion for a refund of the
fees collected from his account in excess of twenty percent.
TORRES v. O’QUINN 3
For the reasons that follow, we conclude, in agreement with
Torres, that 28 U.S.C. § 1915(b)(2) permits only twenty per-
cent of an inmate’s preceding month’s income to be withheld
from a trust account, notwithstanding that, as here, the inmate
had two in forma pauperis appeals pending before this court.
On the merits of Torres’s request for a refund, however, we
conclude that although we have the authority to order a
refund, under the circumstances in these cases, we decline to
do so.
I.
Torres was an inmate at the Red Onion State Prison
("ROSP") in Virginia. He filed two civil actions in the United
States District Court for the Western District of Virginia
against prison officials during his imprisonment. In the first
case, Torres complained that prison officials failed to repair
a malfunctioning night-light in his prison cell, resulting in a
disturbing "strobe" effect. J.A. 4-7. The district court
promptly dismissed the action sua sponte pursuant to 28
U.S.C. § 1915A(b)(1) for failure to state a claim upon which
relief may be granted. Torres v. O’Quinn, No. 7:06-cv-00576-
GEC, 2006 WL 2850642 (W.D. Va. Sept. 29, 2006). We
affirmed the judgment of dismissal by per curiam opinion.
Torres v. O’Quinn, No. 06-7770, 2007 WL 143081 (4th Cir.
Jan. 22, 2007) (unpublished). One year later, Torres filed a
complaint in district court asserting that a constitutional viola-
tion inhered in the prison’s prohibition of his subscription to
commercially available pictures of nude women. J.A. 47-72.
The district court also dismissed that action (again, sua
sponte) pursuant to 28 U.S.C. § 1915A(b)(1) for failure to
state a claim upon which relief may be granted. Torres v.
Johnson, No. 7:07-cv-00398-GEC, 2007 WL 2570217(W.D.Va. Aug. 31, 2007). Again, upon Torres’s appeal, we
affirmed. Torres v. Johnson, No. 07-7340, 2008 WL 2115474(4th Cir. May 20, 2008) (unpublished).
In connection with each of his two appeals, as an indigent
prisoner, Torres proceeded under the relevant sections of the
4 TORRES v. O’QUINN
PLRA, filing an Application for Leave to Proceed Without
Prepayment of Fees, a Consent to Collection of Fees from Trust
Account, and a copy of his trust account statement. J.A. 124-33,
189-91. On November 6, 2006, and February 20, 2008,
respectively, we granted each of Torres’s applications,
ordering that an initial payment of twenty percent of the greater
of his average monthly deposits or monthly balance from the
six months before filing of each appeal be collected as an initial
payment. J.A. 135-37, 192-94. In each such order, in accord-
ance with the PLRA, we directed prison officials to withhold
and forward to the clerk of the district court, twenty percent of
Torres’s monthly deposits when his income exceeded $10 until
the full filing fee was discharged. Id. In March 2007, ROSP
officials began withdrawing money, at the twenty percent rate,
from Torres’s account to pay the filing fee for his first appeal.
Beginning on June 26, 2008, however, after they received our
February 20, 2008, order for the second appeal, ROSP officials
began withdrawing forty percent, i.e., twenty percent per
appeal. When, periodically, the district court received the funds
so withheld, it applied the full amount to the filing fee of
Torres’s first appeal. J.A. 174.
On September 23, 2008, Torres sent a letter to the district
court challenging the propriety of the excessive withdrawals. In
this letter, he insisted that there must have been an error in the
collection of fees from his prison account. J.A. 175-77. On
October 28, 2008, the district court (through its pro se law
clerk) responded to Torres and advised him that all the money
that had been withheld from his account was being applied to
the fee related to the first appeal, and that after that fee is paid
in full, the money withheld would then be applied to his second
appeal. J.A. 174. The district court also advised Torres that any
objection to the amount of withholding should be addressed to
this court. Id. We construed Torres’s objection as a motion for
return of fees and appointed counsel to present argument on his
behalf. The Attorney General of Virginia has entered an
appearance to defend the prison’s practice of withholding
twenty percent of an inmate’s account (or income, as
TORRES v. O’QUINN 5
the case may be) for each and every appeal for which an
inmate owed fees, without regard for the twenty percent exac-
tion mentioned in the PLRA. We have jurisdiction to review
the propriety of the implementation of our prior orders.1
II.
The PLRA, enacted in 1996, changed the landscape of pris-
oner litigation. Congress required that indigent prisoners fil-
ing lawsuits be held responsible for the full amount of filing
fees. Section 1915(b) sets forth the requirements for the pay-
ment of fees by prisoners filing suit in federal court. If an
indigent inmate is unable to pay the full fee at once, he may
be ordered to make an initial "partial payment" of the filing
fee. After the initial partial payment, such a prisoner goes on
a "monthly payment plan" until the filing fee is fully dis-
charged. The portions of § 1915(b) relevant in this case state:
(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—
1
Because the continuing collection of appellate filing fees is ancillary to
this court’s original jurisdiction over Torres’s appeals, we have jurisdic-
tion to decide this issue. See Peacock v. Thomas, 516 U.S. 349, 354 (1996)
(finding that federal courts may exercise ancillary jurisdiction to enforce
its judgments).
We note that, in response to an order we issued after argument, counsel
for the parties have confirmed that, as disclosed by a search of public
records, Torres has been released from the Virginia prison system. See
http://www.vadoc.virginia.gov/offenders/locator/index.cfm. Nevertheless,
as counsel have urged, the case presents no issue of mootness. See infra
pp. 23-24.
6 TORRES v. O’QUINN
(A) the average monthly deposits to the
prisoner’s account; or
(B) the average monthly balance of 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 cred-
ited 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.
28 U.S.C. § 1915(b)(1)&(2). The question presented here is
whether § 1915(b)(2) allows only a maximum of twenty per-
cent to be taken from a prisoner’s monthly income regardless
of the number of cases or appeals filed, or does the statute
require (or permit) twenty percent be taken each month for
each case or appeal that the prisoner files; that is, does the
financial exaction from the inmate pursuant to § 1915(b)(2)
imply no statutory cap, or can it climb to nearly one hundred
percent of the monthly deposits to the trust account?2
A.
Although the question is an open one in this circuit, there
is a split of authority among our sister circuits: the Fifth, Sev-
enth, and Eighth Circuits have interpreted § 1915(b)(2) to
2
Presumably, inasmuch as Congress ordered that the twenty percent
periodic withdrawal from an inmate’s trust account would only be proper
when "the amount in the account exceeds $10," 28 U.S.C. § 1915(b)(2),
the withdrawals could never cause an inmate’s trust account to fall below
$8.01.
TORRES v. O’QUINN 7
require prisoners to pay twenty percent of their funds towards
filing fees per case and per appeal; the Second Circuit has
interpreted the statute to cap the payment of fees at twenty
percent of the prisoner’s income, regardless of the number of
cases or appeals for which the prisoner is indebted.3 We join
the Second Circuit and hold that § 1915(b)(2) requires that no
more than twenty percent of an inmate’s monthly income be
deducted to pay filing fees, irrespective of the total number of
cases or appeals the inmate has pending at any one time. We
so hold because we find that the most plausible reading of the
statute, in light of Congress’ intent as reflected in legislative
history and the structure of the statute, and in the face of a
looming constitutional question posed by the alternative inter-
pretation, together dictate that, in no instance should the
monthly withholdings for filing fees exceed twenty percent of
the inmate’s income from the preceding month.
1.
The Fifth Circuit has concluded that §§ 1915(b)(1) and
(b)(2) are unambiguous and that their meaning can be deter-
mined by a plain reading of the statutory language. See
Atchinson v. Collins, 288 F.3d 177, 180 (5th Cir. 2002) (per
curiam). The court reasoned that the word "court" appearing
in both § 1915(b)(1) and (b)(2) should be read to refer to the
"instant action," separate from previously filed lawsuits. Id. at
180-81. The Fifth Circuit also noted that if it interpreted
§ 1915(b)(2) to cap withdrawals at twenty percent per inmate,
then if an inmate files actions in two different courts, "the
clerk" in the statute would refer to two different people — a
result that would make it impossible to determine which clerk
3
The D.C. Circuit has suggested in dicta that it would follow the Second
Circuit’s approach. See Tucker v. Branker, 142 F.3d 1294, 1298 (D.C. Cir.
1998)("[T]he payment requirement of the PLRA never exacts more than
20% of an indigent prisoner’s assets or income.") (emphasis added). But
see D’Alfonso v. Holder, No. 09-1971 (RBW), 2010 WL 604659 at *2
(D.D.C. Feb. 22, 2010) (declining to cap fees at twenty percent).
8 TORRES v. O’QUINN
would collect the fee. Id. at 181. The court rejected the notion
that "the court" mentioned in the statute refers to a single
court, regardless of the number of suits the prisoner filed,
hypothesizing that an inmate could file a civil suit in the East-
ern District of Texas and another in the District of Columbia.
