                    United States Court of Appeals,

                           Eleventh Circuit.

                             No. 96-3026.

              Henry Greene MITCHELL, Plaintiff-Appellant,

                                  v.

Dave FARCASS, Superintendent, Hendry Correctional Institution, J.
King, Inspector Hendry Correctional Institution, Defendants-
Appellees.

                             May 6, 1997.

Appeal from the United States District Court for the Middle
District of Florida. (No. 96-201-CIV-FTM-25), Henry Lee Adams, Jr.,
Judge.

Before HATCHETT, Chief Judge, ANDERSON, Circuit Judge, and LAY*,
Senior Circuit Judge.

     HATCHETT, Chief Judge:

         In this prisoner civil rights action, we consider challenges

to provisions of the Prison Litigation Reform Act of 1995 ("PLRA"

or "the Act"), Title VIII of the Omnibus Consolidated Rescissions

and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321

(Apr. 26, 1996).     We hold that:     (1) the provisions of the PLRA

codified at 28 U.S.C. § 1915(e)(2) apply to cases pending prior to

the Act's passage;    (2) the filing fee requirements of the PLRA do

not violate the Constitution's guarantee of equal protection;     (3)

to the extent the PLRA's filing fee requirements conflict with

Federal Rule of Appellate Procedure 24(a), the Act's provisions

control;     (4) Federal Rule of Civil Procedure 12(b)(6) standards

govern our review of dismissals under section 1915(e)(2)(B)(ii);

and (5) the district court erred in dismissing the appellant's

     *
      Honorable Donald P. Lay, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
First Amendment retaliation claim under section 1915(e)(2)(B)(ii).

                              I. BACKGROUND

      On January 29, 1996, appellant Henry Mitchell, a Florida

prisoner proceeding pro se, initiated this lawsuit pursuant to 42

U.S.C. § 1983 against Dave Farcass, Superintendent of the Hendry

Correctional Institution ("HCI"), and J. King, an inspector at HCI.

The district court granted Mitchell's motion to proceed in forma

pauperis ("IFP").        Mitchell's complaint alleges the following

factual scenario.

      In late December 1995, Mitchell, then an inmate at HCI, wrote

a letter to the Naples, Florida office of the National Association

for the Advancement of Colored People in which he complained about

the religious services at HCI. Mitchell also sent copies of this

letter to several officials of Florida's correctional system,

including Farcass.       On January 15, 1996, Mitchell submitted an

inmate request to Farcass, asking him to explain "why no black

culture churches were being allowed to come into [HCI] like the

[S]panish culture churches and the white churches."               In this

request, Mitchell claimed that HCI's religious services did not

comply with the provision of the Florida Administrative Code that

governs chaplaincy services at state correctional institutions.

According to Mitchell, around eighty other inmates had submitted

requests "asking the same question or pertaining to that subject."

      The following day, January 16, a prison employee told Mitchell

to report to "C-Building."        Upon his arrival, Mitchell met with

Farcass, other HCI officials and another inmate.          Farcass had in

his   possession   the   inmate   requests   concerning   the   chaplaincy
services, including Mitchell's request.          Mitchell guesses that the

officials requested his and the other inmate's presence at this

meeting   because     they   considered    the   two    inmates   "to   be   the

leaders."      Farcass told the inmates that the amount of requests

upset him and that "some one could be charged with [in]citing a

riot."    Farcass, however, also told Mitchell and the other inmate

that the "meeting was to address the issue presented in the

requests" and that they "were not being charged with anything, ...

were not going to get locked up, [and] were not going to get

transfer[r]ed." Farcass informed the inmates that officials had to

process paperwork in order for representatives from black churches

to begin visiting HCI.

     The next day, January 17, an HCI employee told Mitchell to

report to the chaplain, and Mitchell wound up meeting with the

chaplain, assistant chaplain and assistant superintendent of HCI.

The assistant superintendent stated that the purpose of the meeting

was for the chaplain to explain the procedures churches had to

comply with before they could be permitted to provide religious

services at HCI. During the meeting, someone called the assistant

superintendent from the room.             Upon returning, the assistant

superintendent reported that Farcass and King had ordered Mitchell

placed    in    administrative     confinement         while   HCI    officials

investigated whether he was responsible for inciting a riot.

     HCI officials placed Mitchell in administrative confinement

that same day.       When officials brought Mitchell his property, he

found that his legal materials had been "smashed" and "crushed."

