                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      April 15, 2010
                     UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT




    MARK ANDREW CHRISTENSEN,

                Plaintiff-Appellant,

    v.                                             Nos. 09-8040 & 09-8054
                                                (D.C. No. 2:08-CV-00112-ABJ)
    BIG HORN COUNTY BOARD OF                               (D. Wyo.)
    COUNTY COMMISSIONERS; TONY
    HARRISON, Big Horn County Jail
    Sergeant; DWIGHT MACKAY,
    United States Marshall; EVA (LNU),
    Big Horn County Jail Nurse; SHERIFF
    BLACKBURN, Big Horn County
    Sheriff,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.


         Plaintiff Mark Andrew Christensen is a federal prisoner confined for a time

at the Big Horn County Jail in Basin, Wyoming. He subsequently brought this


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
civil rights action challenging certain conditions of his confinement at the jail.

Naming as defendants various county officials and employees, as well as the

United States Marshal, he sought redress for the alleged denial of adequate

medical care, access to the courts, and equal protection of the law (with respect to

medical care and access to the courts as compared to federal prisoners housed in

federal facilities). In the course of three separate orders, the district court

dismissed all of Mr. Christensen’s claims with prejudice under Rule 12(b)(6) of

the Federal Rules of Civil Procedure. 1 He now appeals, raising several procedural

objections to the disposition of his claims. Reading his appellate briefs liberally,

we construe them as also challenging the merits of the district court’s ruling that

his pleadings failed to state a claim. For the reasons explained below, we affirm.

                               I. THE COMPLAINT

A. Allegations Regarding Medical Care

      Mr. Christensen alleges that, on January 28, 2008, while incarcerated at the

Big Horn County Jail, he started vomiting and spitting up blood and noticed blood

in his stool. He experienced “extreme pain in [his] throat, stomach, and guts [and

was] unable to eat or drink.” Complaint (R. vol. 1 doc. 4) at 4. Two days later,

he was examined by defendant Nurse Eva and told her about his symptoms. Id.


1
       As to defendant “Nurse Eva,” the court also concluded that Mr. Christensen
had failed to provide sufficient information to allow service of the complaint. In
light of our disposition of this claim on the merits, we need not consider this
alternative basis for dismissal.

                                          -2-
“All she did was take [his] pulse and blood pressure by hand,” noting they were

“normal.” Id. She said that she would talk to a doctor, but never did. Id.

      On January 31, 2008, Mr. Christensen filed a grievance with jail officials

about the lack of medical care, and sent a letter about the issue to the office of the

United States Marshal in Billings, Montana. Id. at 4A. That afternoon, Nurse

Eva examined him in the presence of Jail Sergeant Tony Harrison, again taking

his blood pressure and pulse by hand and finding them to be normal. Id. That

evening, Sergeant Harrison transferred Mr. Christensen out of the general jail

population into an isolation cell in the booking area. Id.

      The next afternoon, another jail officer noticed blood on Mr. Christensen’s

washcloth and asked about it. Id. After Mr. Christensen explained his symptoms,

the officer contacted local hospital personnel and followed their recommendation

to take Mr. Christensen’s pulse and blood pressure, using the device kept for this

purpose in the jail medical station. Id. Getting “extremely high” readings, jail

personnel transported Mr. Christensen to the hospital emergency room, where a

doctor determined that his esophagus was torn and bleeding. Id. The doctor

prescribed Carafate to be used for three days to promote scabbing of the throat,

and Prilosec, evidently to reduce stomach acid and prevent additional esophageal

damage. Id. The doctor also recommended that Mr. Christensen maintain an

elevated position. Id. at 4B. Mr. Christensen was returned to the general jail



                                         -3-
population and issued a second mattress to help comply with the doctor’s

recommendation regarding elevation. Id. at 4A-4B.

      Mr. Christensen continued to have stomach complaints, and jail officials

put him on a bland diet. Id. at 4A; see also id. at 4B (noting Mr. Christensen’s

complaints about variety and caloric content of bland diet). Over the next ten

days, he reported that he had blood in his stool and was spitting up blood,

symptoms that were monitored and confirmed by jail officials. Id. at 4A.