Id. The Fifth Circuit found that ordering the inmate to pay
twenty percent per case would decrease the "confusion" sur-
rounding which courts would receive the fees when a prisoner
files more than one suit. Id. Additionally, the Fifth Circuit
concluded that there was no constitutional quandary with a
"per case" interpretation because, according to that court, "the
Supreme Court has held that indigent persons have no consti-
tutional right to proceed in forma pauperis." Id. (citing M.L.B.
v. S.L.J., 519 U.S. 102, 119 (1996)).
The Fifth Circuit’s concern for consistency is misplaced:
although the statute mentions that "the court shall assess . . .
and collect," the clerk of the court is responsible for collecting
the filing fees only in the sense that the clerk "receives" the
fees. Plainly, it is the agency having custody of the prisoner
that "collects" the fees, in the sense that the agency "gathers
together" the money to make payment to the court clerk. See
Random House Unabridged Dictionary 402 (2d ed. 1993)
(defining "collect"). Under a per inmate collection scheme, a
prison would collect the funds to pay the fees accrued by a
specific inmate, and then distribute those funds to the appro-
priate court until that court’s fees are paid in full. After satis-
fying the first court, the prison would continue to collect
funds and use them to pay the next court in sequence. There
is no "confusion" in such a scheme requiring "elimination."
Moreover, the Fifth Circuit’s casual dismissal of the incho-
ate constitutional impediment to its interpretation of the
PLRA filing fee provision is deeply troubling. It simply is not
true that "[t]he Supreme Court has held that indigent persons
have no constitutional right to proceed in forma pauperis."
Atchinson, 288 F.3d at 181. The very case cited by the Fifth
Circuit for that proposition reaches exactly the opposite hold-
TORRES v. O’QUINN 9
ing. Specifically, the Supreme Court concluded that a mother
in Mississippi could not be denied appellate review in a termi-
nation of parental rights action solely because she could not
pay the fees to compile the record necessary for appeal, stat-
ing, "we hold that Mississippi may not withhold from M. L.
B. a record of sufficient completeness to permit proper [appel-
late] consideration of [her] claims." M.L.B., 519 U.S. at 128
(citing Mayer v. Chicago, 404 U.S. 189, 198 (1971)) (internal
quotations omitted).4 Thus, as the Supreme Court has made
clear, there are indeed certain fundamental rights whose vin-
dication in a judicial forum are sufficiently profound that the
government may not deny access to that forum on the basis
of poverty. Id.
2.
Unlike the Fifth Circuit, the Seventh Circuit has correctly
noted that the difficulty here is not in wrestling with the "plain
language" of the statute; rather, the problem is that "[t]he stat-
4
The full statement of the Court’s holding was as follows:
May a State, consistent with the Due Process and Equal Pro-
tection Clauses of the Fourteenth Amendment, condition appeals
from trial court decrees terminating parental rights on the
affected parent’s ability to pay record preparation fees? We hold
that, just as a State may not block an indigent petty offender’s
access to an appeal afforded others, see Mayer v. Chicago, 404
U.S. 189, 195-96, 92 S.Ct. 410, 415-416, 30 L.Ed.2d 372 (1971),
so Mississippi may not deny M. L. B., because of her poverty,
appellate review of the sufficiency of the evidence on which the
trial court found her unfit to remain a parent.
M.L.B., 519 U.S. at 107. See Lyon v. Krol, 127 F.3d 763, 765 (8th Cir.
1997) (describing M.L.B. as "summarizing cases where court fees must be
waived if they prevent litigants from vindicating basic fundamental
rights."). What the Fifth Circuit cites is the Court’s recognition "that a
constitutional requirement to waive court fees in civil cases is the excep-
tion, not the general rule," M.L.B., 519 U.S. at 114, a far cry from a
description of a flat holding that "indigent persons have no constitutional
right to proceed in forma pauperis." Atchinson, 288 F.3d at 191 (citing
M.L.B., 519 U.S. at 119).
10 TORRES v. O’QUINN
ute does not tell us whether the 20 percent-of-income pay-
ment is per case or per prisoner." Newlin v. Helman, 123 F.3d
429, 436 (7th Cir. 1997), overruled in part on other grounds
by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000), and Walker
v. O’Brien, 216 F.3d 626 (7th Cir. 2000). The court adopted
the "per case" interpretation based on its finding that the
PLRA was "designed to require the prisoner to bear some
marginal cost for each legal activity," and "[u]nless payment
begins soon after the event that creates the liability, this will
not happen." Newlin, 123 F.3d at 436 In other words, the
court was concerned that "[a] prisoner could file multiple suits
for the price of one, postponing payment of the fees for later-
filed suits until after the end of imprisonment," when collec-
tion of the fee would perhaps be difficult or impossible. Id.Finally, dismissing sub silentio the argument that a prisoner
might face a constitutionally-suspect limitation on his access
to courts if trust fund exactions were not capped at twenty
percent and not collected sequentially, the Seventh Circuit
reasoned, skeptically, that "[f]ive suits or appeals mean that
the prisoner’s entire monthly income must be turned over to
the court until the fees have been paid–though by then a pris-
oner is likely to have three strikes and to owe all future filing
fees in full." Id.5
We agree with the Seventh Circuit that the PLRA is not
ambiguous; rather, it is simply silent. ("The statute does not
tell us whether the 20 percent-of-income payment is per case
or per prisoner."). Still, the Seventh Circuit’s reasoning leaves
much to the imagination, and does little to advance the neces-
sary statutory analysis. The court employs a number of highly
debatable assumptions: (1) that prisoners only file suits that
are "frivolous," "malicious," or "fail to state a claim upon
which relief can be granted," see 28 U.S.C. § 1915A(b)(1);6
5
The Eighth Circuit followed the Seventh Circuit’s lead without elabo-
ration. Lefkowitz v. Citi-Equity Group, Inc., 146 F.3d 609, 612 (8th Cir.
1998).
6
But see Roger Roots, Of Prisoners and Plaintiff’s Lawyers: A Tale of
Two Litigation Reform Efforts, 38 Willamette L. Rev. 210, 221-22 (2002)
(discussing examples of successful civil rights suits brought by pro se
inmate-litigants).
TORRES v. O’QUINN 11
(2) that most prisoners who file numerous suits are serving relat-
ively short sentences, and thus will be released before all unpaid
filing fees can be collected from their trust accounts; and (3) that
Congress is powerless to collect unpaid filing fees from prisoners
after they are released.7 We decline to engage in such factfinding
under the circumstances here.8
3.
The Second Circuit has held that the collection of filing
fees under § 1915(b)(2) must be pursuant to the "per inmate"
interpretation. Whitfield v. Scully, 241 F.3d 264, 276 (2d Cir.
2001). The court acknowledged that a "per inmate" interpreta-
7Indeed, although we have held that a released prisoner who complies with
the PLRA while incarcerated will not be bound to pay outstanding fees after
he is released, other circuits have ruled to the contrary. Compare DeBlasio
v. Gilmore, 315 F. 3d 396, 397 (4th Cir. 2003) ("We hold that the PLRA fee
requirements are not applicable to a released prisoner (assuming the prisoner
made any required payments while in prison) and that his obligation to pay
filing fees is determined by evaluating whether he qualifies under the general
in forma pauperis provision of 28 U.S.C. § 1915(a)(1)."), with Gay v. Texas
Dep’t of Corrs State Jail Div., 117 F.3d 240, 241 (5th Cir. 1997) ("We hold
that a person who files a notice of appeal while in prison is subject to the
filing-fee requirements of the PLRA despite subsequent release from pris-
on.").
8District courts in the Sixth and Ninth Circuits have also followed the
"per case" interpretation of § 1915. See Hendon v. Ramsey, 478 F. Supp. 2d
1214, 1219 (S.D. Cal. 2007) (adopting the Fifth Circuit’s reasoning in
Atchinson that § 1915 requires a "per case" withdrawal of fees); Samonte
v. Frank, 517 F. Supp. 2d 1238, 1243 (D. Haw. 2007) (finding that the "per
case" interpretation of § 1915 was a more practical interpretation); Lyon v.
Kentucky State Penitentiary, No. 5:02CV-P53-R, 2005 WL 2044955 at *1
(W.D. Ky. Aug. 23, 2005) (recognizing that the Sixth Circuit has not dir-
ectly addressed this issue, but finding that the Sixth Circuit implicitly adop-
ted the "per case" interpretation in McGore v. Wriggles-worth, 114 F.3d 601(6th Cir. 1997)); Suggs v. Caballero, 2007 WL 541909 at *1 (E.D. Mich.
Feb. 16, 2007) (disagreeing that the Sixth Circuit implicitly adopted the
"per case" interpretation, but adopting the "per case" interpretation because
it is a "better interpretation"). Neither the Sixth Circuit nor the Ninth Circuit
have directly addressed the issue.