Later,    in   the   evening,   three     correctional     officers     entered
Mitchell's cell, handcuffed him behind his back, and "smashed" his

legal work and property.    Thereafter, Mitchell submitted another

inmate request to Farcass, this time asking that he be placed in

"protective management" because he feared further retaliation from

the HCI staff.

     Mitchell asserts that Farcass and King breached his rights

under the First, Fifth, Eighth and Fourteenth Amendments; he seeks

monetary relief.    On June 18, 1996, the district court addressed

Mitchell's complaint. Recognizing Mitchell's IFP status, the court

assessed his pleading under the provisions of section 804(a) of the

PLRA that are now codified at 28 U.S.C. § 1915(e)(2).      The court

held, "[a]fter reading Plaintiff's complaint in a liberal fashion,"

that Mitchell could "prove no set of facts in support of his claim

that would entitle him to relief."   Therefore, the court dismissed

Mitchell's   complaint     sua   sponte    pursuant   to     section

1915(e)(2)(B)(ii).1

     Thereafter, Mitchell moved in the district court to proceed

IFP on appeal.     On July 31, 1996, the court granted the motion

(thus allowing Mitchell to proceed without prepaying the entire

$105 appellate docketing and filing fee) and applied the filing fee

provisions of PLRA section 804(a), see 28 U.S.C.A. § 1915(a), (b)

(West Supp.1997).     As a result, the court ordered Mitchell to

tender payment of a fee equal to twenty percent of his average

monthly deposits to his prison account (this fee totalled $4) and

make monthly payments (submitted with updated account statements)


     1
      Farcass and King were never served with Mitchell's
complaint.
equal to twenty percent of the income credited to his account each

preceding month, until he paid the full docketing and filing fee.

Mitchell filed his notice of appeal on July 3, 1996.

     In his pro se brief to this court, Mitchell argued, among

other things, that the district court erred in applying section

1915(e)(2) to his complaint because he commenced this lawsuit prior

to the PLRA's enactment on April 26, 1996, and that the filing fee

provisions of the PLRA violated constitutional norms.             This court

appointed Mitchell a lawyer and placed this case on the oral

argument calendar.      The United States intervened in this action

pursuant   to   28   U.S.C.   §   2403(a),   and   the    State   of    Florida

participated as amicus curiae.

                              II. DISCUSSION

                                     A.

      The first issue we address is whether section 1915(e)(2)

applies to cases pending prior to the enactment of the PLRA. The

district court's determination of this issue was one of law;                 we

review it under the de novo standard.         E.g., Goldsmith v. City of

Atmore, 996 F.2d 1155, 1159 (11th Cir.1993).

     Prior to the passage of the PLRA, section 1915 permitted a

court to dismiss a case authorized under that section if "satisfied

that the action is frivolous or malicious."              28 U.S.C. § 1915(d)

(1994). As amended by the PLRA, however, section 1915 now provides

that a court "shall dismiss the case at any time" if it determines

that the "action or appeal" is "(i) frivolous or malicious;                (ii)

fails to state a claim on which relief may be granted;                 or (iii)

seeks monetary relief against a defendant who is immune from such
relief." 28 U.S.C.A. § 1915(e)(2)(B) (West Supp.1997). As stated,

the district court dismissed Mitchell's complaint under section

1915(e)(2)(B)(ii).

     "Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483,

128 L.Ed.2d 229 (1994), provides the analytical framework for

determining   whether   newly   enacted   statutory   provisions   are

applicable to pending cases."     Hunter v. United States, 101 F.3d

1565, 1569 (11th Cir.1996) (en banc ), petition for cert. filed, 65

U.S.L.W. 3648 (U.S. Mar. 10, 1997) (No. 96-1443).     Under Landgraf,

our first inquiry is "to determine whether Congress has expressly

prescribed the statute's proper reach." 511 U.S. at 280, 114 S.Ct.

at 1505.    Here, however, Congress has simply not spoken on the

issue.   Accordingly, we should apply section 1915(e)(2) to pending

cases unless doing so would engender a "retroactive effect."

Landgraf, 511 U.S. at 280, 114 S.Ct. at 1505;   see also Hunter, 101

F.3d at 1570.     A new statute has a retroactive effect if, in

applying it to a pending case, it (1) impairs rights a party

possessed when he or she acted, (2) increases a party's liability

for past conduct, or (3) imposes new duties with respect to

transactions already completed.     Landgraf, 511 U.S. at 280, 114

S.Ct. at 1505;   Hunter 101 F.3d at 1570.