      On February 14, 2008, Sergeant Harrison confiscated Mr. Christensen’s

second mattress. Id. at 4B. Within two days, however, another officer reissued it

to him. Id. Also on February 14, Nurse Eva extended the Carafate medication for

his throat without examining him and without obtaining permission from the

doctor who had issued the initial prescription. Id. Five weeks later, he was

transferred to the Yellowstone County Detention Center in Billings, Montana. Id.

At that time, his throat was “still scabbed up and hurting” and he “still ha[d]

stomach and gut issues not addressed.” Id.

      Finally, in addition to the above allegations specifically relating to the

treatment received by Mr. Christensen, his pleadings also complain in more

general terms about the medical care available to all inmates at the Big Horn

County Jail. He alleges that the jail is inadequate because it does not have full

time medical staff, necessitating the use of non-medical personnel to dispense

medication and make (unspecified) medical decisions. Id. at 4C.

                                         -4-
B. Allegations Regarding Access to the Courts

      Mr. Christensen complains in general terms that inmates at the jail are not

provided access to an adequate law library or collection of legal materials. Id.

His pleadings do not detail the specific deficiencies.

C. Allegations Regarding Denial of Equal Protection

      Mr. Christensen alleges in cursory fashion that his confinement at the

county jail violated his right to equal protection. See id. at 4C and 5. Basically,

he objects to the fact that while at the county jail, he was housed under conditions

that differed from those typically encountered by an inmate at a federal facility.

            II. SUMMARY OF DISTRICT COURT DISPOSITION

      Over the course of three orders, the district court dismissed all of

Mr. Christensen’s claims under Rule 12(b)(6). The court held that Nurse Eva’s

alleged conduct was insufficient to support a constitutional claim of deliberate

indifference under Estelle v. Gamble, 429 U.S. 97 (1976). The court similarly

concluded that the allegations specifically involving Sergeant Tony Harrison did

not rise to the level of any constitutional violation. Further, the court rejected

Mr. Christensen’s access-to-courts claim because the provision of a law library is

not the exclusive means of satisfying prisoners’ right of access and, in any event,

Mr. Christensen did not allege any actual prejudice as required for an actionable

claim under Lewis v. Casey, 518 U.S. 343, 351-55 (1996). Finally, regarding the

defendants who did not directly participate in the events recited in the complaint,

                                         -5-
the county commissioners, Sheriff Blackburn, and Marshal Mackay, the court held

that Mr. Christensen’s conclusory allegations of inadequate supervision and

training of jail staff, and “ultimate responsibility” for jail conditions and

treatment of federal inmates, did not state a claim for derivative liability.2

          III. PROCEDURAL OBJECTIONS RAISED ON APPEAL

      On appeal, Mr. Christensen argues that the district court erred in (1) failing

to order the defendants to prepare an investigative report pursuant to Martinez v.

Aaron, 570 F.2d 317, 318-19 (10th Cir. 1978); (2) ruling on defendants’ motions


2
       The district court did not address Mr. Christensen’s claim that his pretrial
confinement in the county jail violated his right to equal protection. Given his
perfunctory presentation of the claim below, the oversight is not surprising (and
Mr. Christensen does not even mention it on appeal). In any event, the claim
rests on a supposition–supported by no legal authority–that all persons in federal
custody, wherever they are housed, must be held under the same conditions and,
therefore, confinement at a county jail where conditions unavoidably (and quite
reasonably) deviate from what an inmate in a federal facility might typically
encounter is constitutionally impermissible. This position, which would in effect
deny federal (and state) prison authorities the ability to temporarily relinquish
physical custody of prisoners to local facilities, is meritless. See, e.g., Biliski v.
Harborth, 55 F.3d 160, 162 (5th Cir. 1995); Strickler v. Waters, 989 F.2d 1375,
1389 (4th Cir. 1993); Joost v. Cornell Corr., Inc., No. 99-1496, 2000 WL 627652,
at *2 (1st Cir. May 9, 2000) (unpub.).

       The district court also did not specifically address Mr. Christensen’s claim
regarding the lack of full-time medical staff. Again, he makes no objection to the
omission on appeal, and in any event our de novo review of the pleadings reveals
that this claim is facially deficient as well. There is no plausible factual basis to
causally connect the asserted constitutional deficiency to the alleged inadequacy
of the care Mr. Christensen received: he was in fact examined and treated by
medical personnel, at the jail and emergency room. As we will discuss, any
inadequacy in his care was a result of decisions made by these professionals, not
the lack of medical personnel to make such decisions.