12 TORRES v. O’QUINN
tion might create a lesser deterrent for prisoners filing law-
suits because they are able to delay the payment of their filing
fees. Nevertheless, the court concluded that the "per case"
interpretation could raise the constitutional problem of equal
access to the courts by possibly recouping one hundred per-
cent of an inmate’s income for filing fees, and accordingly
adopted the "per inmate" interpretation. Id. at 276-77. It
stated, "[o]ur resolution of this question . . . must be guided
by the principle that we should ‘avoid an interpretation of a
federal statute that engenders constitutional issues if a reason-
able alternative interpretation poses no constitutional ques-
tion.’" Id. at 277 (quoting Gomez v. United States, 490 U.S.
858, 864 (1989)).9
B.
1.
On the issue of whether fees are to be collected simulta-
neously or sequentially, we are called upon to determine what
Congress would have done had it thought about the problem,
not interpret an ambiguous statute. Cf. Newlin, 123 F.3d at
436. We think the most valuable interpretive clue arising from
a focus on the "plain text" of the filing fees provisions of the
PLRA is the one urged by counsel for Torres, namely, that
§ 1915(b)(1)’s specific reference to the "payment of any court
fees" (emphasis added) suggests that the twenty percent exac-
tion applies to all court fees, in total. Indeed, we have fol-
lowed the canon of statutory construction that unless
9
District courts in the First and Third Circuits have adopted Whitfield’s
"per inmate" interpretation for the collection of filing fees from prisoners,
though neither circuit has addressed the issue directly. See LaFauci v.
Cunningham, 139 F. Supp. 2d 144, 147 (D. Mass. 2001) (finding that a
"per case" interpretation could possibly present a problem by denying
inmates access to the courts); Fortune v. Patterson, No. 04-377, 2009 WL
3166274 at *4 (W.D. Pa. Sept. 28, 2009) (holding that § 1915 mandates
that filing fees are deducted from a prisoner’s monthly income at a rate not
greater than 20 percent).
TORRES v. O’QUINN 13
otherwise defined in the statute, "words will be interpreted as
taking their ordinary, contemporary, common meaning."
United States v. Lehman, 225 F.3d 426, 428 (4th Cir. 2000)
(quoting Perrin v. United States, 444 U.S. 37, 42 (1979)).
Under our own circuit’s statutory construction of the word
"any," the phrase "payment of any court fees" should be con-
strued to mean the "payment of any [and all] court fees." See
United States v. Maxwell, 285 F.3d 336, 341 (4th Cir. 2002)
(citing Webster’s Third New International Dictionary 97 (2d
ed. 1981)) ("when the word ‘any’ is ‘used as a function word
to indicate the maximum or whole of a number or quantity,’
for example, ‘give me [any] letters you find’ and ‘he needs
[any] help he can get,’ the word ‘any’ means ‘all.’"); see also
Webster’s New Universal Unabridged Dictionary, 96 (1st ed.
2003) (defining "any" as "every; all"). Consequently,
§ 1915(b) requires that no more than twenty percent be taken
from an inmate’s monthly income to pay for "all" court fees.
So construed, therefore, § 1915(b) as a whole suggests that
even if the fees encompass more than one suit and/or appeal,
§§ 1915(b)(1) and (b)(2) forbid deducting more than twenty
percent of the inmate’s income for monthly payments of all
the court fees from all suits in the aggregate.10
2.
But here, as in many statutory interpretation exercises, reli-
ance on text alone can lead to a dead end. Cf. Holloway v.
United States, 526 U.S. 1, 7 (1999) ("As we have repeatedly
stated, ‘"the meaning of statutory language, plain or not,
depends on context."’") (citing Brown v. Gardner, 513 U.S.
115, 118 (1994) (quoting King v. St. Vincent’s Hospital, 502
U.S. 215, 221 (1991))). Unlike the Fifth, Seventh, and Eighth
10
We need not go so far, however, for here the question is whether the
monthly payments required by § 1915(b)(2) may be collected sequentially
or must be collected simultaneously. No issue is presented as to whether
an initial "partial payment" of filing fees must be withheld for every case
and every appeal.
14 TORRES v. O’QUINN
Circuits, we are not persuaded by the concern that prisoners
would no longer be held liable for the payment of their filing
fees if "only" required to pay a twenty percent maximum of
their monthly income regardless of how many suits are filed
or appeals noted, and would start filing suits against prison
officials willy nilly. First, the "per inmate" reading of
§ 1915(b)(2) does not relieve inmates of their responsibility
under the PLRA of paying their filing fees; it is merely a
question of timing and not a waiver of fees at all. An inmate
filing suit will still have to fully pay his filing fees. Adopting
a "per inmate" interpretation of § 1915(b)(2) would not open
up a "floodgate" of litigation from prisoners since prisoners
would still be accountable for the filing fees under the PLRA.
Second, the PLRA’s "three strikes" provision, 28 U.S.C.
§ 1915(g), should quell any fear that a twenty percent cap on
withdrawals would not provide adequate deterrence to contin-
ued filing of frivolous suits. Section 1915(g) prohibits prison-
ers from filing suits in forma pauperis if they have had three
prior suits dismissed as frivolous, malicious, or for failure to
state a claim, unless they are in imminent harm of physical
danger. 28 U.S.C. § 1915(g).
Furthermore, under a "per case" interpretation, inmates
may find themselves in situations where they no longer have
any income after the fees are paid. If, for example, the inmate
had $10.02 in his account, the prison may start deducting fees
since he has a balance over $10. See 28 U.S.C. § 1915(b)(2).
Under a "per case" regime, the inmate would have $8.02 left
in his account if he had filed one suit, $6.02 left in his account
if he had filed two suits, and $0.02 left in his account if he had
filed five suits. But see supra note 2. This result is problem-
atic because it is not only contrary to the clear legislative
intent of the PLRA, but it also raises an access to courts issue
of constitutional dimensions.
3.
We conclude that the admittedly meager legislative history
of the PLRA points to the Second Circuit’s approach, that a
TORRES v. O’QUINN 15
"per inmate" interpretation is the correct interpretation and
both satisfies Congress’ intent when passing the PLRA and
protects the constitutional rights of inmates.
Congress put a limit on garnishment from an inmate’s
(already meager) income, understanding that a "chilling
effect" on litigation was not the same as a complete bar on fil-
ing suits, which may occur if close to one hundred percent of
an inmate’s income is taken to pay his filing fees. When
enacting the PLRA, Congress was explicit that the intention
of the statute was to provide prisoners with "an economic
downside to going to court." 141 Cong. Rec. S7525 (daily ed.
May 25, 1995) (statement of Sen. Dole). Congress sought to
provide initial deterrents against suits, but not to punish pris-
oners for electing to litigate. See 141 Cong. Rec. S7526 (daily
ed. May 25, 1995) (statement of Sen. Kyl) ("The modest mon-
etary outlay [in § 1915] will force prisoners to think twice
about the case and not just file reflexively."). The garnishment
of more than twenty percent of an indigent inmate’s already
meager income crosses the line from deterrence to punish-
ment and was not the intent behind § 1915. Specifically, Con-
gress felt that "[t]he filing fee is small enough not to deter a
prisoner with a meritorious claim, yet large enough to deter
. . . multiple filings." 141 Cong. Rec. S7526 (daily ed. May
25, 1995) (statement of Sen. Kyl).
Furthermore, Congress indicated that the timing of recoup-
ment was not the intended disincentive, but that prisoners
would be deterred simply by the requirement that they pay the
costs at all. See 141 Cong. Rec. S14413 (daily ed. Sept. 27,
1995) (statement of Sen. Dole) (emphasis added) ("[W]hen
prisoners know that they will have to pay these costs — per-
haps not at the time of filing, but eventually — they will be
less inclined to file a lawsuit in the first place") (emphasis
added).
Congress never intended § 1915(b)(2) to be construed puni-
tively, and in a manner amounting to a denial of a prisoner’s
16 TORRES v. O’QUINN
access to courts. See 142 Cong. Rec. 5,118 (1996) (statement
of Sen. Reid) ("If somebody has a good case, a prisoner, let
him file it."); 141 Cong. Rec. 27,042 (1995) (statement of
Sen. Hatch) ("I do not want to prevent inmates from raising
legitimate claims. This legislation will not prevent those
claims from being raised."). Under the Seventh Circuit’s
approach, an inmate could file three lawsuits in district court,
all of which present colorable and plausible, but ultimately
losing, claims. If the district court grants summary judgment
against the inmate in each case, the inmate would be fore-
closed from pursuing what could be a meritorious appeal in
the third case because the three district court filing fees (60%)
coupled with the filing fees for the appeals in the first two
cases (40%) would exhaust his trust fund account and he
could not pay the appellate filing fee, and therefore could not
appeal, the adverse summary judgment in the third case. Con-
gress could not possibly have intended this outcome; cer-
tainly, federal courts should not provide this answer to a
question that Congress never thought about. Cf. Benjamin v.