     The second and third indices of statutory retroactive effect

outlined above clearly have no application to this case, and

Mitchell makes no argument to the contrary.      The issue for us to

consider then, is whether the application of section 1915(e)(2) to

this case "would impair rights [Mitchell] possessed when he acted."

Landgraf, 511 U.S. at 280, 114 S.Ct. at 1505.   Mitchell states that
under pre-PLRA section 1915, the first test of the sufficiency of

his complaint would probably have come after the defendants had

filed   a     motion   pursuant   to   Federal       Rule   of   Civil   Procedure

12(b)(6), after which time he could have amended his complaint in

light of the defendants' motion. Therefore, Mitchell contends, the

application of the PLRA amendments to his case deprived him of the

more liberal procedural treatment he had anticipated receiving

under the old provisions of section 1915(d).

       We   have   little   difficulty        in   concluding    that    Mitchell's

position fails.        As this court stated inHunter, "the term "rights'

as used in this context should not be construed broadly so as to

sweep within its ambit mere expectation interests under procedural

or remedy rules."         101 F.3d at 1572.          Mitchell concedes, as he

must, that the PLRA amendments at issue are "wholly procedural";

moreover, we cannot say that Mitchell has anything more than an

expectation interest in having pre-PLRA section 1915 applied in his

case.    Indeed, we find the appellants' position in               Hunter (i.e.,

that applying the certificate of appealability provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 to pending

cases would produce a retroactive effect), which this court sitting

en banc unanimously rejected, much more compelling than Mitchell's

argument. See Hunter, 101 F.3d at 1568-73. Consequently, we agree

with    the    Ninth    Circuit   that    section      1915(e)(2)       "raises   no

retroactivity concerns under Landgraf."               Marks v. Solcum, 98 F.3d

494, 496 (9th Cir.1996).

                                         B.

        We next consider whether the filing fee provisions of the
PLRA (1) withstand equal protection review and (2) are superseded

by Federal Rule of Appellate Procedure 24(a). These issues present

legal questions that we address in plenary fashion.                  E.g., Collins

v.   American    Cast     Iron   Pipe   Co.,   105     F.3d   1368,      1370   (11th

Cir.1997).

      Section    804(a)     of    the   PLRA   refashioned         the    procedures

prisoners    must    observe     when   seeking   to    proceed     IFP    in   civil

actions.    Title 28 U.S.C. § 1915(a)(2) now provides:

      A prisoner seeking to bring a civil action or appeal a
      judgment in a civil action or proceeding without prepayment of
      fees or security therefor, in addition to filing the affidavit
      filed under paragraph (1), shall submit a certified copy of
      the trust fund account statement (or institutional equivalent)
      for the prisoner for the 6-month period immediately preceding
      the filing of the complaint or notice of appeal, obtained from
      the appropriate official of each prison at which the prisoner
      is or was confined.

28 U.S.C.A. § 1915(a)(2) (West Supp.1997).                Section 1915(b) now

reads:

      (b)(1) Notwithstanding subsection (a), if a prisoner brings a
      civil action or files an appeal in forma pauperis, the
      prisoner shall be required to pay the full amount of a filing
      fee. The court shall assess and, when funds exist, collect,
      as a partial payment of any court fees required by law, an
      initial partial filing fee of 20 percent of the greater of—

           (A)      the   average   monthly    deposits       to   the    prisoner's
      account;      or

           (B) the average monthly balance in the prisoner's account
      for the 6-month period immediately preceding the filing of the
      complaint or notice of appeal.

      (2) 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 agency having custody of the prisoner
      shall forward payments from the prisoner's account to the
      clerk of the court each time the amount in the account exceeds
      $10 until the filing fees are paid.

      (3) In no event shall the filing fee collected exceed the
      amount of fees permitted by statute for the commencement of a
       civil action or an appeal of a civil action or criminal
       judgment.

       (4) In no event shall a prisoner be prohibited from bringing
       a civil action or appealing a civil or criminal judgment for
       the reason that the prisoner has no assets and no means by
       which to pay the initial partial filing fee.

28 U.S.C.A. § 1915(b) (West Supp.1997).

       Mitchell contends that the PLRA's filing fee requirements fail

equal protection rational basis review and thus deny him due

process under the Fifth Amendment.2       "The first step in determining

whether legislation survives rational-basis scrutiny is identifying

a    legitimate      government    purpose—a    goal—which   the   enacting

government body could have been pursuing." Haves v. City of Miami,

52     F.3d   918,   921   (11th   Cir.1995).      "The   second   step   of

rational-basis scrutiny asks whether a rational basis exists for

the enacting governmental body to believe that the legislation

would further the hypothesized purpose."          Haves, 52 F.3d at 922.

