651 F. 2d 970 - Flint v. E Haynes L Stover

This is a consolidated appeal from three separate inmate civil rights actions brought pursuant to 42 U.S.C. § 1983 in which judgment was entered for the defendants and costs were assessed against the plaintiffs. The only issue presented for review is whether the district court may assess costs against civil rights litigants who have been granted leave to proceed in forma pauperis.1 We find that 28 U.S.C. § 1915 authorizes the assessment of costs; accordingly, we affirm the judgments below.

In Marks v. Calendine, the plaintiff brought suit against two correctional officers of the West Virginia Penitentiary claiming that for eight years the state had denied him free clothing and toilet articles. Marks' supplemental complaint alleged the defendants had confiscated clothing that he had purchased with private funds. The plaintiff's application for leave to proceed in forma pauperis was granted and the court, sua sponte, appointed counsel. In a trial by jury, all the substantive issues were resolved in the defendants' favor. Pursuant to the defendants' request, the Clerk taxed costs against the plaintiff under Fed.R.Civ.Pro. 54(d). The district court stayed the action of the Clerk pending its review of whether such taxation was permissible. Subsequently, the court issued an opinion and order taxing costs against Marks in the amount of $289.00. Marks v. Calendine, 80 F.R.D. 24 (N.D.W.V.1978).2

In Flint v. Haynes, the plaintiff brought suit against the wardens of the Huttonsville Correctional Center and the West Virginia State Penitentiary alleging that he had been put in isolated confinement without procedural due process. Flint's motion for leave to proceed in forma pauperis was granted and the district court appointed counsel sua sponte. The case was tried before a jury, and a general verdict for the defendants was returned. The court entered judgment for the defendants and assessed costs against Flint based on its decision in Marks v. Calendine.3

In Stover v. Carter, the plaintiff's § 1983 complaint alleged that he had been assaulted by two correctional officers from the Huttonsville Correctional Center. The claim against one of the officers was dismissed prior to trial. Conflicting testimony concerning the alleged assault was presented to the jury, which returned a verdict for the defendant. Judgment was entered and costs were assessed against Stover based on the decision in Marks v. Calendine.4

We begin our inquiry with an examination of 28 U.S.C. § 1915(a) and (e) which provide:

(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress.

(e) Judgment may be rendered for costs at the conclusion of the suit or action as in other cases, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the costs of a stenographic transcript or printed record for the prevailing party, the same shall be taxed in favor of the United States.

The use of the word "prepayment" in subsection (a) indicates that Congress did not intend to waive forever the payment of costs, but rather it intended to allow qualified litigants to proceed without having to advance the fees and costs associated with litigation. By permitting the court to enter judgment for costs "as in other cases," subsection (e) evinces a congressional intent that litigants may eventually be liable for costs. It is clear that § 1915 contemplates the postponement of fees and costs for litigants who are granted in forma pauperis status.5

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

The appellants contend that costs should be assessed against civil rights litigants only in exceptional cases where the claim is frivolous, malicious or utterly without foundation.6 They rely primarily on the Hughes v. Rowe, --- U.S. ----, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) and Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) standards for awarding attorneys' fees to prevailing defendants under federal statutes.7

We are not persuaded that the same standards ought to apply to the taxation of costs. Generally, in the absence of a statutory provision to the contrary, litigants must pay their own attorney's fees, Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In contrast, costs are assessed against the unsuccessful litigant as a matter of course. There is a strong historical basis for applying different standards to the taxation of costs and the award of attorney's fees. Moreover, if we were to limit the taxation of costs against in forma pauperis litigants as the appellants suggest, we would have to ignore the language of § 1915(e) which permits judgments for costs "as in other cases." The assessment of costs in other cases is generally controlled by Fed.R.Civ.Pro. 54(d) which provides:

(d) Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs ....

According to this rule, the taxation of costs is a matter left to the sound discretion of the district court which we will not disturb absent a showing of an abuse of discretion. Farmer v. Arabian American Oil Company, 379 U.S. 227, 232, 85 S.Ct. 411, 415, 13 L.Ed.2d 248 (1964). Upon a careful review of the records in this appeal, we find no abuse of discretion in the assessment of costs against each of the appellants.8

Finally, the appellants argue that in order to insure that indigent civil rights litigants have access to the courts to redress their grievances, costs should rarely be assessed in these circumstances. However, when costs are assessed only in extreme or exceptional cases, those persons granted leave to proceed in forma pauperis have virtually "nothing to lose and everything to gain,"9 and the purpose of § 1915 equal access for the poor and the rich is distorted. Non-indigents who contemplate litigation are routinely forced to decide whether their claim is "worth it."10 We see no reason to treat indigents differently in this respect.

We are not unmindful of our duty to provide equal access to the courts for all persons. We have established procedures to assist the uncounselled,11 the legally unsophisticated,12 and the impoverished13 litigant who seeks relief in our courts. Yet we must also take steps to make certain that meaningful access to the courts remains available and equal. Various means of accomplishing these goals have been developed. Some courts have established a system of partial payment of court costs. In re Stump, 449 F.2d 1297 (1st Cir. 1971); Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex.1977).14 We have joined other courts in approving pre-filing review of complaints brought by prisoners with a history of litigiousness. Graham v. Riddle, 554 F.2d 133 (4th Cir. 1977). See Conway v. Oliver, 429 F.2d 1307 (9th Cir. 1970); Willard v. United States, 422 F.2d 810 (5th Cir. 1970); Carter v. Telectron, Inc., 452 F.Supp. 944 (S.D.Tex.1977); Green v. Garrott, 71 F.R.D. 680 (W.D.Mo.1976). The district court's "extremely broad" discretion to dismiss under § 1915(d) has generally been recognized as a means of allowing the court to exercise some control over its docket by removing frivolous or malicious cases. Boyce v. Alizaduh, 595 F.2d 948, 951 (4th Cir. 1979).

We find that the district court's decision to tax costs pursuant to § 1915(e) is a reasonable alternative which serves to assure that litigants will be required to assess the relative merits and risks of litigation before they proceed. Accordingly, the judgments of the district court insofar as they assess costs against the appellants are affirmed.

AFFIRMED.