                                          -6-
without a report and recommendation from a magistrate judge; (3) failing to give

him notice of the requirements for responding to a summary judgment motion

pursuant to Rule 56 of the Federal Rules of Civil Procedure; and (4) not allowing

him to amend his complaint. 3 We reject the first three objections immediately

below, and address the last in connection with our review of the merits of the

district court’s dismissal of the complaint under Rule 12(b)(6).

A. Lack of a Martinez Report

      This court’s precedent permitting the use of Martinez reports from prison

authorities does not somehow create a procedural entitlement on behalf of

prisoners seeking to avoid dismissal of deficient pleadings under Rule 12(b)(6).

Indeed, Martinez reports often provide the basis for summary dismissal of

frivolous prisoner filings under 28 U.S.C. § 1915, see, e.g., Schlicher v. Thomas,

111 F.3d 777, 779 (10th Cir. 1997); Olson v. Stotts, 9 F.3d 1475, 1476-77

(10th Cir. 1993); Johnson v. Stephan, 6 F.3d 691, 691-92 (10th Cir. 1993); or the

grant of summary judgment on behalf of prison defendants, see, e.g., Smith v.

Cummings, 445 F.3d 1254, 1257-59 (10th Cir. 2006); Schlicher, 111 F.3d

at 779-80; Ledoux v. Davies, 961 F.2d 1536, 1537-38 (10th Cir. 1992).

Moreover, the usefulness of Martinez reports, even for the defendant prison



3
       He also complains that insufficient efforts were made to serve Sheriff
Blackburn and Nurse Eva, but the lack of service on these defendants plays no
role in our disposition.

                                        -7-
officials, is inherently limited in the context of Rule 12(b)(6): “The court’s

function on a Rule 12(b)(6) motion is not to weigh potential evidence that the

parties might present at trial, but to assess whether the plaintiff’s complaint alone

is legally sufficient to state a claim,” and thus, “[i]n determining whether a

plaintiff has stated a claim, the district court may not look to the Martinez report,

or any other pleading outside the complaint itself, to refute facts specifically pled

by a plaintiff, or to resolve factual disputes.” Swoboda v. Dubach, 992 F.2d 286,

290 (10th Cir. 1993). Where, as here, the complaint clearly fails to state a claim,

the district court does not commit reversible error in forgoing a Martinez report.

B. Decision without Magistrate Judge Report and Recommendation

      The district court also did not err in declining to refer defendants’ motions

to dismiss to a magistrate judge for a report and recommendation. The governing

statute provides that the district court “may . . . designate a magistrate

judge . . . to submit . . . proposed findings of fact and recommendations for the

disposition of [such a] motion.” 28 U.S.C. § 636(b)(1)(B) (emphasis added).

“The statute permits, but does not require, a district judge to designate a

magistrate judge to submit proposed findings or recommendations for the

disposition of a case.” Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009).

In short, “reference to a magistrate judge is entirely discretionary . . . [and] [t]he

litigant has no right to a magistrate judge.” Id. at 933.



                                          -8-
C. Lack of Notice Regarding Rule 56 Requirements

      “[W]hen a district court relies on material from outside the pleadings, the

court converts the motion to dismiss into a motion for summary judgment . . . ,

[a]nd when such a conversion occurs, the district court must provide the parties

with notice so that all factual allegations may be met with countervailing

evidence.” Price v. Philpot, 420 F.3d 1158, 1167 (10th Cir. 2005) (quotation

omitted). As the above quote reflects, the conversion process and notice

requirement are not triggered by the mere presence of outside materials, but by

the court’s reliance on such materials–which are inapposite to a proper Rule

12(b)(6) disposition. See Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir.

2004) (noting that even where court’s receipt of outside materials was undisputed,

“to convert the District Court’s Rule 12(b)(6) order to one for summary judgment,

we must find that the District Court relied on this material in rendering its

decision”). And, for the same reason, even when a district court has erroneously

considered extraneous materials on an unconverted motion to dismiss, we may

still affirm “if the dismissal can be justified under Fed. R. Civ. P. 12(b)(6)

standards without consideration of the matters outside the pleadings.” Lowe v.

Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) (following Miller v.

Glanz, 948 F.2d 1562, 1566 (10th Cir. 1991)).