       After reviewing the statutory framework of the PLRA, this

court recently concluded that Congress promulgated the Act to

       2
        In his brief to this court, Mitchell's counsel made clear
that

              Mr. Mitchell does not contend that the amended
              statute's different treatment of indigent prisoners
              implicates the line of Supreme Court cases beginning
              with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585,
              100 L.Ed. 891 (1956), which generally prohibits making
              access to the appellate process dependent on the
              appellant's ability to pay.... Mr. Mitchell also does
              not contend that prisoners (or specifically indigent
              prisoners) are a suspect class for purposes of his
              equal-protection claim.

       Appellant's Br. at 17-18. We note that both the Fourth and
       Sixth Circuits have considered and rejected each of these
       contentions in denying challenges to the PLRA. See Roller v.
       Gunn, 107 F.3d 227, 231-33 (4th Cir.1997); Hampton v.
       Hobbs, 106 F.3d 1281, 1284-87 (6th Cir.1997).
curtail   abusive   prisoner     tort,    civil   rights   and   conditions

litigation. Anderson v. Singletary, No. 96-2697, --- F.3d ----, --

-- (11th Cir.1997);     see also Hampton v. Hobbs, 106 F.3d 1281, 1286

(6th Cir.1997) ("The legislation was aimed at the skyrocketing

numbers   of   claims    filed    by     prisoners—many    of    which   are

meritless—and the corresponding burden those filings have placed on

the federal courts.");     Santana v. United States, 98 F.3d 752, 755

(3d Cir.1996) ("Congress enacted the PLRA primarily to curtail

claims brought by prisoners under 42 U.S.C. § 1983 and the Federal

Tort Claims Act, most of which concern prison conditions and many

of which are routinely dismissed as legally frivolous."). Clearly,

Congress had a rational basis to believe that the fee requirements

of the PLRA would further this objective.           As the Sixth Circuit

recently found:

     Congress sought to put in place economic incentives that would
     prompt prisoners to "stop and think" before filing a
     complaint.     Congress's rationale for placing the fee
     requirements on prisoners is captured in the statements of
     Senator Kyl:

                Section 2 will require prisoners to pay a very small
           share of the large burden they place on the Federal
           judicial system by paying a small filing fee upon
           commencement of lawsuits.    In doing so, the provision
           will deter frivolous inmate lawsuits.         The modest
           monetary outlay will force prisoners to think twice about
           the case and not just file reflexively. Prisoners will
           have to make the same decision that law-abiding Americans
           must make: Is the lawsuit worth the price? Criminals
           should not be given a special privilege that other
           Americans do not have....

                The volume of prisoner litigation represents a large
           burden on the judicial system, which is already
           overburdened by increases in nonprisoner litigation. Yet
           prisoners have very little incentive not to file
           nonmeritorious lawsuits.      Unlike other prospective
           litigants who seek poor person status, prisoners have all
           the necessities of life supplied, including the materials
           required to bring their lawsuits. For a prisoner who
           qualifies for poor person status, there is no cost to
           bring a suit and, therefore, no incentive to limit suits
           to cases that have some chance of success.

                The filing fee is small enough not to deter a
           prisoner with a meritorious claim, yet large enough to
           deter frivolous claims and multiple filings.

     141 Cong. Rec. S7526 (daily ed.         May 25, 1995) (statement of
     Sen. Kyl) (citations omitted).

Hampton, 106 F.3d at 1286-87.      In addition to the foregoing, we

note that prisoners "often have free time on their hands that other

litigants do not possess."    Roller v. Gunn, 107 F.3d 227, 234 (4th

Cir.1997).   Moreover, prisoners have unique incentives to file

meritless or frivolous lawsuits,        e.g., to attempt to obtain a

"short sabbatical in the nearest federal courthouse," Cruz v. Beto,

405 U.S. 319, 327, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263 (1972)

(Rehnquist, J., dissenting), or to harass prison officials or

correctional officers.    See, e.g., Nasim v. Warden, Md. House of

Correction, 64 F.3d 951, 953-54 n. 1 (4th Cir.1995) ( en banc )

(noting that "all too often" prisoner litigation is initiated to

harass prison officials), cert. denied, --- U.S. ----, 116 S.Ct.