Jacobson, 935 F. Supp. 332, 340 (S.D.N.Y. 1996) ("[I]t is
worth noting that some believe that this legislation which has
a far-reaching effect on prison conditions and prisoners’ rights
deserved to have been the subject of significant debate. It was
not."); 142 Cong. Rec. 5, 193 (1996) (statement of Sen. Ken-
nedy) ("The PLRA was the subject of a single hearing in the
Judiciary Committee, hardly the type of thorough review that
a measure of this scope deserves."). Our "per inmate" inter-
pretation today holds true to that intent.
4.
Finally, adopting a "per case" regime for § 1915(b)(2)
could present a constitutional problem of access to courts for
prisoners. Even if it is true that prisoners often file unmeritor-
ious suits and § 1915(b) is intended to provide a "chilling
effect," prisoners under a "per case" regime may be com-
pletely barred from filing meritorious claims.11 Because pris-
11
Although it is true that the number of suits brought by prisoners has
increased, there is no indication that the increase has significantly out-
TORRES v. O’QUINN 17
oners who have had "three strikes" under § 1915(g) must pay
the entire filing fee up front at the time the suit is filed, the
simultaneous withdrawal of filing fees from previous suits
could hinder a prisoner from asking the courts to address seri-
ous abuses that may not necessarily result in serious bodily
injury or death.12 See 28 U.S.C. § 1915(g) (creating an excep-
tion to the "three strikes" rule for a prisoner who "is under
imminent danger of serious physical injury"). Adoption of a
"per case" rule would pose genuine risks of constitutional vio-
lations and abuses that do not rise to the level of imminent
serious physical injury, would never come to the court’s atten-
tion because prisoners would hesitate to file complaints; it
would place additional burdens on the prisoner’s finances. In
essence, a "per case" interpretation of § 1915(b) would force
prisoners to choose between saving their meager income and
searching for a remedy for abuses in prison. Cf. Beville v.
Ednie, 74 F.3d 210, 212 (10th Cir. 1996) ("A prison inmate’s
right of access to the courts is the most fundamental right he
paced the increase in the number of people incarcerated in this country
nor have the reasons for the increase in claims been established . . . .
A list of reasons for any increase in the number of complaints over a
simple increase in the number of prisoners would likely include the
high incidence of prison overcrowding, a lack of carefully trained cor-
rectional officers, and inadequate and frequently unfair internal griev-
ance procedures.
Lyon v. Krol, 127 F.3d 763, 766 & n. 6 (8th Cir. 1997) (Heaney, J., dis-
senting).
12
There have been many instances where courts have found abuses in
prisons that were constitutional violations that may not have resulted in
imminent danger of serious physical injury or death. See Hope v. Pelzer,
536 U.S. 730, 737 (2002) (holding that handcuffing a prisoner to a hitch-
ing post for seven hours without regular water and bathroom breaks was
unconstitutional); Helling v. McKinney, 509 U.S. 25, 33 (1993) (finding
that exposing prisoners to tobacco smoke that posed an unreasonable risk
of serious damage to future health could be considered a constitutional
violation); Smith v. Ozmint, 578 F.3d 246, 253-54 (4th Cir. 2009) (finding
that a prison policy that forces inmates to cut or shave their hair is a viola-
tion of genuinely held religious beliefs).
18 TORRES v. O’QUINN
or she holds." (quoting DeMallory v. Cullen, 855 F.2d 442,
446 (7th Cir. 1988))).
III.
Our good colleague dissents on three grounds. First, the
dissent contends that we have misinterpreted the applicable
provisions of the PLRA. Second, the dissent contends that the
case is moot and that we lack "subject matter jurisdiction."
Finally, the dissent asserts this court lacks the power to order
a refund of filing fees. We address these contentions in turn.
A.
The dissent’s boldly-stated and confident application of its
version of "plain meaning" statutory analysis is as unpersua-
sive as it is formalistic, consisting of little more than repro-
ducing the statute. The approach bespeaks the kind of
mechanical statutory interpretation that can lead a court to
stray from the full achievement of congressional goals. See,
e.g., Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (rev’g 70
F.3d 325, 330 (4th Cir. 1995) (holding that "plain meaning"
of statutory term "employee" absolutely excludes from its
compass a "former employee")); Graham County Soil &
Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409(2005) (rev’g 367 F.3d 245, 251 (4th Cir. 2004) (concluding
that one statutory subsection "plainly applie[d]" to another
subsection)); United States v. Hayes, 129 S.Ct. 1079 (2009)
(rev’g 482 F.3d 749, 752 (4th Cir. 2007) (determining what
statutory provision "plainly require[d]")). By deeming
§ 1915(b)(2) "simply" to "latch on" to § 1915(b)(1), Dissent-
ing Op. at 34, the dissent begs the question presented: whether
a scheme of pyramiding exactions under § 1915(b)(2), such
that virtually the entirety of a prisoner’s income may be gar-
nished to pay court filing fees, comports with Congress’ intent
when it undertook a limited and measured approach in decid-
ing to inflict an economic "sting" on inmates who seek redress
in federal district court. In deciding the issue at hand as if the
TORRES v. O’QUINN 19
question presented has not been presented, the dissent reaches
a conclusion unsupported by genuine analysis. Cf. Holloway,
526 U.S. at 7 ("As we have repeatedly stated, ‘the meaning
of statutory language, plain or not, depends on context.’")
(citations and internal quotation omitted).
The dissent categorizes the payments mandated by § b(1)
and § b(2) as "two types of installment payments" that must
be collected and paid simultaneously in every case; but in
fact, they are materially distinct in purpose and effect.13
Indeed, the record here discloses a telling fallacy in the dis-
sent’s unwarranted assumptions. Although corrections offi-
cials sua sponte withheld 40% of Torres’s income for the
payment of fees in the two appeals before us, the district court
applied all the funds it received only to the first case. Thus,
the actual implementation of the statute in this instance
resulted in a deviation from the clear congressional mandate
the dissent asserts is unavoidable in a "plain meaning" reading
of the statute: that no more than 20% of an inmate’s income
be withheld per case. In fact, Torres (now released from cus-
tody) has paid 40% of his monthly income in "a [single]
case."
It is also worth noting that, in keeping with the sensible
practice of many district courts around the country, the district
court in these cases promptly determined that the complaints
failed to state a claim upon which relief could be granted and
dismissed each case pursuant to 28 U.S.C. § 1915A without
bothering to process Torres’s request for in forma pauperis
13
In fashioning its extra-statutory term "installment payments," the dis-
sent commits the very infraction of which we are said to be guilty: that by
construing the monthly payment provision as we do, we are inappropri-
ately inserting a word ("cap") into the statute. See Dissenting Op. at 27-28
(citing Lamie v. United States Trustee, 540 U.S. 526, 538 (2004)). But this
is not accurate. The circumstances arising from statutory silence we find
present here are "familiar," and simply require that we construe a statute
"where Congress has enacted a law that does not answer ‘the precise ques-
tion at issue.’" Lopez v. Davis, 531 U.S. 230, 242 (2001).
20 TORRES v. O’QUINN
status.14 Accordingly, Torres quickly earned "two strikes"
under the "three-strike" "door-closing" trigger of 28 U.S.C.
§ 1915(g), which is Congress’ preferred method for barring
access to federal district court to mischievous inmates intent
on engaging in "recreational litigation." In any event, contrary
to the dissent’s preferred approach, there is absolutely nothing
inherent in Congress’ decision to require, in § b(1), an exac-
tion of 20% of the inmate’s "average monthly balance" in his
trust account (or "average monthly deposits") as a "partial
payment" of a filing fee at the commencement of each case
or appeal, which compels the conclusion that the subsequent
"monthly payments," required by § b(2) to be calculated as
20% of his previous month’s income, must be withheld with-
out regard to the number of cases and appeals pending at the
same time.15
The dissent scolds us because we forthrightly acknowledge
(in agreement with Judge Easterbrook, see Newlin, 123 F.3d
at 436, but in disagreement with the per curiam decision of
the Fifth Circuit, see Atchison, 288 F.3d at 180) that the
14
See Julia Colaruso, Comment, Out of Jail But Still not Free to Liti-
gate? Using Congressional Intent to Interpret 28 U.S.C. § 1915(B)’s
Application to Released Prisoners, 58 Am. U. L. Rev. 1533, 1544 n. 61
(2009) (citations omitted):
[S]ome courts review the petitioner’s IFP application while
simultaneously deciding the merits of his claim . . . . Under this
approach, the court automatically denies IFP status upon a find-
ing that the claim is frivolous or malicious and thereby dismisses
the case . . . . Courts utilize the one-step procedure in part
because it "helps minimize the drain on public funds and judicial
resources that in forma pauperis litigants might otherwise cause."