      While the district court briefly mentioned some extraneous materials, in

particular relating to the claims involving the Marshal’s responsibility for the

                                         -9-
conditions of confinement for federal prisoners, our reading of its orders does not

indicate a material reliance on this evidence for the court’s determination that the

complaint failed to state a constitutional claim against the parties involved. In

any event, our own review of the complaint, explained in the next section, does

not rely on any material outside the complaint and, thus, properly permits us to

affirm under the authorities cited above.

             IV. RULE 12(b)(6) DISMISSAL AND AMENDMENT

      We review de novo the district court’s grant of a motion to dismiss under

Rule 12(b)(6), applying the same legal standard applicable in the district court.

Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). Well-pleaded facts, as

distinguished from conclusory allegations, are accepted as true and viewed in the

light most favorable to the plaintiff. Id. To overcome a motion to dismiss, “the

complaint must include ‘enough facts to state a claim to relief that is plausible on

its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

And “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Bixler v. Foster, 596 F.3d 751, 756

(10th Cir. 2010) (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949

(2009)).




                                         -10-
A. Board of County Commissioners and Sheriff Blackburn 4

      The primary thrust of Mr. Christensen’s claims against these parties, who

did not directly participate in the operative events recounted in the complaint, is

that they are formally responsible for operations, conditions, and the conduct of

staff at the Big Horn County Jail. He also refers in conclusory terms to their

culpability for inadequate supervision and training of jail staff. The short answer

to these claims is that, in light of the inadequacy of the underlying constitutional

allegations against the actual participants–which we confirm on this appeal–there

is nothing for which these defendants may be held derivatively accountable. See

Martinez v. Beggs, 563 F.3d 1082, 1091-92 (10th Cir. 2009) (holding, in civil

rights action over medical care at county jail, that where “individual county

defendants . . . did not violate [jail inmate’s] constitutional rights, [the Sheriff]

and the county cannot be held liable [for policy, training, or supervision] as a


4
       Sheriff Blackburn has moved to dismiss the appeal as it relates to him, on
the ground that he had not yet been served at the time the case was dismissed (he
had just been substituted for another person incorrectly named as Sheriff). The
premise of this motion–that we lack jurisdiction to review dismissals unless the
dismissed defendant had previously been served–is meritless. Nothing insulates
such orders from appellate review–indeed, if it did, we could not review a whole
class of dispositions, involving dismissals under the screening mechanism in
28 U.S.C. § 1915A, which are routinely accomplished prior to service on the
defendants (the statute encourages screening “before docketing, if feasible”
(emphasis added)). Our precedent squarely contradicts the position taken by
Sheriff Blackburn. See, e.g., Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir.
2000) (expressly noting that “the plain language of § 1915A makes clear that the
statute . . . does not require that process be served . . . before dismissal,” in the
course of reviewing § 1915A dismissal order on the merits (quotation omitted)).

                                          -11-
matter of law”). The slightly longer answer, explained by the district court, is

that the allegations for the derivative liability of these defendants are themselves

facially deficient. Repeating that analysis here is unnecessary. Suffice it to say

that Mr. Christensen’s pleadings in this respect reflect the “formulaic recitation”

of “bare assertions” deemed categorically deficient by the Supreme Court in

Iqbal. 129 S. Ct. at 1951.

B. Marshal Mackay

      Essentially the same deficiencies are fatal to the claim asserted against

Marshal Mackay, who is named in the complaint on the basis of his vaguely

alleged “ultimate responsibility” for the treatment of federal inmates placed in

state of local custody. Again, he cannot be held liable on some derivative basis

for nonexistent constitutional violations. Nor was the conclusory claim asserted

against him supported by a factual foundation sufficient to hold him liable had

any constitutional injury occurred.

C. Nurse Eva

      In clarifying what constitutes actionable deliberate indifference to serious

medical needs in its landmark Estelle v. Gamble decision, the Supreme Court

“carefully noted . . . that ‘an inadvertent failure to provide medical care’ does not

rise to an Eighth Amendment violation.” Callahan v. Poppell, 471 F.3d 1155,

1159 (10th Cir. 2006) (quoting Estelle, 429 U.S. at 105-06). “‘Thus, a complaint

that a physician has been negligent in diagnosing or treating a medical condition

                                         -12-
does not state a valid claim of medical mistreatment under the Eighth

Amendment.”’ Id. (quoting Estelle, 429 U.S. at 106). This principle applies as

well to medical personnel other than doctors, including nurses examining

prisoners for immediate treatment and/or referral for further examination by a

physician. See, e.g., Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006)

(discussing Sealock v. Colorado, 218 F.3d 1205, 1208, 1211, 1212 n.7 (10th Cir.

