Appeal from the United States District Court for the Southern District of Illinois. No. 10-336-GPM--G. Patrick Murphy, Judge.
Before BAUER, KANNE, and HAMILTON, Circuit Judges.
Anthony Gay is a deeply disturbed Illinois inmate with a long history of self-mutilation. He has filed many unsuccessful lawsuits against prison staff and others. He is currently scheduled to be paroled in the distant year of 2095. In this lawsuit, Gay sued three mental health professionals at the prison alleging con- stitutionally inadequate treatment and retaliation for a prior lawsuit. The district court required him to post a $1,000 bond -- which it knew he could not afford -- to cover the defendants' costs if this suit proved unsuc- cessful. The court required the cost bond without evalu- ating the merit or lack of merit of Gay's claims in this case. When Gay did not post the bond he could not afford, the court dismissed the case with prejudice. We reverse and remand. District courts have several tools for dealing with indigent litigants who abuse the court system. Requiring a party to post a cost bond that the court knows the party cannot afford, however, is not one of those available tools for dismissing or discouraging frivolous suits.
I. Factual and Procedural Background
Gay is an inmate at Tamms Correctional Center in southern Illinois and has a lengthy history of unsuccessful civil rights litigation. Between October 1996 and January 2011, he filed more than 30 civil cases in federal district courts. Gay lost two at trial, settled two more, and lost or withdrew the remainder. At least four were dismissed as frivolous, leading Gay to "strike out" under the Prison Litigation Reform Act. 28 U.S.C. § 1915(g). Unless he is "under imminent danger of serious physical injury," Gay may no longer proceed in forma pauperis in federal court. Id.
Having struck out under the PLRA, Gay continues to litigate in two ways. One method, which he used in this case, is to start his suit in state court, where the three- strikes limit of the federal PLRA does not apply. In this suit, Gay alleges that Dr. Rakesh Chandra, a psychiatrist at the prison, increased his dosage of anti-anxiety med- ication without telling him, and did so to retaliate against him for having sued Dr. Chandra in another case. In the earlier case, Gay had charged that Dr. Chandra was deliberately indifferent to his mental illness, allowing Gay to mutilate himself. Gay also con- tends in his current suit that Dr. Chandra retaliated further by discontinuing his anti-anxiety medication when he learned that Gay had notified the judge presiding over the earlier case of Dr. Chandra's convic- tions for fraud and obstruction of justice. (Dr. Chandra has since prevailed in a jury trial in Gay's earlier case; evidence of his convictions was excluded). Finally, in the current suit, Gay also accuses another prison psy- chiatrist, Dr. Claudia Kachigian, and a social worker, Katherine Clover, of failing to provide adequate men- tal-health treatment despite knowing that he has a history of self-mutilation. After Gay filed this case in state court, the defendants removed it to federal court.*fn1
After the removal, Judge Reagan screened the complaint. See 28 U.S.C. § 1915A. He dismissed several counts as not sufficiently related to the claims against Dr. Chandra, Dr. Kachigian, and Clover, but allowed the claims against the three of them to proceed. Judge Reagan then transferred the case to Judge Murphy, who recruited an attorney for Gay.
Following these preliminaries, the defendants moved to require Gay to post a bond of $1,000 to cover the costs they could recover under Federal Rule of Civil Procedure 54(d) if they prevailed in the suit. They noted that Gay had failed to pay more than $2,100 in costs assessed after his prior suit against Dr. Chandra, and they argued that his long history of failed litigation made it likely that the district court would award them costs at the end of his new case. The defendants acknowl- edged Gay's indigence but contended that the court should nonetheless impose a bond to "send a message" to Gay that he needed to "exercise discretion and judgment in his litigious activity, accepting the conse- quences of his costly lawsuits." They asked the court to dismiss the suit without prejudice if Gay failed to pay. Gay opposed the defendants' motion, asserting that his claims could not be frivolous if they survived screening under § 1915A and arguing that he would be denied access to the court if forced to post a $1,000 bond that he could not afford.
The district court granted the motion and ordered Gay to post a $1,000 bond. The court relied on its inherent power to order a bond to secure the payment of future costs, explaining that its authority to award costs implies a power to require a bond. To justify the bond, it emphasized Gay's undeniable status as a "notorious pro se filer" and concluded that his failure to pay costs taxed from the previous suit demonstrated that he "has no concept of financial responsibility at all." The court did not discuss Gay's indigence. Nor did the court assess the possible merits of the case, other than (properly) to reject Gay's argument that, because his claims had sur- vived screening under § 1915A, they could not have been frivolous. Gay moved for reconsideration of the order, this time including an affidavit attesting to his indigence and an inmate trust-fund statement cor- roborating his claim of poverty. The court denied the motion, again making no mention of Gay's indigence but emphasizing that it had "no opinion whatever about the merits of Gay's claims in this case and in fact knows virtually nothing about them at this early stage of these proceedings." When Gay failed to post the bond as ordered, the court dismissed the case with prejudice under Federal Rule of Civil Procedure 41(b) for failing to comply with a court order.
II. Propriety of the Bond Order
On appeal Gay contends that the district court abused its discretion by requiring him to post a cost bond that it knew he could not afford. He argues that the bond requirement effectively blocked his access to the courts, a result he asserts is contrary to basic principles of due process. The defendants respond that dismissing a case because the plaintiff failed to post security for costs in the case is no different from barring filings by a plaintiff as a sanction for failing to pay sanctions or court fees in past cases.
We agree with Gay that requiring a plaintiff to post a bond to secure costs in a pending suit is different from sanctioning a litigant for failing to pay costs or sanctions from past suits. As we explain below, before requiring a bond to cover costs under Rule 54(d), a court must consider a party's ability to pay. A court abuses its dis- cretion when it requires a cost bond that it knows the party cannot afford. By contrast, courts can bar future suits as a sanction to punish a refusal to pay past court costs and sanctions even if the litigant is indigent. The district court here did not impose a filing bar as a sanction against Gay but invoked only its power to order a bond for costs. The court erred when it ordered Gay to post a bond it knew he could not afford.
The district court correctly reasoned that its authority to award costs to a prevailing party implies a power to require the posting of a bond reasonably calculated to cover those costs, even though no statute or rule ex- pressly authorizes such an order. See Anderson v. Steers, Sullivan, McNamar & Rogers, 998 F.2d 495, 496 (7th Cir. 1993) (affirming dismissal); Pedraza v. United Guaranty Corp., 313 F.3d 1323, 1335-36 (11th Cir. 2002) (recognizing inherent authority but vacating order not supported by necessary findings); Simulnet East Assocs. v. Ramada Hotel Operating Co., 37 F.3d 573, 574 (9th Cir. 1994) (same); Ehm v. Amtrak Board of Directors, 780 F.2d 516, 517 (5th Cir. 1986) (affirming dismissal). A ...