Petition for writ of mandamus challenging the application of a standing order of the District Court for the Northern District of New York requiring prisoners to pay partial filing fees. Writ issued.
Oakes, Chief Judge, Newman and Cardamone, Circuit Judges.
JON O. NEWMAN, Circuit Judge
Since 1892 Congress has permitted indigent persons to bring lawsuits in federal courts without prepayment of filing fees. Act of July 20, 1892, ch. 209,27 Stat. 252 (codified, as amended, at 28 U.S.C. § 1915 (1982)). Recently, many district courts, concerned that this privilege has been abused by prisoners, have adopted rules requiring them to pay partial filing fees, calculated in accordance with various formulas. See T. Willging, Partial Payment of Filing Fees in Prisoner IFP Cases in Federal Courts: A Preliminary Report (Federal Judicial Center 1984). Within this Circuit, the first district to have adopted such a rule is the Northern District of New York. That District's standing order (hereinafter "the Fee Order"), adopted in 1985, requires a prisoner seeking to proceed in forma pauperis in connection with the filing of a civil rights complaint or a petition for habeas corpus to pay a partial filing fee equal to 10 percent of the sums deposited in the prisoner's trust account at the prison during the three months preceding the application, unless a magistrate determines that "special circumstances" justify a lesser amount. The maximum fees under the Fee Order are $5 for habeas corpus petitions and $120*fn1 for all other lawsuits, which are the normal filing fees. 28 U.S.C. § 1914(a) (Supp. V 1987). The Western District of New York, by local rule, adopted a similar partial payment requirement effective October 1, 1989.
This petition for mandamus challenges the application of the Northern District's Fee Order to a prisoner who completed the affidavit of indigency required of all in forma pauperis applicants but was denied i.f.p. status because he failed to pay a partial fee of $18.47, the sum calculated under the Fee Order. Lawrence Epps seeks a writ of mandamus directing the District Court to file his civil rights complaint, notwithstanding his failure to pay the partial filing fee. Though we acknowledge the authority of a district court to create some modest financial threshold for prisoners unable to afford the normal court filing fees, we conclude that the Northern District's Fee Order was unlawfully applied to Epps and that he may file his suit upon payment of a fee of $6. We therefore grant the petition for mandamus.
Epps sought to file in the District Court for the Southern District of New York a civil rights complaint, pursuant to 42 U.S.C. § 1983 (1982), against the superintendent of the Shawangunk Correctional Facility, where Epps is confined, and the New York Commissioner of Correctional Services. The complaint, which was transferred to the Northern District of New York, alleged that Epps' prison records erroneously identified him as a high-ranking member of the Black Liberation Army. Epps, who had been in prison for twelve years, accompanied the complaint with a request to proceed in forma pauperis and an affidavit of indigency in which he swore that he had no assets and that his income (apparently his prison wage) was "roughly $1.20 a day."
The Clerk of the Northern District, acting pursuant to the Fee Order, ascertained that during the three months preceding the submission of the complaint $184.68 had been deposited in Epps' trust account at the prison and determined that a partial filing fee of $18.47 (ten per cent) was therefore required.*fn2 The Clerk returned the complaint with instructions to Epps either to pay this fee or submit an affidavit of special circumstances. Epps chose the latter course. He reasserted that his wages did not exceed $1.20 a day and further averred that the average balance in his account for the prior three months had not exceeded $14.60 and that the bulk of these funds had been spent "on necessities such as soap, toothpaste, deodorant, soap powder and various legal items."
Thereafter, Magistrate Ralph W. Smith, Jr., to whom the papers had been presented, concluded that Epps had not demonstrated special circumstances sufficient to warrant relief from the partial payment requirement. He also stated that the form on which the complaint was filed incorrectly reported the number of Epps' prior lawsuits, since to the Magistrate's knowledge Epps had filed more suits than the form disclosed. The Magistrate directed the Clerk to return the complaint to Epps for correction of the number of prior lawsuits, to await a corrected complaint and the required partial filing fee, and to return all papers if a corrected complaint and fee were not received within 45 days.