1273, 134 L.Ed.2d 219 (1996).      In short, "[d]eterring frivolous

prisoner filings in the federal courts falls within the realm of

Congress's legitimate interests, and the specific provisions in

question   are   rationally   related   to    the   achievement   of   that

interest."   Hampton, 106 F.3d at 1287;       accord Roller, 107 F.3d at

230-31, 233-34.

     Mitchell bases his equal protection challenge on Rinaldi v.

Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966).             In

that case, the Court struck down a New Jersey statute that required

unsuccessful criminal appellants who were incarcerated, but not
unsuccessful      criminal      appellants     who   were    not   imprisoned,    to

reimburse the state for the costs of trial transcripts.                   384 U.S.

at 308, 86 S.Ct. at 1499.             In so doing, the Court found that the

classification at issue did not further any of the purported bases

for the law—reimbursement, administrative convenience or deterrence

of frivolous appeals.          384 U.S. at 309-11, 86 S.Ct. at 1499-1501 .

Mitchell argues that the "distinction made in 28 U.S.C. § 1915(b)

between incarcerated indigent [litigants] and all other indigent

[litigants]      is    nearly    identical     to    the    distinction   made    in

Rinaldi."

     We find Rinaldi inapposite.              Unlike the situation here, that

case involved an "unreasoned distinction," i.e., the Court could

not find any justification for the classification the New Jersey

statute made.         See Rinaldi, 384 U.S. at 309-10, 86 S.Ct. at 1499-

1500.       In   enacting       the   PLRA,   however,      Congress   had   ample

justification (e.g., prisoners often have an abundance of free

time, live in a nearly cost-free environment, and have unique

incentives       to     file    meritless      or    frivolous      lawsuits)    in

differentiating between indigent prisoners and other litigants.

See Roller, 107 F.3d at 234 n. 2.

     Next, Mitchell contends that the fee provisions of the PLRA

stand in apparent conflict with Federal Rule of Appellate Procedure

24(a), which states that once a district court grants a party's

motion to proceed IFP, "the party may proceed without further

application to the court of appeals and without prepayment of fees

or costs in either court or the giving of security therefor."                   Fed.
R.App. P. 24(a).3       The Fifth Circuit recently considered this issue

and cited authority for the proposition that "a statute passed

after the effective date of a federal rule repeals the rule to the

extent that it actually conflicts."              Jackson v. Stinnett, 102 F.3d

132, 135 (5th Cir.1996).          The court went on to hold that "[t]o the

extent that the Rules Enabling Act (as expressed in Rule 24(a))

actually conflicts with the PLRA, we hold that the statute repeals

the Rule." Jackson, 102 F.3d at 136.                We adopt the analysis and

holding of the Jackson court.             See 102 F.3d at 134-36;         see also

Floyd v. United States Postal Serv., 105 F.3d 274, 278 (6th

Cir.1997) ("[T]o the extent that Rule 24(a) conflicts with the

PLRA, we hold that the statute repeals Rule 24(a).").

                                          C.

         Finally, we address the propriety of the district court's

dismissal       of   this   action,   i.e.,      whether    the   district    court

correctly concluded that Mitchell failed to state a claim on which

relief may be granted.         The language of section 1915(e)(2)(B)(ii)

tracks the language of Federal Rule of Civil Procedure 12(b)(6),

and we will apply Rule 12(b)(6) standards in reviewing dismissals

under section 1915(e)(2)(B)(ii).               Of course, we review dismissals

under    Rule    12(b)(6)    de   novo,   viewing     the   allegations      in   the

complaint as true.          E.g., South Fla. Water Management Dist. v.

Montalvo, 84 F.3d 402, 406 (11th Cir.1996).

     "To state a first amendment claim for retaliation, a prisoner

     3
      Although Mitchell discussed this issue in his brief, he did
not formally assert it. He did, however, pursue the issue at
oral argument, and therefore we address it. See Beckwith v. City
of Daytona Beach Shores, 58 F.3d 1554, 1561 n. 11 (11th
Cir.1995).
need not allege violation of a separate and distinct constitutional

right....     The gist of a retaliation claim is that a prisoner is

penalized for exercising the right of free speech."                   Thomas v.

