by Chuck Sharman

In Joseph Heller’s 1961 novel Catch-­22, WWII airmen faced a conundrum: They could be relieved from duty for insanity, but any request to be relieved was treated as evidence that they were sane. The book’s title entered the language as a humorous synonym for contradictory rules.

Fast-­forward over six decades to California, where a trio of state prisoners sued officials with the state Department of Corrections and Rehabilitation (CDCR). Under the Prison Litigation Reform Act (PLRA), they must each pay the full filing fee; but the same law prohibits collecting more than the full filing fee for any one lawsuit. As a result, the U.S. District Court for the Eastern District of California reasoned, they may not join together to sue. But on January 27, 2025, the U.S. Court of Appeals for the Ninth Circuit ruled on the case.

Prisoners Topaz Johnson, Ian Henderson, and Kevin Jones, Jr. accused High Desert State Prison guards of forcing them to stand handcuffed for nine hours without a break in cages fouled with urine, until the bottoms of their feet blistered and their lower backs ached. They filed their complaint in July 2022 and jointly filed an application to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915, giving them months or years to pay the required $350 filing fee.

The district court severed their claims, trying to reconcile provisions governing indigent Plaintiffs in § 1915, as amended by the PLRA, requiring each to pay the full filing fee, while also limiting the total amount collected for any one action to just one fee—so the law must therefore prohibit joinder of claims like theirs. The prisoners timely appealed. The Ninth Circuit reversed and rejoined their claims, though also charging them two more filing fees to continue.

The district court had correctly read the statute to charge each prisoner the full filing fee, the appellate Court said, pointing to other circuits’ rulings in Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001), and Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), as well as Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009). Five more circuits had specifically ruled that the statute does not limit the total amount of fees collected, just that no more than one fee can be collected from one prisoner.

The problem, the Court said, was that the district court had started with a provision of the law that applies to one prisoner—the requirement that each pays the full filing fee—and then switched “midstream” to assume that another provision—limiting the total fee collected—applies to two or more prisoners, as well. But in fact, the Court continued, both parts of the law apply to one prisoner only, so there was no hidden ban on joinder of prisoner claims.

Plaintiffs continued to argue for sharing the filing fee, but the Court found those arguments unpersuasive. To save the additional cost, they have the option not to file IFP, proceeding instead like non-­indigent plaintiffs and sharing a single filing fee anyway that they want—though without IFP’s provisions to extend payment over time.

Defendant CDCR officials continued to argue that severing the claims was proper, agreeing with the district court that allowing multiple pro se prisoners to join claims “present[s] unique problems,” such as might arise with their transfer to other prisons or release on parole, as well as “challenges to communication among plaintiffs presented by confinement.” Absent anything in the record to support those concerns, though, the Court called it error for the district court to rely on them to deny joinder of the prisoners’ claims.

In partial dissent, Judge Susan P. Graber agreed that denying joinder was an abuse of discretion but disagreed that § 1915 requires collecting more than one fee. The statute is not ambiguous, she insisted, pointing to provisions for collecting fees from prisoner Plaintiffs who lose; the statute doesn’t allow Defendants to collect additional amounts if there is more than one Plaintiff. Moreover, the majority’s reading of the law leaves indigent prisoners paying more than non-­indigent prisoners, the sort of “absurd” result that the Supreme Court of the U.S. decried in Ma v. Ashcroft, 361 F.3d 553 (9th Cir. 2004).

The majority, though, was more convinced by the history of the PLRA, citing it at length—including that prisoner suits represented 25% of the federal court docket before the law’s 1995 passage—to conclude that it was designed to limit prisoner litigation. Severance of the prisoners’ claims was therefore reversed, but each must pay the full filing fee. A request for rehearing en banc before the full Ninth Circuit was denied on July 24, 2025.

Plaintiffs were represented by attorneys with the Roderick & Solange MacArthur Justice Center in San Francisco and Washington, D.C. An amicus curiae brief was filed prior to the rehearing motion by the state and local chapters of the American Civil Liberties Union. See: Johnson v. High Desert State Prison, 127 F.4th 123 (9th Cir. 2025); and 2025 U.S. App. LEXIS 18385 (9th Cir.).  

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