It is not surprising, therefore, that those courts which have addressed the matter have concluded that the litigation subsidy for cases under § 1915 should not be unbounded; therefore, many courts have felt free to exercise practical restraint in awarding the § 1915 supplemental subsidy, especially in prisoner litigation. Plaintiffs' position here, curiously enough, is that the court should be oblivious to such considerations.
Plaintiffs contend that requiring even partial payment by someone who can afford some part of the § 1914 filing fee is an unconstitutional burden on the right of access to the courts. This contention is misguided. A filing fee clearly does not violate the Constitution; if it did, § 1914 itself would be unconstitutional. Lumbert v Illinois Dep't of Corrections, 827 F.2d 257, 259 (7th Cir 1987). Instead, the proper rule is that reasonable costs may be imposed on persons who want to sue. Id. The problem arises in deciding what is reasonable.
The imposition of a partial filing fee when it is economically feasible for a plaintiff to pay it does not have a chilling effect on indigent plaintiffs, nor does it infringe on any right of reasonable access to the courts. Although federal court litigation is substantially encouraged as a matter of federal policy, this is nowhere required by the Constitution. In fact, it would be perfectly consistent with the Constitution to require all civil litigants to pay the full costs of operating the federal courts. Given that the federal courts are, after all, creatures of Congress, litigation in federal court is merely a privilege; it is not a right, much less an absolute one as plaintiffs contend.
On its face, 28 U.S.C. § 1915(a) does not call for the payment of partial filing fees. Every circuit court which has considered the appropriateness of a partial filing fee, however, has explicitly or implicitly upheld the district courts' discretion to impose partial filing fees on plaintiffs seeking in forma pauperis ("IFP") status. See Butler v Leen, 4 F.3d 772, 773 (9th Cir 1993); Clark v Ocean Brand Tuna, 974 F.2d 48, 50 (6th Cir 1992); In re Epps, 888 F.2d 964, 967 (2d Cir 1989); Bryan v Johnson, 821 F.2d 455, 458 (7th Cir 1987); 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); In re Stump, 449 F.2d 1297, 1298 (1st Cir 1971). During the time this motion has been under consideration, the Ninth Circuit has had pending a case in which this very issue is raised. In a recently issued decision in that case, the court strongly implied that a partial filing fee is permissible. See Alexander v Carson Adult High School, 9 F.3d 1448, 1993 U.S. App. LEXIS 30947 (9th Cir 1993).
The language of § 1915(a) granting the courts discretion to waive costs entirely has been construed as also providing the authority to waive only a portion of those costs. "The discretion to waive prepayment of filing fees * * * 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." In re Epps, 888 F.2d at 967; see also In re Williamson, 786 F.2d at 1338 ("It is logical that if the court may grant a waiver of 100 percent of the costs on * * * items, the court is also vested with the discretion to waive a lesser percentage of such costs.") (quoting Braden v Estelle, 428 F. Supp. 595, 598-99 (SD Tex 1977)); T. Willging, Partial Payment of Filing Fees in Prisoner IFP Cases in Federal Courts: A Preliminary Report 1 (Federal Judicial Center 1984) (courts have discretion under § 1915(a) to impose partial payment plans).
Further support for the court's authority to grant only a partial fee waiver arises from the fact that § 1915 does not confer on indigent plaintiffs a right to waiver of all litigation fees and costs. Instead, § 1915(a) allows indigent plaintiffs only to commence a suit without prepayment of initial filing and service fees. Flint v Haynes, 651 F.2d 970, 973 (4th Cir 1981), cert denied, 454 U.S. 1151, 71 L. Ed. 2d 306, 102 S. Ct. 1018 (1982). Furthermore, IFP status may be acquired or lost during the course of the litigation, and the court may waive or order payment of costs for any of the benefits that may arise under the statute. See Evans v Croon, 650 F.2d at 525 n.12; Carter v Telectron, Inc., 452 F. Supp. 939, 942 (SD Tex 1976).
It follows from the above that prepayment of initial filing fees may be waived in part when it is economically feasible for an IFP plaintiff to pay a portion thereof. After all, the determination of economic feasibility or hardship is wholly within the discretion of the court. See Adkins v E.I. DuPont de Nemours & Co., 335 U.S. 331, 337, 93 L. Ed. 43, 69 S. Ct. 85 (1948) (there are "few more appropriate occasions for use of a court's discretion than" where a litigant asks "that the public pay costs of his litigation"); Johnson v Kemp, 781 F.2d 1570, 1571-72 (11th Cir 1986) (district courts have wide discretion in determining whether fee is fair).
But perhaps the most persuasive argument for the imposition of partial fee payment is that to do so encourages IFP plaintiffs to evaluate the worth of their claims. The initial question facing non-indigent plaintiffs is whether their actions are worth the costs of the suit, including the § 1914 fee. On the other hand, "'a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.'" Denton v Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1733 (1992) (quoting Neitzke v Williams, 490 U.S. 319, 324, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989)). By imposing some affordable fee even on indigent prospective plaintiffs, courts can help to ensure that each plaintiff believes his claim has some merit, thereby preventing the filing of suits just for harassment purposes. See Collier v Tatum, 722 F.2d at 655.