15
Even if we grant the existence of a few of the dissent’s hypothetical
inmates who, like the Fifth Circuit’s hypothetical Texas inmate, are "free
to file a § 1983 action against the President in the District of Columbia,"
see Atchison, 288 F.3d at 181, and who thus file cases in different federal
district courts, such speculation provides scant reason to apply the statute
as the dissent would. As we observe, supra p. 8, corrections officials are
suitably equipped to handle such outliers by remitting withheld inmate
funds to the appropriate courts sequentially.
TORRES v. O’QUINN 21
PLRA is in a material respect "silent," requiring us to fathom
(unexpressed) congressional intent regarding the sequencing
(or not) of the monthly payments assessed pursuant to § b(2).
Statutory silence may, see Texas Mun. Power Agency v. EPA,
89 F.3d 858, 869 (D.C. Cir. 1996) ("In view of its silence on
the point at issue, we must hold the statute ambiguous."), or
may not, see Univ. of Chi. Hosps. v. United States, 545 F.3d
564, 567 (7th Cir. 2008) ("[T]he statute’s silence on the spe-
cific subject of medical residents does not necessarily mean
it is ambiguous."), give rise to latent statutory ambiguity. At
all events, the Supreme Court does not share the dissent’s
timidity in this regard. See Stewart v. Dutra Constr. Co., 543
U.S. 481, 487 (2005) ("[T]he statute is silent on who is a ‘sea-
man.’"); Christensen v. Harris County, 529 U.S. 576, 585
(2000)("Because the statute is silent on this issue and because
the county’s policy is entirely compatible with § 207(o)(5),
petitioners cannot, as § 216(b) requires, prove that the county
has violated § 207."); Demore v. Kim, 538 U.S. 510, 578
(2003) (Breyer, J. dissenting) ("I would interpret the (silent)
statute as imposing these bail standards."); Holloway, 526
U.S. at 22 (Thomas, J., dissenting) ("The central difficulty in
this case is that the text is silent as to the meaning of
‘intent.’").
Indeed, members of the Supreme Court have noted that at
least one provision of the PLRA itself is "silent" in a material
respect. See Miller v. French, 530 U.S. 327, 358-59 (2000)
("There is no logical inconsistency in saying both (1) a
motion (to terminate) "shall operate as a stay," and (2) the
court retains the power to modify or delay the operation of the
stay in appropriate circumstances. The statutory language says
nothing about this last-mentioned power. It is silent. It does
not direct the district court to leave the stay in place come
what may.") (Breyer, J., dissenting) (emphasis added). Simi-
larly here, "[t]here is no logical inconsistency in saying both"
(1) § b(1) requires a partial payment for every case or appeal
that is filed, and (2) the potentially harsh effects of pyramid-
ing the monthly exactions mandated by § b(2) (not to mention
22 TORRES v. O’QUINN
the potentially unconstitutional effects) may be — and should
be — ameliorated by ordering that they be paid sequentially
rather than simultaneously where more than one case or
appeal is pending.16
We respect, but take a different view from, the dissent’s
credulous observation that governmental appropriation of vir-
tually the entirety of an inmate’s monthly income for the pay-
ment of court filing fees does not rise to the level of
"punishment." Congressional and judicial disapprobation of
frivolous claims instituted by too-idle prisoners is entirely
appropriate; we honor Congress’ goal to reduce the incidence
of frivolous claims by our holding.17 On the other hand, only
a little more than a fortnight ago, the Supreme Court
reminded us that there are limits to official hostility to pris-
oner litigation. Wilkins v. Gaddy, 130 S.Ct. 1175 (2010) (per
curiam) (abrogating Fourth Circuit rule that allegation of only
de minimus injury precludes Eighth Amendment excessive
force claim). As mentioned above, we believe that Congress
intended to inflict an economic "sting" on inmates as a disin-
centive to the filing of meritless claims, not to impose a
regime in which an inmate has access to federal district court
only at such an oppressive cost as the dissent is willing, if not
anxious, to impose.
16
The dissent’s reliance on Roller v. Gunn, 107 F.3d 227, 231-33 (4th
Cir. 1997), is misplaced. Unlike the appellant in that case, Torres does not
contend that the imposition of filing fees on inmates violates the constitu-
tion. Rather, he contends, as the Second Circuit has found, that the pyra-
miding of the monthly payments required by § b(2) poses an avoidable
risk that a constitutionally-cognizable impediment to an inmate’s access to
courts could result. Roller did not purport to address this issue.
17
Notably, in enacting the PLRA to address the increase in litigation
arising in the prison setting, Congress imposed not only (1) filing fees and
(2) the "three-strikes" rule already discussed, but it also (3) "invigorated
the exhaustion prescription" required of prisoners bringing claims under
42 U.S.C. § 1983, by imposing a mandatory exhaustion requirement that
"differs markedly" from its predecessor. Porter v. Nussle, 534 U.S. 516,
524 (2002). Clearly, Congress knows how to address the problem of frivo-
lous prisoner litigation.
TORRES v. O’QUINN 23
B.
The dissent also contends that because Torres has been
released from prison, see supra n. 1, the PLRA no longer
applies to him and therefore, the case is moot. It is said that
we are merely issuing an advisory opinion. In their joint post-
argument submission to the court, counsel for the parties dis-
agree with the dissent, as do we.
The merits of these appeals have long been decided and
there is no unadjudicated "claim" against the named defen-
dants here. The question now before us is whether Torres
should get a partial refund of the filing fees paid on his behalf
from his prison trust account, not simply whether Torres
should only have 20% deducted from his prison account at all
times. We ultimately conclude (consistent with Judicial Con-
ference Policy) that he is not entitled to a refund of fees under
the circumstances. See infra pages 24-25. Contrary to the
assertions in the dissent, however, federal courts plainly and
unmistakably have the power to refund a litigant’s payment of
an excessive or mistaken filing fee to a litigant, including, in
particular, indigent prisoners. See West v. Blair, No. 00-
20615, 2001 WL 563818 at *5 (5th Cir. May 15, 2001)
(unpublished) (per curiam) ("The district court was within its
authority to order that the excess fees . . . be returned to the
proper prison accounts. . . . [O]ur court has found that deny-
ing indigent litigants a refund of filing fees may violate their
right of access to the courts.") (citing Foster v. City of Lake
Jackson, 28 F.3d 425, 429 (5th Cir. 1994)).
Relatedly, the dissent suggests that because we have
decided to deny a refund of the excessive filing fees paid on
behalf of Torres, it follows that any discussion of the harm
itself is merely gratuitous. Surely, this is not true. Our consti-
tutional tradition traces at least to Marbury v. Madison, 5 U.S.
137 (1803), the notion that a court should determine, first,
whether there was a legal harm before it undertakes consider-
ation of a remedy. We conclude that the decision whether to
24 TORRES v. O’QUINN
refund fees requires of this court an exercise of discretion, but
we could no sooner exercise our discretion not to order a
refund of fees without first deciding whether there was an
"overpayment" in the first instance.
C.
The dissent also claims that, based on sovereign immunity,
we have no discretion to fashion a remedy and thus we lack
power even to consider whether a legal injury occurred. The
dissent is clearly mistaken. First, as we have discussed, fed-
eral courts have the authority to refund an overpayment of fil-
ing fees, and in fact, have ordered the refund of excessive
filing fees. See West, 2001 WL 563818 at *5. Second, sover-
eign immunity bars claims against the United States for
money damages, but has never been interpreted to bar a
request to a governmental agency or department simply to
recover property or the fair-value of that property erroneously
delivered to the government. The difference between the anal-
ysis we would conduct in the sovereign immunity context and
the discretion afforded us by the policies of the Judicial Con-
ference of the United States to refund excessive filing fees
necessitates an analysis of whether the fees were wrongly col-
lected. Manifestly, the refund request in this case illustrates
the difference between an analysis of a claim that would not
be redressable in the sovereign immunity context, and a
request that we clearly may remedy at our discretion. In short,
this case does not call into question our Article III powers to
adjudicate the merits of Torres’s motion for a partial refund
of filing fees.
IV.
We hold that 28 U.S.C. § 1915(b)(2) caps the amount of
funds that may be withdrawn from an inmate’s trust account
at a maximum of twenty percent regardless of the number of
cases or appeals the inmate has filed. Accordingly, the War-
den of Red Onion State Prison shall collect and remit to the
TORRES v. O’QUINN 25
clerk of the United States District Court for the Western Dis-
trict of Virginia, and the clerk shall accept, no more than
twenty percent of an inmate’s preceding monthly income or
trust account balance, as the case may be, as payment toward
his filing fees obligation.