2000)); Boyett v. County of Washington, 282 F. App’x 667, 675-76 (10th Cir.

2008) (unpub.). The alleged conduct of Nurse Eva here falls squarely within this

principle.

D. Sergeant Harrison

      Most of the allegations involving Sergeant Harrison are clearly inadequate

to support a claim of constitutional dimension. The only one warranting specific

comment is his removal of the extra mattress issued to assist Mr. Christensen in

maintaining the elevated position recommended by the emergency room doctor.

Staff interference with access to treatment recommended by medical personnel

can, of course, support a claim of deliberate indifference under Estelle. See, e.g.,

Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005); Howard v. Dickerson,

34 F.3d 978, 980-81 (10th Cir. 1994). But, as the district court emphasized, the

complaint indicates that the extra mattress was replaced within two days. Thus,

this episode would give rise to a claim of constitutional magnitude only if the

complaint plausibly pled that this short delay “‘resulted in substantial harm,’”

                                        -13-
such as “‘lifelong handicap, permanent loss, or considerable pain.’” Mata v. Saiz,

427 F.3d 745, 751 (10th Cir. 2005) (quoting Oxendine v. Kaplan, 241 F.3d 1272,

1276 (10th Cir. 2001), and Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.

2001), respectively). This critical allegation is neither expressly included in the

complaint nor plausibly inferred from the allegations that are made.

      Mr. Christensen specifies the harm attributed to the actions of the various

defendants in the “Injury” section of his complaint. His allegation of pain and

potential permanent damage to his throat relates to the delay in treatment from his

first complaints to Nurse Eva to his transportation to the emergency room a week

later, and to her later mistaken extension of his prescribed medication. Complaint

at 5-6. Nowhere does he allege any pain or possible injury caused by the two

days he went without the extra mattress. Indeed, he does not allege that he even

complained about it at the time. 5 There undoubtedly are circumstances in which

the serious and immediate threat posed by a medical condition, coupled with the

particular efficacy of a specific treatment at a critical juncture, would raise a

plausible inference that even two days’ delay involved constitutionally significant

harm, even if the plaintiff neglected to make the allegation. This is not that case.

The emergency response and treatment for the acute stage of Mr. Christensen’s


5
       While it appears that this claim was not exhausted through administrative
grievance, the present procedural posture of the case does not permit a disposition
on this basis. See Roberts v. Berraras, 484 F.3d 1236, 1240, 1244 (10th Cir.
2007).

                                         -14-
throat condition occurred well before the mattress episode. There is no claim that

the two days without the extra mattress reversed the benefit of this treatment or

triggered a resumption or exacerbation of symptoms. Moreover, there is no

indication, nor any practical reason to suppose, that the use of an extra mattress

was the only means available to Mr. Christensen simply to maintain an elevated

position while reclining. 6 We agree with the district court that the complaint

failed to state an actionable claim against Sergeant Harrison on this basis.

E. Opportunity for Amendment

      Mr. Christensen objects that he was not given the opportunity to cure his

pleading deficiencies by amendment. We see no reason to prolong this case with

a futile remand for this purpose. The claims asserted are legally inadequate for

fundamental reasons that plausible amendment would not cure. See generally

Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (noting

that “the district court may dismiss without granting leave to amend when it

would be futile to allow the plaintiff an opportunity to amend his complaint”).

While the district court did not itself make a determination regarding futility, that

is both (1) substantively harmless in light of our own de novo conclusion on the

matter, and (2) procedurally unobjectionable in light of Mr. Christensen’s failure


6
       Mr. Christensen does not allege that the doctor prescribed or specifically
insisted on the use of a second mattress. He alleges that the doctor recommended
maintenance of an elevated position–for which the jail chose to provide an extra
mattress rather than some other practical means to accomplish the same thing.

