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Seventh Circuit: Cost Bond Improper Tool to Address Prisoner’s Frivolous Filings

On May 30, 2012, the Seventh Circuit Court of Appeals reversed an Illinois federal district court’s order that imposed a cost bond on an indigent prisoner which the court knew he could not afford, holding that such an order is not one of the tools available for dismissing or discouraging frivolous lawsuits.

The appellate ruling was issued in a case involving Tamms Correctional Center prisoner Anthony Gay, whom, the Court of Appeals noted, has mental health problems and a long history of self-mutilation. He also has been very litigious, having filed more than 30 civil cases between October 1996 and January 2011.

Gay lost two of his lawsuits at trial, settled two others and lost or withdrew the rest. At least four cases were dismissed as frivolous, leading Gay to “strike out” under the Prison Litigation Reform Act (PLRA). Having lost his right to proceed in forma pauperis unless he is “under imminent danger of serious physical injury,” Gay continued to litigate in two ways. One was to invoke the imminent danger exception in an attempt to avoid the PLRA’s three-strikes rule for frivolous filings.

Gay used another method in this case, in which he sued three Tamms mental health professionals alleging constitutionally inadequate treatment and retaliation for a prior lawsuit. He circumvented the PLRA’s three-strikes rule by filing suit in state court, which the defendants then removed to federal court.

After the district court screened Gay’s complaint under 28 U.S.C. § 1915A, the defendants moved to require him to post a $1,000 bond to cover the costs they could recover under Fed.R.Civ.P. 54(d) if they prevailed in the lawsuit. They noted that Gay had failed to pay $2,100 in costs in a previous case he lost. The district court granted the motion, although everyone understood that Gay lacked the means to post the bond. In denying Gay’s motion to rehear, the district court acknowledged it knew virtually nothing about the merits of his claim.

On appeal, the Seventh Circuit said it had never addressed directly whether a court must consider a party’s ability to afford a bond before requiring one as a condition of prosecuting a lawsuit, but found case law from other circuits supported Gay’s argument that a court may not ignore an indigent litigant’s inability to pay.

As such, the Court of Appeals found the district court had abused its discretion in failing to consider Gay’s ability to post the required bond, as his indigency “did nothing to ensure that the defendants would recoup their costs if they prevailed. All it ensured was the end of Gay’s suit.”

In a footnote, the Seventh Circuit wrote that “a court must also consider the probable merits of the case before dismissing a suit based upon a plaintiff’s failure to pay a fee. If the suit has likely merit, then the value of the suit itself may reduce the need to insist on a separate payment from the plaintiff.”

Finally, the appellate court discussed the available tools to address frivolous litigation. Although the PLRA’s three-strikes rule does not apply in state court, federal district courts can impose both monetary and non-monetary sanctions under Fed.R.Civ.P. 11 for filing or maintaining claims for an improper purpose or without adequate legal or factual support. Courts may also place a party “under penalty of perjury” by requiring the submission of verified pleadings.

As a last resort, the Seventh Circuit noted that a court may bar a party from filing future lawsuits until outstanding fines have been paid. On remand in this case, the district court may “decide in the first instance whether Gay’s litigation history and refusal to pay out-standing debts justifies the sanction of a filing bar”; however, if such a sanction is imposed, the Court of Appeals specified it “can apply only to future filings.”

Accordingly, the district court’s order of dismissal was reversed and the case remanded for further proceedings, where it remains pending. See: Gay v. Chandra, 682 F.3d 590 (7th Cir. 2012).

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Related legal case

Gay v. Chandra