Torres has now been released from custody and during his
imprisonment, he fully complied (indeed, under our holding,
more than fully complied) with his PLRA payment obliga-
tions for these appeals. Accordingly, under our precedent, he
is absolved from further payments. See DeBlasio, 315 F. 3d
at 397. Nevertheless, under the circumstances, although fed-
eral courts have the authority to order a refund of excessive
filing fees, we decline to grant a partial refund of fees to Tor-
res. The amounts withheld from his trust account and remitted
on his behalf during his incarceration were actually owed and
properly (if excessively) collected. Cf. West, 2001 WL
563818 at *5 (approving district court order granting refund
where two prisoners, as joint plaintiffs, overpaid filing fees
for a single case filed in district court). Were he still incarcer-
ated, Torres would have been entitled, at the least, to a tempo-
rary abatement in the collection of fees from his prison
account. We conclude, however, that there is no unfairness,
under the circumstances, in declining to order the district
court clerk to effect a refund.
****
For the reasons set forth, the motion for partial refund of
fees is
DENIED.
NIEMEYER, Circuit Judge, dissenting:
Torres, having proceeded in forma pauperis in two separate
actions that he filed, now owes fees for those actions. Section
1915(b) provides that a prisoner filing an action or appeal in
26 TORRES v. O’QUINN
forma pauperis must pay "the full amount of a filing fee." 28
U.S.C. § 1915(b)(1). Recognizing, however, the financial sta-
tus of prisoners proceeding in forma pauperis, the section
does not require the prisoner to pay the full amount of this fee
up front. Rather, it authorizes him to pay an initial partial pay-
ment of the fee consisting of 20% of the greater of the average
monthly deposits made to his prison account or the average
monthly balance in the account, id., and the remainder in
monthly installments of 20% of the preceding month’s
income, id. § 1915(b)(2).
In a remarkably proactive approach to statutory interpreta-
tion, the majority holds that, even though § 1915(b)(1)
requires the prisoner to make an initial partial payment on the
filing fee for each action or appeal filed, § 1915(b)(2) some-
how applies only to the first action or appeal filed, until the
fee for that action is paid in full, and then sequentially to each
other action or appeal filed, until all are paid. Stated other-
wise, the majority reads § 1915(b)(2) to "cap[ ] the amount of
funds that may be withdrawn from an inmate’s trust account
at a maximum of twenty percent regardless of the number of
cases or appeals the inmate has filed." Ante at 24 (emphasis
in original). It does this even as it recognizes that the statute
contains no language to impose the "cap"; indeed, according
to the majority, the statute "is simply silent." Ante at 10
(emphasis in original).
Reacting to statutory "silence," the majority answers a
"call" "to determine what Congress would have done had it
thought about the problem." Ante at 12 (emphasis added). To
do this, it focuses on selective statements of Senators in the
legislative history about what the bill would accomplish, con-
cluding that "Congress sought to provide initial deterrents
against [prisoners’] suits, but not to punish prisoners for elect-
ing to litigate." Ante at 15 (emphasis in original). From that
intuitive conclusion, which, in fact, is unsupported by the leg-
islative history, it reasons that "[t]he garnishment of more
than twenty percent of an indigent inmate’s already meager
TORRES v. O’QUINN 27
income crosses the line from deterrence to punishment and
was not the intent behind § 1915." Ante at 15 (citing Senator
Kyl’s inapposite statement, "The filing fee is small enough
not to deter a prisoner with a meritorious claim, yet large
enough to deter . . . multiple filings," to support this conclu-
sion). And the majority reaches this conclusion even though
it fails to explain how requiring a litigant to pay preestabli-
shed filing fees is punishment.
The majority crowns its analysis with the conclusion that
its cap on filing fees is necessary because requiring the pris-
oner to make the required monthly payment for each action
or appeal filed "could present a constitutional problem of
access to courts for prisoners." Ante at 16. Indeed, it refers to
the reading of the statute that requires a prisoner to pay the
full filing fee in each case that he chooses to file as a "pyra-
miding" scheme. See ante at 18, 21. Without the citation of
authority, the majority concludes that the requirement that
payment be made for each action or appeal filed would mean
that "prisoners under a [fee] ‘per case’ regime may be com-
pletely barred from filing meritorious claims," ante at 16
(emphasis added), and that the bar created from the prisoner’s
financial burden would violate the Constitution, despite our
court’s earlier conclusion to the contrary. See Roller v. Gunn,
107 F.3d 227, 231-33 (4th Cir. 1997) (noting that a prisoner
simply has to make a financial choice, as does everyone else,
of how to spend his money).
While there may be a textual analysis of § 1915(b)(2) that
could give some support to the majority’s holding, it is not
obvious, and the majority does not undertake it. To the con-
trary, the majority simply speculates about "what Congress
would have done had it thought about the problem." Ante at
12. This form of statutory interpretation is fundamentally
unsupportable. See Lamie v. United States Trustee, 540 U.S.
526, 538 (2004) (condemning a court’s insertion of an absent
word into statute as an inappropriate "‘enlargement of it by
the court’" (quoting Iselin v. United States, 270 U.S. 245, 251
28 TORRES v. O’QUINN
(1926) (noting that supplying inadvertent omissions to a stat-
ute "transcends the judicial function"))). And, of course,
implementing an interpretation without textual support has
never before been recognized in our precedents. See, e.g.,
United States v. Passaro, 577 F.3d 207, 213 (4th Cir. 2009)
("When interpreting any statute, we must first and foremost
strive to implement congressional intent by examining the
plain language of the statute"); Chesapeake Ranch Water Co.
v. Bd. of Comm’rs of Calvert County, 401 F.3d 274, 279 (4th
Cir. 2005) ("As in all cases of statutory interpretation, our
inquiry begins with the text of the statute"); U.S. Dep’t of
Labor v. N.C. Growers Ass’n, 377 F.3d 345, 350 (4th Cir.
2004) ("When interpreting statutes we start with the plain lan-
guage"); United States v. Bell, 5 F.3d 64, 68 (4th Cir. 1993)
("The proper interpretation of [a statute] must begin with the
plain language of the statute, and absent ambiguity or a
clearly expressed legislative intent to the contrary, the statute
must be given its plain meaning"); see also Boumediene v.
Bush, 128 S. Ct. 2229, 2271 (2008) ("The canon of constitu-
tional avoidance does not supplant traditional modes of statu-
tory interpretation. We cannot ignore the text and purpose of
a statute in order to save it").
Aside from the merits of the dispute, I also submit that this
case became moot when Torres was released from prison, and
therefore it should be dismissed. Because of this and because
the interpretation of § 1915(b)(2) most faithful to its text man-
dates that a prisoner make the 20% monthly payment toward
the filing fees for each action or appeal he has filed, I
respectfully dissent.
I
The issue in this case arises from a letter sent by Torres to
the Clerk of the district court and forwarded to the Clerk of
our court, complaining that prison officials were withholding
40% of his monthly prison income to pay the fees for two
TORRES v. O’QUINN 29
cases that he had filed against prison officials complaining
about prison conditions.
In the first case, Torres sued prison officials, claiming that
their failure to repair a flickering night light in his cell vio-
lated his Eighth Amendment rights. The district court dis-
missed the suit under 28 U.S.C. § 1915A(b)(1), and we
affirmed. We also directed Torres to pay the fees for the
action in accordance with 28 U.S.C. § 1915(b). Following our
order, Torres paid the initial partial fee, and prison officials
began collecting 20% of Torres’ monthly income to pay the
remainder. In the second case, Torres again sued prison offi-
cials, this time alleging that they had violated his First and
Fourteenth Amendment rights by denying his request to order
pictures of nude women from a commercial, online publisher.
The district court dismissed the action, and we affirmed. We
again directed prison officials to collect fees in accordance
with § 1915(b). At the time we issued the second order, prison
officials were still withdrawing 20% of Torres’ income to pay
the filing fees for the first lawsuit. To accommodate our order,
prison officials then began drawing an additional 20% for the
second lawsuit, for a total of 40%.*
When Torres noticed that 40% of his prison account
income was being withheld to pay filing fees, he sent a letter
to the Clerk of the district court asking why 40% was being
withheld and requesting that he be "stopped being charged
40%" to pay his filing fees. The Clerk of the district court for-
warded the letter to the Clerk of this court, where the Clerk
docketed the letter as a motion for refund of fees, which is
now before us. The question presented, accordingly, is
*Upon receiving funds from Torres’ prison account, the district court
erroneously applied the full 40% withheld to the filing-fee debt from Tor-
res’ first suit. Consistent with § 1915(b)(2)’s direction, however, that a
prisoner make monthly payments on the filing-fee debts for each action or
appeal filed, the district court should have applied 20% of Torres’ monthly
income to the filing-fee debts on each of his two cases.
30 TORRES v. O’QUINN
whether the terms of the Prison Litigation Reform Act
("PLRA")—particularly § 1915(b)(2)—apply to each action
or appeal that a prisoner files or whether, instead, they some-
how impose a "cap" on total monthly filing-fee payments,
regardless of how many cases a prisoner has filed.