Evans, 880 F.2d 1235, 1242 (11th Cir.1989).          In Bridges v. Russell,

757 F.2d 1155, 1157 (11th Cir.1985), we reversed the dismissal of

a complaint where the prisoner-appellant alleged that officials

transferred    him   to    another    facility   because   he   (1)    filed   a

grievance     against      his      work   supervisor      alleging      racial

discrimination in the assignment of work duties;                (2) actively

encouraged other inmates to sign a petition in protest of this

treatment;     and (3) prepared a similar grievance on behalf of

another inmate.      In our view, it does not appear beyond doubt that

Mitchell can prove no set of facts that would entitle him to relief

on his First Amendment claim for retaliation.              See Bridges, 757

F.2d at 1157;       see also Wildberger v. Bracknell, 869 F.2d 1467,

1468 (11th Cir.1989);       Wright v. Newsome, 795 F.2d 964, 968 (11th

Cir.1986).    Accordingly, we reverse the district court and remand

for further proceedings on this issue.

                                 III. CONCLUSION

     For the foregoing reasons, we hold that:                (1) the PLRA's

filing fee provisions easily pass equal protection rational basis

review;    (2) to the extent those provisions conflict with Federal

Rule of Appellate Procedure 24(a), the PLRA controls;                  (3) the

district    court    was   correct    in   concluding   that    28    U.S.C.   §

1915(e)(2) applied in this case;              (4) Federal Rule of Civil

Procedure 12(b)(6) standards govern our review of dismissals under

section 1915(e)(2)(B)(ii);           and (5) the district court erred in
dismissing Mitchell's First Amendment retaliation claim pursuant to

section 1915(e)(2)(B)(ii).       As a result, we remand to the district

court for further proceedings.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      LAY, Senior Circuit Judge, concurring:

      I am pleased to concur in Chief Judge Hatchett's excellent

opinion holding (1) that the filing fee provisions of the PLRA do

not violate a prisoner's equal protection rights, and (2) that the

procedural mechanism for dismissal of in forma pauperis (IFP) suits

found in § 1915(e)(2) may be applied retroactively.              I write

separately, however, to note my concern as to the constitutionality

of § 1915(e)(2)(B)(ii), which allows sua sponte dismissal of an IFP

complaint that fails to state a claim upon which relief may be

granted.

      This case comes to us in an unusual posture.           On June 18,

1996, the district court, without service of process, summarily

dismissed Mitchell's pro se complaint as failing to state a claim

for   relief,   applying   the   dismissal   standard   of   Fed.R.Civ.P.

12(b)(6).   On July 31, 1996, the district court granted Mitchell

leave to appeal IFP, assessing him filing fees pursuant to the new

provisions of § 1915(b).     The only issues decided by the district

court related to whether Mitchell had filed a complaint sufficient

to withstand dismissal under the new act.         On January 28, 1997,

this court ordered an expedited appeal and appointed counsel.

Although issues regarding the PLRA were not raised or briefed in

the district court, this court requested that counsel address the

constitutionality of § 1915(b), and the retroactive effect, if any,
of § 1915(e)(2).       I am informed that one of the reasons this court

took this action is that several hundred cases in the district

courts of the Eleventh Circuit are awaiting a decision on the

constitutionality and retroactivity of the PLRA. In addition, it

should be obvious that the court took this liberty because this

petitioner appeared pro se in the district court, and because of

the importance of these issues to all IFP litigants.

      Litigants and district courts, however, should not be confused

by   the   path   of     this   litigation.      Additional       constitutional
challenges to the PLRA, including the one I articulate today, are

not foreclosed by this court's opinion.            I write this concurring

opinion    to     note     my     concern   with    the     substance        of    §

1915(e)(2)(B)(ii),         used    in   this    case,     which     I   feel      is

constitutionally         flawed.        Since   this      court     raised        the

constitutional issues on its own, it seems to me our opinion should

be expanded to consider this additional constitutional concern.

      It is my view that in this section, Congress has deprived

prisoners and other indigents1 of a significant procedural right

      1
      Section 1915(e) applies to all IFP litigants—prisoners who
pay fees on an installment basis, prisoners who pay nothing, and
nonprisoners in both categories. Therefore, in my discussion of
§ 1915(e), I will usually use the term "IFP litigants" to
encompass all of these individuals. I note, however, that the
group most affected by § 1915(e) will be prisoners, simply
because they make up such a large fraction of IFP litigants. In
addition, the 1996 statute's purpose is to curtail prisoner
litigation, a point exemplified not only by its title, but also
by the ambiguous language in § 1915(a), which purports to apply
to any "person," but only if that person "submits an affidavit
that includes a statement of all assets such prisoner possesses."
(emphasis added). This section obviously needs clarification.
See Floyd v. United States Postal Serv., 105 F.3d 274, 275 (6th
Cir.1997) ("Despite the use of the term "prisoner possesses,' we
conclude that a typographical error in the final version of the
statute occurred and that Congress actually intended the phrase
that noninstitutionalized paying litigants enjoy, and has not

provided a rational justification for this differential treatment.