Epps then filed in this Court a petition for mandamus to require the District Court to file his complaint without prepayment of the $18.47 fee. He alleged that information concerning his prior lawsuits was unavailable to him. We granted Epps leave to proceed in forma pauperis in this Court and appointed counsel. Meanwhile, the 45 days allowed by the Magistrate expired, and upon Epps' failure to submit a fee and a corrected complaint form, the District Court, upon the Magistrate's recommendation, entered judgment dismissing the action.
We encounter a preliminary issue concerning the appropriateness of mandamus. Mandamus is not a substitute for appeal, Schlagenhauf v. Holder, 379 U.S. 104, 110, 13 L. Ed. 2d 152, 85 S. Ct. 234 (1964), and the judgment of the District Court dismissing the action appears to be appealable. Arguably, the Magistrate's order rejecting Epps' application for relief from the partial fee requirement was appealable as a collateral order. On the other hand, it is not entirely clear that the Magistrate's order or the District Court's "judgment" were entered in a filed lawsuit. The Southern District had initially ordered the suit filed, leaving for determination by the Northern District whether the suit should proceed. The Northern District, however, did not fully regard the suit as filed; the Magistrate's order directed the Clerk to "file" the suit upon payment of the required fee, suggesting that the suit had not previously been filed. Under the circumstances, we think that Epps, proceeding pro se at the time, was entitled to believe that when the Magistrate required him to pay the filing fee, mandamus was an appropriate remedy to test the lawfulness of that requirement. Cf. In re Funkhouser, 873 F.2d 1076 (8th Cir. 1989); In re Smith, 600 F.2d 714 (8th Cir. 1979).
On the merits, Epps makes no challenge to the validity of the Fee Order, though he suggests that a more appropriate base for calculating the partial fee would be the average balance in the trust account during the prior three months or the sums deposited during the one month prior to the lawsuit. His principal contention, however, is that the Fee Order was unlawfully applied to him because $18.47 is too high a fee to be required of an indigent prisoner in his circumstances. He calculates that the required fee is higher than his average account balance (apparently figured on a daily basis) during the prior three months and that it is 30 percent of his average monthly deposits during this period. The respondent prison officials dispute the average balance calculation, but acknowledge that the account balance at month's end did not average more than $20.
All circuits that have considered the issue have upheld the authority of district courts to require prisoners to pay partial filing fees. See In re Williamson, 786 F.2d 1336, 1339-41 (8th Cir. 1986); Collier v. Tatum, 722 F.2d 653, 655 (11th Cir. 1983); Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir. 1983); Smith v. Martinez, 706 F.2d 572, 574 (5th Cir. 1983); Evans v. Croom, 650 F.2d 521, 522-23 (4th Cir. 1981), cert. denied, 454 U.S. 1153, 71 L. Ed. 2d 309, 102 S. Ct. 1023 (1982); cf. Zaun v. Dobbin, 628 F.2d 990, 993 (7th Cir. 1980) (non-prisoner, pro se litigants); see generally Note, Controlling and Deterring Frivolous In Forma Pauperis Complaints, 55 Fordham L. Rev. 1165, 1181-85 (1987). We share their view. The discretion to waive prepayment of filing fees, conferred upon district judges by Section 1915, need not be exercised on an all-or-nothing basis. The power to waive the entire fee includes the power to waive a portion of it. See In re Williamson, 786 F.2d at 1338.
We also share the implicit view of the other circuits that it is appropriate to fashion court rules for partial fees that apply only to prisoners. The discretion conferred on district judges by section 1915 is to be exercised so as not to deprive litigants of the "last dollar they have," Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339, 93 L. Ed. 43, 69 S. Ct. 85 (1948), nor the "necessities of life," Potnick v. Eastern State Hospital, 701 F.2d 243, 244 (2d Cir. 1983). But what constitutes the "necessities of life" that ...