                                         -15-
to file a formally adequate and factually substantiated motion for leave to amend

in the district court following submission of defendants’ motions to dismiss under

Rule 12(b)(6), see Calderon v. Kan. Dep’t of Social & Rehab. Servs., 181 F.3d

1180, 1185 -87 (10th Cir. 1999); Glenn v. First Nat’l Bank, 868 F.2d 368, 370-71

(10th Cir. 1989).

       V. MOTION FOR SEQUENTIAL PAYMENT OF FILING FEES

      Mr. Christensen has filed a “Motion for Order from the Court Regarding

Payments,” requesting that filing fees for the two separate appeals resolved here

be collected sequentially rather than cumulatively. Under 28 U.S.C. § 1915(b), a

prisoner proceeding in forma pauperis in a civil action or appeal must still pay the

full filing fee, but is allowed to do so in installments, beginning with an initial

partial payment upon filing, section 1915(b)(1), followed by monthly installments

fixed at “20 percent of the preceding month’s income credited to the prisoner’s

account . . . each time the amount in the account exceeds $10 until the filing fees

are paid,” section 1915(b)(2). The thrust of Mr. Christensen’s motion is that he

wants the twenty percent deduction made for only one appeal at a time, freeing up

the remainder of his account for other expenditures while his fee obligation for

the second appeal is effectively suspended. We deny the motion. We agree with

the majority of circuits that have considered this question and held that the

limited deduction for fees specified in § 1915(b)(2) is triggered by each action or

appeal pursued, allowing here for the cumulative deduction of forty percent of

                                         -16-
Mr. Christensen’s monthly income to satisfy the fee obligations incurred for the

instant appeals.

      The pertinent language of § 1915(b)(2), considered in isolation, does not

provide a clear directive regarding application of the twenty-percent limitation:

“After payment of the initial partial filing fee, the prisoner shall be required to

make monthly payments of 20 percent of the preceding month’s income credited

to the prisoner’s account.” The majority “cumulative payment” or “per case”

position with which we agree has been adopted based on standard interpretive

principles (construing § 1915(b)(2) in light of other provisions in § 1915) and/or a

recognition that the overarching purpose of the statute, to restrain runaway prison

litigation with some pay-as-you-go constraint, would be diluted if not defeated by

permitting prisoners with one ongoing case to postpone all successive filing fee

obligations. 7 See Atchison v. Collins, 288 F.3d 177, 179-81 (5th Cir. 2002);

Newlin v. Helman, 123 F.3d 429, 436 (7th Cir. 1997), overruled on other grounds,

Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000); see Lefkowitz v. Citi-Equity Group,

Inc., 146 F.3d 609, 612 (8th Cir. 1998) (dealing with similar limitation on

payment of initial filing fee in § 1915(b)(1) and following Newlin to broadly hold



7
       In this regard we note that several circuits have held that once a prisoner is
released, any § 1915 partial payment obligations cease altogether (several circuits
disagree). See Carson v. Tulsa Police Dep’t, 266 F. App’x 763, 766 (10th Cir.
2008) (noting circuit split and declining to take a side, as issue was moot under
the circumstances).

                                          -17-
that “PLRA fee provisions were designed to require prisoners to bear financial

responsibility for each action they take, [and thus] the twenty-percent rule should

be applied per case”). The minority “sequential payment” or “per prisoner”

position that Mr. Christensen espouses was adopted by the Second Circuit to

avoid potential constitutional concerns over the burden simultaneous collection of

multiple fee obligations could place on a prisoner’s right of access to the courts.

See Whitfield v. Scully, 241 F.3d 264, 277 (2d Cir. 2001).

       A thoughtful discussion of the competing circuit positions is included in

Hendon v. Ramsey, 478 F. Supp. 2d 1214, 1216-20 (S.D. Cal. 2007), which sets

out a fairly thorough textual analysis supporting the cumulative-payment/per-case

approach. The analysis rests on the “‘fundamental cannon of statutory

construction that the words of a statute must be read in their context and with a

view to their place in the overall statutory scheme.’” Id. at 1219 (quoting Davis

v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)). Hendon cites several

instances in § 1915 where prisoner fee/fee-related obligations are clearly meant to

apply on a per-case basis, in particular: (1) the requirement in § 1915(a)(2) that

“[a] prisoner seeking to bring a civil action or appeal a judgment . . . shall submit

a certified copy of [his] trust fund account statement . . . for the 6-month period

immediately preceding the filing of the complaint or the notice of appeal”; and

(2) the requirement in § 1915(b)(1) that “if a prisoner brings a civil action or files

an appeal . . . [t]he court shall assess and, when funds exist, collect . . . an initial

                                           -18-
partial filing fee.” Regarding the trust fund statement, Hendon notes that “[t]he

plain language of [ § 1915(a)(2)] provides that a prisoner is required to submit a

copy . . . each time he files a complaint or notice of appeal, because the statement

must reflect the prisoner’s income for the six months preceding the filing date.”