      Under the earlier version of the IFP statute, the district

court was empowered and instructed to dismiss an IFP application

sua sponte if it deemed the suit was frivolous or malicious.                          28

U.S.C. § 1915(d) (1994).                   This rule was in accord with the

established principle that a patently frivolous complaint may be

dismissed      for    want      of    subject     matter     jurisdiction          under

Fed.R.Civ.P. 12(b)(1).          Neitzke v. Williams, 490 U.S. 319, 327 n.

6, 109 S.Ct. 1827, 1832 n. 6, 104 L.Ed.2d 338 (1989) (citing Hagans

v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d

577 (1974);     Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776,

90   L.Ed.   939     (1946)).        The    obvious     rational    basis    for    such

peremptory action was that the government should not incur expenses

in   serving    parties      sued     in    frivolous    actions.         Thus,    named

defendants were typically not required to respond to these suits.

See Neitzke, 490 U.S. at 324, 109 S.Ct. at 1831 ("Dismissals on

these grounds are often made sua sponte prior to the issuance of

process, so as to spare prospective defendants the inconvenience

and expense of answering such complaints.").                   Section 1915(d)'s

successor,     28    U.S.C.     §    1915(e),    applied     here    to     Mitchell's

complaint, allows courts to dismiss a complaint sua sponte not only

for frivolousness, but also for failure to state a claim on which
                                                                             2
relief can be granted.              28 U.S.C. § 1915(e)(2)(B)(ii).                 While


to be "person possesses.' ").
      2
       Section 1915(e)(2) reads as follows:

      Notwithstanding any filing fee, or any portion thereof, that
courts have recognized that this seemingly innocuous change is a

significant expansion of the court's power, see, e.g., Douglas v.

DeBruyn, 936 F.Supp. 572, 579 n. 4 (S.D.Ind.1996), nothing in the

legislative history of the statute indicates that Congress was

aware of the real meaning of the change.          See 141 Cong Rec. S14413-

S14419 (daily ed.      Sept. 27, 1995);         141 Cong. Rec. S7525-S7527

(daily ed.   May 25, 1995).

     The   difference      between   dismissal       for     frivolousness   and

dismissal for failure to state a claim was explained by the Supreme
Court in Neitzke, which interpreted § 1915(d) of the old IFP

statute.   The        Neitzke    Court,    as    a     matter    of     statutory

interpretation, was critical of the district court in conflating

the standards of frivolousness under the old § 1915(d) and failure

to state a claim upon which relief could be granted.                  The Supreme

Court   observed    that   the   error    in   doing    so    denied   "indigent

plaintiffs the practical protections against unwarranted dismissal

generally accorded paying plaintiffs under the Federal Rules." 490


     may have been paid, the court shall dismiss the case at any
     time if the court determines that—

           (A) the allegation of poverty is untrue;              or

           (B) the action or appeal—

                   (i) is frivolous or malicious;

                   (ii) fails to state a claim on which relief may be
                   granted; or

                   (iii) seeks monetary relief against a defendant
                   who is immune from such relief.

     Its predecessor read, "The court may ... dismiss the case if
     the allegation of poverty is untrue, or if satisfied that
     the action is frivolous or malicious." 28 U.S.C. § 1915(d)
     (1994).
U.S. at 330, 109 S.Ct. at 1834.

      Neitzke recognized that protection from sua sponte dismissal

for failure to state a claim is a meaningful right:

      Under Rule 12(b)(6), a plaintiff with an arguable claim is
      ordinarily accorded notice of a pending motion to dismiss for
      failure to state a claim and an opportunity to amend the
      complaint before the motion is ruled upon. These procedures
      alert him to the legal theory underlying the defendant's
      challenge, and enable him meaningfully to respond by opposing
      the motion to dismiss on legal grounds or by clarifying his
      factual allegations so as to conform with the requirements of
      a valid legal cause of action.