The PLRA was enacted in 1996 in response to Congress’
conclusion that prisoners were flooding the courts with mostly
frivolous litigation. See Roller, 107 F.3d at 230-31. "Finding
that the proliferation of prison litigation was due significantly
to the lack of economic disincentives to filing meritless
cases," the Act imposed the requirement that inmates pay the
full amount of filing fees. See id. Because of the prisoners’
lack of financial resources, however, the PLRA authorized
prisoners to pay the fees in installments, as specified in the
Act.
Under the PLRA, prisoners are required to make two types
of installment payments on their filing-fee debts. Subsection
(b)(1) of § 1915 sets up the first of these payments, which is
an "initial partial filing fee," required to be paid by the pris-
oner at the time he files the suit, equal to 20% of the greater
of his average monthly income or his average monthly prison
account balance. See 28 U.S.C. § 1915(b)(1). Once the pris-
oner has made this initial partial payment, subsection (b)(2)
then requires him to continue paying monthly installments,
each equal to 20% of his monthly income, until the debt is
paid. See id. § 1915(b)(2). This case requires us to determine
whether the installment payments established by subsection
(b)(2) must be made for each action or appeal that a prisoner
files or whether it must be made on only the first action filed
until the fee debt in that action is fully paid and then on the
second action.
The majority concludes that the PLRA imposes a sequential
payment plan by which a prisoner pays installments for his
first case through deductions of 20% of his monthly income
and starts to pay installments for a second case only when the
TORRES v. O’QUINN 31
fees for the first case are paid in full. It thus holds that the
20% withholding requirement provided in the Act is a "cap,"
regardless of the number of cases filed by the prisoner. This
holding gives prisoners, in effect, a free ride after they file
their first piece of litigation.
Fairly read, however, § 1915 does not even hint at the
"cap" and sequential payment plan suggested by the majority.
Read as a whole, the language and operation of § 1915 per-
suasively point to the conclusion that its terms apply to each
action or appeal filed by a prisoner and that they do not make
a special accommodation when the prisoner files multiple
actions or appeals. If § 1915 as a whole applies to each action
or appeal the prisoner files, then a fortiori § 1915(b)(2), pro-
viding for the payment of fees in installments, also applies to
each action or appeal filed. Looking at the entirety of § 1915,
there can be little doubt that there is no Presidents’ Day sale
for multiple actions, providing that if the prisoner begins pay-
ing for the first, he can file the second at a discount.
Subsection (a) of § 1915 begins by providing, "Subject to
subsection (b), any court of the United States may authorize
the commencement, prosecution or defense of any suit, action
or proceeding . . . without prepayment of fees." Id. § 1915(a)
(emphasis added). Subsection (b) then connects to subsection
(a) by providing, "Notwithstanding subsection (a), if a pris-
oner brings a civil action or files an appeal in forma pauperis,
the prisoner shall be required to pay the full amount of a fil-
ing fee." Id. § 1915(b)(1) (emphasis added). Both subsection
(a) and subsection (b) address the fees incurred in any civil
action filed by a prisoner. Subsection (b)(1) continues by pro-
viding that in the civil action filed by the prisoner, the pris-
oner must make a down payment of the filing fees for which
he will become obligated to pay, consisting of 20% of the
greater of his average monthly income or average account
balance for the preceding six months. See id. § 1915(b)(1). As
Torres correctly notes, a prisoner must pay this initial partial
filing fee each time he files an action or an appeal. See id.
32 TORRES v. O’QUINN
§ 1915(b)(1); Reply Br. at 6 ("Except in rare circumstances
that do not apply here, the law absolutely requires an inmate
to make this initial payment every time and at the time he/she
commences a legal action" (emphasis in original)).
Addressing that same action or appeal for which the pris-
oner must make a down payment, subsection (b)(2) requires
that the prisoner pay the remainder of the fees in installments
consisting of 20% of his monthly income until the full fee is
paid. See 28 U.S.C. § 1915(b)(2). The fact that subsection
(b)(2) refers to the same action or appeal addressed in subsec-
tion (b)(1) is made clear by the introductory clause of subsec-
tion (b)(2): "After payment of the initial partial filing fee
[required by (b)(1)] . . . ." Thus, the initial down payment pro-
vided for in subsection (b)(1) is the triggering condition for
the installments provided for in subsection (b)(2), and both
provisions apply to the same civil action or appeal filed.
Indeed, subsection (b)(2) can be referring to nothing other
than the action referred to in subsection (b)(1), which requires
the down payment—"the initial partial filing fee." Thus, if, as
Torres concedes, a prisoner must make the down payment on
the filing fees in every action or appeal filed, it follows that
the prisoner must also make the installment payments on the
remainder of those filing fees in every action or appeal filed,
in accordance with subsection (b)(2). Subsection (b)(2) makes
no exception for multiple filings.
It makes no textual sense to conclude that subsection (b)(1)
imposes a down payment ("initial partial filing fee") in each
action that a prisoner files and then somehow conclude from
the text that subsection (b)(2), providing for the payment of
the remainder of the filing fees, applies only to the first action
that the prisoner files, and not to any subsequent action that
the prisoner files, until the fees in the first action are paid in
full. Nothing—not even logic—supports such an interpreta-
tion. Yet, that is precisely what the majority holds is appropri-
ate.
TORRES v. O’QUINN 33
As an additional indicator that subsection (b)(2) applies to
each action filed, subsection (b)(2) directs prison officials to
forward the installments "to the clerk of the court," obviously
referring to the Clerk of the court where the action or the
appeal was filed. See Atchinson v. Collins, 288 F.3d 177, 181
(5th Cir. 2002). Thus, if the prisoner files his first action in
the Eastern District of Virginia, he makes the down payment
and forwards it to the Clerk of the district court in the Eastern
District of Virginia, as well as the installment payments for
the remainder. If the prisoner files his second action in the
District of Maryland, he must again make the down payment,
but this time to the Clerk of the district court in the District
of Maryland, and likewise he must forward the remainder of
the filing fee in installments to that Clerk.
Finally, it is clear from the rest of § 1915 that its terms are
meant to govern each action or appeal filed under the authori-
zation of subsection (a)(1). Specifically, subsection (e) pro-
vides, "Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that" the allegation of poverty
is untrue or the case is defective in some way. 28 U.S.C.
§ 1915(e)(2). Likewise, subsection (f) authorizes the court to
render judgment for costs "at the conclusion of the suit or
action as in other proceedings." Id. § 1915(f)(1). Reading
each subsection of § 1915, it is clear that the focus of that stat-
ute is on each individual action or appeal filed under its
authorization and that it makes no attempt to govern any
aspect of actions other than the one before the court. See also
id. § 1915(c) (authorizing the court to direct the United States
to pay the expenses of preparing transcripts and appellate
records if required by the case); id. § 1915(d) (providing for
the same remedies and process in a case filed under § 1915 as
are available in other cases); id. § 1915(g) (prohibiting a pris-
oner from bringing a new action or appeal under § 1915 if he
has previously had three suits dismissed for being frivolous,
malicious, or for failing to state a claim). To interpret subsec-
tion (b)(2) as imposing a global cap on filing fees incurred in
34 TORRES v. O’QUINN
cases other than the one presently before the court would
divorce that subsection from the rest of § 1915—a result
unsupportable by the text of the statute.
Despite these indications from the statute’s text, Torres
argues—and the majority accepts—that the word "any" in
subsection (b)(1) somehow imposes a limit on the fees that
can be collected under subsection (b)(2). But this analysis
simply does not work. Even if "any" means "any and all," as
the majority concludes, subsection (b)(1) then provides sim-
ply that a prisoner must pay an initial partial payment of "any
and all" court fees required in the civil action. Subsection
(b)(2) then simply latches on to subsection (b)(1) by provid-
ing for the way in which the prisoner pays the remainder of
the fees referred to in subsection (b)(1). There is nothing in
either of those subsections to indicate that if the prisoner is
already in the process of paying a filing fee for a different,
earlier-filed action or appeal, he is spared the requirement of
paying the installments for the current action.
Both Torres and the majority also argue, without identify-
ing textual support for their interpretation, that statements in
the legislative history suggest that Senators were sensitive to
charging excessive costs and that those statements somehow
support imposing a limit or cap on the statute’s requirement
that the prisoner pay filing fees in each action or appeal he
files. A more complete reading of the references cited from
the legislative history, however, suggests that the Senators did
not speak of an accumulative cap on fees, but rather intended
that prisoners make a choice each time they file a lawsuit
about whether the "lawsuit [is] worth the price." See 141
Cong. Rec. S7526 (daily ed. May 25, 1995) (statement of Sen.
Kyl).