478 F. Supp. 2d at 1219 (emphasis added). Similarly, regarding the initial filing

fee, Hendon notes that “[t]he plain language of [§ 1915(b)(1)] indicates that each

time a prisoner brings a civil action or files an appeal, an initial partial filing fee

is assessed.” Id. (quotation omitted and emphasis added). Read in light of these

related provisions, the court concludes that § 1915(b)(2) was also meant to apply

on a per-case basis:

      Given that the other provisions of § 1915 require a prisoner to submit
      documents and pay initial filing fees for each civil action or appeal
      he files, § 1915(b)(2) lends itself to a reading that the 20 percent
      monthly payments must also be collected for each civil action or
      appeal filed. In other words, the overall statutory scheme is written
      in a manner that requires prisoners to complete procedures and pay
      fees on a per case basis, rather than a per prisoner basis. Further,
      § 1915(b)(2) references “the initial partial filing fee” discussed in
      § 1915(b)(1), suggesting that the subsections of the statute are
      intended to be read as an overall statutory scheme. The Court thus
      FINDS that when read in the context of the entire statute,
      § 1915(b)(2) mandates that after payment of the initial partial filing
      fee for each action or appeal filed, prisoners are also required to
      make monthly payments of 20 percent of their income for each civil
      action or appeal filed.

Id. (emphasis added); see Atchison, 288 F.3d at 180-81 (reading § 1915(b)(2) as

applying on per-case basis because “the initial payment required by § 1915(b)[1]



                                          -19-
is imposed in each case, not once per prison[er] irrespective of the number of

suits initiated”).

       We find this textual analysis persuasive, particularly its consistent reading

of the similar provisions in §§ 1915(b)(1) and (b)(2). This court has previously

construed other aspects of § 1915(b)(2) to maintain consistency with an intent

evident in § 1915(b)(1). See Cosby v. Meadors, 351 F.3d 1324, 1326-27

(10th Cir. 2003) (construing reference to monthly “income” in § 1915(b)(2)

broadly “to include all deposits to the prisoner’s inmate account,” because similar

provision in § 1915(b)(1) refers to “deposits” and “this interpretation of the word

[income] produces consistency between § 1915(b)(2) . . . and § 1915(b)(1)”).

       Bolstering this conclusion from textual analysis is a recognition that the

cumulative-payment/per-case approach furthers the overarching purpose of

imposing the installment-payment obligations uniquely on prisoners, which, as

this court has explained, is “to reduce frivolous prisoner litigation by making all

prisoners seeking to bring lawsuits or appeals feel the deterrent effect created by

liability for filing fees.” Cosby, 351 F.3d at 1327 (quotation omitted). The

Seventh Circuit relied heavily on this legislative goal in adopting the

cumulative-payment/per-case approach:

       Otherwise a prisoner could file multiple suits for the price of one,
       postponing payment of the fees for later-filed suits until after the end
       of imprisonment (and likely avoiding them altogether). The PLRA is
       designed to require the prisoner to bear some marginal cost for each
       legal activity. Unless payment begins soon after the event that

                                         -20-
      creates the liability, this will not happen. A prisoner who files one
      suit remits 20 percent of income to his prison trust account; a suit
      and an appeal then must commit 40 percent, and so on.

Newlin, 123 F.3d at 436.

      On the other hand, we acknowledge the Second Circuit’s concern in

Whitfield about burdening prisoners’ access to courts, but we do not think that

concern controls here. First of all, the “canon of constitutional avoidance”

invoked by the Second Circuit properly comes into play only when a statute is

found to be ambiguous “after the application of ordinary textual analysis.”

Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1245 (10th Cir. 2008),

cert. denied, 130 S. Ct. 1011 (2009). In light of our conclusion that the meaning

of § 1915(b)(2) is fully intelligible once it is construed in light of the statute as a

whole, there is no occasion to apply the canon. See Atchison, 288 F.3d at 181

(noting that “the duty to avoid constitutional questions is not a license to rewrite

the statute,” and declining to follow Whitfield because “[e]ven if [the Second

Circuit’s] constitutional arguments had merit, we would be bound by the

unambiguous meaning of the text”).

      Secondly, we are not convinced that the cumulative-payment/per-case

position necessarily raises serious constitutional concerns. Hendon does a good

job of pointing out the unsubstantiated nature of the presuppositions underlying

the Second Circuit’s position on this point:



                                          -21-
      The Court must also examine whether requiring Plaintiff to pay
      20 percent of his monthly income for each action filed would place
      an unreasonable burden on his constitutional right of meaningful
      access to the courts. In Whitfield, the Second Circuit declined to
      hold that mandatory recoupment of 100 percent of a prisoner’s
      monthly income would be unconstitutional, but the panel did find
      that “such recoupment could raise serious concerns.” See 241 F.3d
      at 277. Similarly, in Lafauci [v. Cunningham, 139 F. Supp. 2d 144
      (D. Mass. 2001)], the district court found that recoupment of 100
      percent of a prisoner’s monthly income would raise serious
      constitutional concerns because it would leave a prisoner with “no
      income for postage, copying, paper, envelopes, writing utensils,
      etc.-potentially leaving him/her without means of court
      communication.” See 139 F. Supp. 2d at 147. However, the
      Supreme Court has stated that “[i]t is indisputable that indigent
      inmates must be provided at state expense with paper and pen to draft
      legal documents, with notarial services to authenticate them, and
      with stamps to mail them.” Bounds v. Smith, 430 U.S. 817, 824-25,
      97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Thus, even if 100 percent of
      Plaintiff’s income is recouped for filing fees, he will not be denied
      access to paper, writing instruments, or postage because the
      government is required to provide these materials to indigent
      inmates. Similarly, as noted by the Ninth Circuit, “[b]ecause
      prisoners are in the custody of the state and accordingly have the
      ‘essentials of life’ provided by the government,” even the most
      indigent prisoner subject to the cumulative collection of filing fees
      required by § 1915(b) will not be “required to make choices between
      his lawsuit and the necessities of life.” See Taylor v. Delatoore,
      281 F.3d 844, 849 (2002) (citations omitted). Further, § 1915(b)(4)
      expressly provides that a prisoner cannot “be prohibited from
      bringing a civil action” simply because he is impoverished. Id. at
      848. As a result, Plaintiff will still be permitted to initiate actions
      even if 100 percent of his monthly income is collected for filing fees.

Hendon, 478 F. Supp. 2d at 1219-20; see Atchison, 288 F.3d at 181. In the same

vein, some time ago this court upheld § 1915(b) against the general constitutional

objection that, under its fee provisions, the prisoner “is forced to choose between

spending his limited prison account on the small amenities of life available to him

                                        -22-
in prison and pursing an appeal [or civil action].” Shabazz v. Parsons, 127 F.3d

1246, 1248 (10th Cir. 1997). We quoted with express approval the following

passage, which reinforces the passage from Hendon above by adding the point

that the prisoner’s partial-payment obligations do not even apply to the first ten

dollars in his account:

      “To further ensure that prisoners need not totally deprive themselves
      of those small amenities of life which they are permitted to acquire in
      a prison or mental hospital beyond the food, clothing, and lodging
      already furnished by the state,” section 1915 allows payment to be
      taken from the prisoner’s account only where “the amount in the
      account exceeds $10 . . . .”

Id. (quoting Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997)) (further quotation

omitted).

      For the above reasons, we hold that § 1915(b)(2) authorizes cumulative

deductions of twenty percent for each civil action or appellate filing fee incurred

by a prisoner. We therefore deny Mr. Christensen’s motion to order sequential

payment of his appellate filing fees and thereby limit the monthly deduction for

his multiple appeals to a total of twenty percent of his income.




                                         -23-
      The judgment of the district court is AFFIRMED. Mr. Christensen’s

motion to proceed on appeal in forma pauperis is GRANTED, but his motion for

sequential payment of his fee obligations under § 1915(b) is DENIED. Sheriff

Blackburn’s motion to dismiss is DENIED.

                                                 Entered for the Court


                                                 Michael R. Murphy
                                                 Circuit Judge




                                      -24-