Id. at 329-30, 109 S.Ct. at 1833-34.        The PLRA strips this right

only from IFP litigants, denying them equality of treatment in the

federal courts.     See id. at 330, 109 S.Ct. at 1834 (noting the

unfairness in applying the failure to state a claim dismissal

standard to § 1915(d), because an indigent litigant's complaint

"whose only defect was its failure to state a claim, will in all

likelihood be dismissed sua sponte, whereas an identical complaint

filed by a paying plaintiff will in all likelihood receive the

considerable benefits of the adversary proceedings contemplated by

the Federal Rules"). This differential treatment cannot in my view

be justified by the stated purposes of the PLRA—to deter frivolous

prisoner litigation and ease the burden of such suits on the

federal courts.    The distinction between immediate dismissal for

failure to state a claim and immediate dismissal for frivolousness,

if not lost on the average litigant, surely will not weigh heavily

in his or her decision whether to bring a claim.       Easing the small

bit of the courts' burden that is made up of complaints that are

not frivolous but nonetheless fail to state a claim simply cannot

be   justified   when   weighed   against   the   procedural   right   IFP
litigants are denied.       Depriving one group of this right while

retaining it for another stands in stark opposition to established

principles of equal access to courts for all litigants, which of

course is the original purpose behind 28 U.S.C. § 1915.                    See

Coppedge v. United States, 369 U.S. 438, 447, 82 S.Ct. 917, 922, 8

L.Ed.2d 21 (1962) (noting that the purpose of the IFP statute was

"to assure equality of consideration for all litigants");                  cf.

Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16

L.Ed.2d 577 (1966) (ruling that judicial mechanisms like appellate

review "must be kept free of unreasoned distinctions that can only

impede open and equal access to the courts").3

     In   stating   my   objections,   I   recognize   that   there   is   no

question that many prisoner suits are baseless.         I also agree that

the payment of a filing fee may well deter such suits.           We should

proceed with caution, however, in approving additional deterrence

mechanisms that trample prisoner litigants' rights, for fear we

lose sight of the purpose of prisoner litigation:              to protect

prisoners' constitutional rights, and to curb inhumane treatment

and abuse of power in prison environments.         See generally, e.g.,

Hudson v. McMillian, 503 U.S. 1, 4, 112 S.Ct. 995, 997-998, 117

     3
      The same problems arise under the newly given right of the
court to dismiss claims on the ground of immunity. Under
Fed.R.Civ.P. 12(c), the defense of immunity is an affirmative
defense, which should be asserted in an adversarial setting.
Some courts have required plaintiffs responding to assert
specific facts addressing the defense of qualified immunity in a
special reply under Rule 7, governing notice pleading. See,
e.g., Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995) (en
banc). Often, factual issues need to be resolved to determine
whether immunity is justified. Resolution of these issues can
only occur in an adversarial setting. Obviously, if the case is
patently frivolous on immunity grounds, the court can still
dismiss it before service, under § 1915(e)(2)(B)(i).
L.Ed.2d 156 (1992) (determining that prison guards who placed an

inmate in handcuffs and shackle and beat him while their supervisor

told them "not to have too much fun" used excessive force in

violation of the Eighth Amendment);   Smith v. Wade, 461 U.S. 30,

103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (affirming a punitive damage

award against a prison guard whom a jury found liable for the

harassment, beating, and homosexual rape of a Missouri reformatory

inmate);   Hutto v. Finney 437 U.S. 678, 681-83, 98 S.Ct. 2565,

2568-70, 57 L.Ed.2d 522 (1978) (deeming the district court's

characterization of Arkansas prison conditions as "a dark and evil

world completely alien to the free world" to be "amply supported by

the evidence").   While many prisoner lawsuits are a burden to the

state and to the judicial system, limited overview by the courts

serves as a deterrent to prison authorities who might otherwise

abuse their power, and serves also as a necessary inducement to

them to provide humane conditions to prisoners.4




     4
      Chief Judge Jon Newman of the Second Circuit has challenged
courts with prisoner litigation suits before them to "avoid
letting the large number of frivolous complaints and appeals
impair their conscientious consideration of the few meritorious
cases that are filed." Hon. Jon O. Newman, Pro Se Prisoner
Litigation: Looking for Needles in Haystacks, 62 Brook. L.Rev.
519, 527 (1996). The adversarial process inherent in the
standard for dismissal for failure to state a claim is a useful
tool in meeting this challenge. See Neitzke, 490 U.S. at 330,
109 S.Ct. at 1834. Congress has not provided a rational
justification for denying the courts this tool and
differentiating between indigent and nonindigent litigants.