Finally, both Torres and the majority argue that if the court
were to interpret the statute as requiring the prisoner to pay
the monthly installments on the filing fees in each case or
appeal filed, serious constitutional problems could arise when
TORRES v. O’QUINN 35
the prisoner files multiple actions because the required pay-
ments would impose a financial burden that denies the pris-
oner access to the courts. This argument, however, is
advanced without legal support. Indeed, we have held to the
contrary, as explained in Roller:
Requiring prisoners to make economic decisions
about filing lawsuits does not deny access to the
courts; it merely places the indigent prisoner in a
position similar to that faced by those whose basic
costs of living are not paid by the state. Those living
outside of prisons cannot file a lawsuit every time
they suffer a real or imagined slight. Instead, they
must weigh the importance of redress before resort-
ing to the legal system. If a prisoner determines that
his funds are better spent on other items rather than
filing a civil rights suit, ‘he has demonstrated an
implied evaluation of that suit’ that the courts should
be entitled to honor.
107 F.3d at 233; see also Atchison, 288 F.3d at 181.
Moreover, the statute expressly guards against any access
problem in § 1915(b)(4), which provides that "[i]n 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 ini-
tial partial filing fee." See also 28 U.S.C. § 1915(b)(1) ("The
court shall assess and, when funds exist, collect . . . ." (empha-
sis added)). Plainly, even in the situation where the filing of
five lawsuits has caused a prisoner’s entire monthly income
to be devoted to filing fees, § 1915(b)(4) preserves his ability
to challenge the conditions of his confinement in court,
assuming, of course, he has not run afoul of the other provi-
sions of § 1915 meant to prevent frivolous and repetitive law-
suits. See, e.g., id. § 1915(g). Thus, even in the majority’s
unlikely hypothetical, no constitutional question will arise.
36 TORRES v. O’QUINN
In conclusion, a straightforward reading of § 1915 indicates
that a prisoner must pay the full fees in each action or appeal
that he files and that his payment of those fees is discharged
by a down payment, as provided for in subsection (b)(1), and
by installments for the remainder, as provided in subsection
(b)(2). Nothing can be gleaned from the statute to suggest that
these requirements are administered differently in the second
action or, indeed, the third action filed by the prisoner. In
embracing this natural reading, I join the majority of the
circuits—indeed, all of the circuits except for the Second
Circuit—that have addressed this issue. See Atchison v. Col-
lins, 288 F.3d 177 (5th Cir. 2002); Lefkowitz v. Citi-Equity
Group, 146 F.3d 609, 612 (8th Cir. 1998); Newlin v. Helman,
123 F.3d 429, 436 (7th Cir. 1997); cf. McGore v. Wriggles-
worth, 114 F.3d 601 (6th Cir. 1997).
Accordingly, I would affirm the collection of the filing fees
from Torres for each action filed, as has been done, and deny
his motion for a refund.
II
Quite apart from the merits, as a matter of subject matter
jurisdiction, which was not briefed by the parties but which
arises by reason of the fact that Torres has now been released
from custody, I respectfully suggest that this case is moot and
that, accordingly, we must dismiss it.
"It goes without saying that those who seek to invoke the
jurisdiction of the federal courts must satisfy the threshold
requirement imposed by Art. III of the Constitution by alleg-
ing an actual case or controversy." City of Los Angeles v.
Lyons, 461 U.S. 95, 101 (1983). "[A] federal court has neither
the power to render advisory opinions nor ‘to decide ques-
tions that cannot affect the rights of litigants in the case before
them.’" Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quot-
ing North Carolina v. Rice, 404 U.S. 244, 246 (1971)); see
also Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). Rather,
TORRES v. O’QUINN 37
"[t]o be cognizable in federal court, a suit . . . ‘must be a real
and substantial controversy admitting of specific relief
through a decree of a conclusive character, as distinguished
from an opinion advising what the law would be upon a hypo-
thetical state of facts.’" Rice, 404 U.S. at 246 (quoting Aetna
Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)).
In order to ensure that federal courts do not issue unconsti-
tutional advisory opinions, the Supreme Court has established
several justiciability doctrines that must be satisfied to confer
jurisdiction on a federal court, including the doctrines of
standing and mootness. Along with injury and causation, the
"irreduceable constitutional minimum of standing" requires a
party seeking relief in federal court to establish that the injury
complained of is "redress[able] by a favorable decision." See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Thus, if relief from the injury is not "‘likely’ to follow from
a favorable decision," the party seeking relief has no standing
and has not presented a justiciable case or controversy. See
Allen v. Wright, 468 U.S. 737, 751 (1984). Likewise, because
"[m]oot questions require no answer," Mo., Kan. & Tex. Ry.
v. Ferris, 179 U.S. 602, 606 (1900), federal courts "[are] not
empowered to decide moot questions or abstract proposi-
tions," California v. San Pablo & Tulare R.R., 149 U.S. 308,
314 (1893).
The relief that Torres sought in this case was to "stop"
withholding 40% of his prison account income to pay his
filing-fee indebtedness. But because of Torres’ release from
prison, prison officials will no longer be collecting payments
on Torres’ filing-fee debts. See DeBlasio v. Gilmore, 315 F.3d
396, 397 (4th Cir. 2003). Accordingly, there is no continuing
conduct to enjoin. Moreover, it is clear from Supreme Court
precedent that the possibility Torres may one day be required
to resume making payments under § 1915(b)(2) on his filing
fees should he reenter the prison system is far too speculative
to justify finding a justiciable claim for injunctive relief. See
Lyons, 461 U.S. at 105-08 (holding that Lyons did not have
38 TORRES v. O’QUINN
standing to seek an injunction prohibiting the Los Angeles
Police Department from employing chokeholds because he
could not establish that he would be subjected to a chokehold
in the future); O’Shea v. Littleton, 414 U.S. 488, 497 (1974)
(holding that no case or controversy existed to enjoin local
magistrates from discriminating in the enforcement of crimi-
nal laws because it was to be assumed that "[plaintiffs] will
conduct their activities within the law and so avoid prosecu-
tion and conviction as well as exposure to the challenged
course of conduct said to be followed by petitioners"). Indeed,
it is debatable whether, in this circuit, Torres will ever have
to resume making payments under § 1915(b)(2) even were he
to reenter the prison system. See DeBlasio, 315 F.3d at 397("We hold that the PLRA fee requirements are not applicable
to a released prisoner (assuming the prisoner made any
required payments while in prison) and that his obligation to
pay filing fees is determined by evaluating whether he quali-
fies under the general in forma pauperis provision of 28
U.S.C. § 1915(a)(1)").
The majority rests its jurisdiction on a phantom claim for
a refund for "overpayment" of filing fees. In fact, however,
Torres makes no such claim. Torres asked simply why 40%
of his prison account income was being withheld and
requested that he be "stopped being charged 40%" to pay his
filing-fees indebtedness.
Moreover, there is no suggestion that Torres does not owe
the full amount of the filing fees charged in the two cases.
The applicable statute requires that he pay the full amount of
filing fees in each case that he files. See 28 U.S.C.
§ 1915(b)(1). Nor is there any suggestion that the amount col-
lected from Torres was greater than the total amount he owed
for filing fees. Accordingly, Torres does not and cannot claim
to have overpaid the filing fees. While it is true that he claims
that 20%, not 40%, should be withheld to pay a given install-
ment against his filing-fee indebtedness, his payment of 40%
in lieu of 20% does not entitle him to a refund.
TORRES v. O’QUINN 39
At bottom, with no continuing conduct to enjoin and an
insufficient likelihood that the conduct will resume, Torres’
claim that he be "stopped being charged 40%" became moot
the moment he was released from prison. Therefore, no justi-
ciable case or controversy now exists.
The majority provides no legal justification for the judicial
power it gratuitously exercises over a moot dispute other than
to conclude, "We, however, find it appropriate for the guid-
ance of the courts and corrections officials in this circuit, to
explain why, while Torres was in custody, withholding of
40% of his monthly income was inconsistent with our orders
and, ultimately, with the PLRA." Ante at 5 n.1. This desire "to
explain," however, provides no basis to render this a justicia-
ble case or controversy under Article III of the Constitution.
The majority opinion is, therefore, nothing more than an
unconstitutional advisory opinion on the operation of 28
U.S.C. § 1915(b)(2). Indeed, this is manifested by the very
relief it orders. It commands that "the Warden of Red Onion
State Prison shall collect and remit to the clerk of the United
States District Court for the Western District of Virginia, and
the clerk shall accept, no more than twenty percent of an
inmate’s preceding monthly income or trust account balance,
as the case may be, as payment toward his filing fees obliga-
tion." Ante at 25. Regardless of the "guidance" this directive
might provide for future inmates, Torres is the only petitioner
in this case. Because he is no longer in the custody of the Red
Onion State Prison, this directive has absolutely no effect on
him. This is the hallmark of an advisory opinion.
Because any relief requested is beyond the powers of this
court, the case must be dismissed.