The costs of litigation, of course, are not limited to those who initiate it. They are also borne "by the defendant, by the taxpayers, and by parties to other lawsuits in the same court, whose cases may be delayed or who may receive less attention from the judges than if the caseload were lighter." Lumpert, 827 F.2d at 259. These social costs are particularly problematic in the case of IFP litigants, because they cannot be deterred from suit; if all costs of litigation are waived, they have nothing to lose and everything to gain. See Flint v Haynes, 651 F.2d at 972. Having to make even a modest monetary outlay should encourage a putative plaintiff "to think about the case and not just file reflexively." Lumpert, 827 F.2d at 259.
The court therefore concludes that the imposition of a partial filing fee when it is economically feasible for an IFP plaintiff to pay it is not only sound policy, but is also a fair means of allocating scarce judicial resources so as to reach the maximum number of meritorious suits.
After reviewing Stehouwer's affidavit of poverty in support of his request to proceed IFP, the court determined that a partial filing fee of $ 20, in two installments of $ 10 each, was in order. See Stehouwer v Hennessey, C 92-4602 VRW at 2 (ND Cal May 25, 1993) (order requiring payment of partial filing fee). The court based its decision on an approximate monthly prison salary of $ 14.61, a prison trust fund balance of $ 14.61, and a statement indicating that for the six months immediately preceding the submission of the complaint, plaintiff received payments into his trust fund account of $ 110 from his family.
Stehouwer contends that since he is no longer in prison (he was paroled on August 8, 1993), he should be permitted to proceed without prepayment of fees like other indigent litigants. He claims that most courts that have adopted or upheld partial fees have done so in the context of prisoner litigants, presumably as a means of reducing prisoner litigation. While it is true that most of the cases addressing the imposition of partial fees do involve prisoner plaintiffs and that prisoner litigation poses great concerns, see supra at 8-9, the rationale behind partial filing fees is not limited to prisoner litigants. The purpose of partial payment systems is to require IFP plaintiffs, whether or not they are incarcerated, to evaluate the worth of their claims before filing suit. The social cost of the instant case is no less now that Stehouwer is out of prison than it was when he was in. The only significant change, if any, is that it can no longer be said that Stehouwer's necessities of life are being paid for by the state. Compare In re Epps, 888 F.2d at 967 (prisoners' necessities of life are paid for by jurisdiction that incarcerates them). Therefore, the proper inquiry is whether it is still economically feasible for Stehouwer to pay a part of the filing fee.
On September 30, 1993, the court issued an order allowing Stehouwer to file an updated affidavit of poverty within fifteen (15) days. Stehouwer failed to respond. Only Stehouwer's original affidavit of poverty is on file for consideration; accordingly, the court's previous assessment of a partial filing fee of $ 20, in two installments of $ 10 each, was required to proceed IFP shall stand.
The court also determined that a partial filing fee of $ 30 was a feasible amount for Olivares to pay. See Olivares v Marshall, C 93-0405 VRW at 2 (ND Cal May 25, 1993) (order requiring payment of partial filing fee). The court based its decision on a prison trust fund balance of $ 76.29, and a statement indicating that for the six months immediately preceding the submission of the complaint, plaintiff received payments into his trust fund account of $ 310 from his family.
Plaintiff argues that a $ 30 partial filing fee is excessive because by the time he received the court's order requiring the partial fee, he had only $ 36 remaining in his account. The fact that plaintiff's balance has diminished while the IFP determination was pending is not determinative of the proper fee, however, since the lower balance may well be an intentional distortion due to posturing. See Collier v Tatum, 722 F.2d at 655; In re Stump, 449 F.2d at 1297. Nor is there reason to believe that the account will not once again be replenished. See Smith v Martinez, 706 F.2d at 574 (court may reasonably anticipate continuing family contributions). But most importantly, the imposition of a $ 30 partial filing fee does not require a fee greater than plaintiff's assets, see Alexander, 9 F.3d 1448, 1993 U.S. App. LEXIS 30947 at *3, nor will it deprive plaintiff of the basic necessities of life, see Adkins, 335 U.S. at 339. The state of California, after all, provides plaintiff with his basic necessities. "If the inmate thinks that a more worthy use of his funds" is to buy candy and the like, rather "than to file a civil rights suit, he has demonstrated an implied evaluation of the suit that the district court is entitled to honor." Lumpert, 827 F.2d at 260.
Both plaintiffs have been given an opportunity to explain why the partial filing fee imposed here should not be required. In that connection, both plaintiffs have been represented by able counsel. No explanation from either plaintiff has been advanced.
For the foregoing reasons, plaintiffs shall pay the above-mentioned partial filing fees within twenty (20) days from the date of this order. If either plaintiff fails timely to pay his appropriate fee, his action will be dismissed.
VAUGHN R. WALKER
United States District Judge