               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 35887

LERAJJAREANRA-O-KEL-LY,                          )     2009 Opinion No. 59
                                                 )
       Plaintiff-Appellant,                      )     Filed: August 24, 2009
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
MARK SCHOW,                                      )
                                                 )
       Defendant-Respondent.                     )
                                                 )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Richard T. St. Clair, District Judge.

       Order denying motion to waive sheriff’s fee for service of writs, affirmed.

       Lerajjareanra-o-kel-ly, appellant, appearing pro se.

       Mark Schow, respondent, did not participate on appeal.
                ________________________________________________
GRATTON, Judge
       Lerajjareanra-o-kel-ly (Appellant) appeals from the district court’s order denying his
motion to waive the sheriff’s fee for service of writs of execution and garnishment. For the
reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       In June 2008, the district court entered a judgment pursuant to a jury verdict in favor of
Appellant against Mark Schow in the amount of $8,448.28.           A debtor’s examination was
conducted before the district court in October 2008. At the debtor’s examination, Appellant
moved the district court to enter an order waiving the sheriff’s fee for service of writs of
execution and garnishment. The district court denied Appellant’s motion for a waiver and he
appeals.




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                                                II.
                                           ANALYSIS
       Appellant’s only argument to this Court is that he was denied equal protection of the law
because, as a prisoner, Idaho’s statutory scheme for proceeding in forma pauperis does not
provide for a waiver of the sheriff’s fee for service of writs of execution and garnishment when
such a waiver is available for nonprisoner indigent persons. Specifically, Appellant argues that
Idaho Code § 31-3220(6)1 provides for a waiver of fees in certain cases for indigent persons but
excludes prisoners and     Idaho Code § 31-3220A2 governing indigent prisoner filing fees
generally requires at least partial payment of fees in violation of his right to equal protection of
the laws.3 Schow, as the Respondent, did not file a brief or otherwise participate in this appeal.
Whether there is an equal protection violation because indigent nonprisoners are treated



1
        Idaho Code Section 31-3220(6) governs waiver of fees for indigents, but specifically
excludes prisoners. That statute provides that “the officers of the court shall issue and serve all
process, and perform all duties in cases in which the person is found by the court to be
indigent. . . . Payment of fees for service of process and witnesses, where required, shall be paid
out of the district court fund of the county in which the action is filed.” I.C. § 31-3220(6). It is
not entirely clear from the language of the statute whether indigent nonprisoners are eligible for a
waiver of a fee that is directed to the sheriff for service of writs of execution or garnishment.
See, e.g., Robert F. Koets, Annotation, What Constitutes “Fees” or “Costs” Within Meaning of
Federal Statutory Provision (28 U.S.C.A. § 1915 and Similar Predecessor Statutes) Permitting
Party to Proceed In Forma Pauperis Without Prepayment of Fees and Costs or Security
Therefor, 142 A.L.R. FED. 627 (1997) (examining what fees can be waived in a similar federal
statute); E. E. Woods, Annotation, What costs or fees are contemplated by statute authorizing
proceeding in forma pauperis, 98 A.L.R.2d 292 (1964). However, for the purpose of this
opinion only we will assume, without deciding, that an indigent nonprisoner is eligible for a
waiver of the fee directed to the sheriff for service of writs of execution or garnishment and that
an indigent prisoner is not eligible for such a waiver.
2
        Idaho Code Section 31-3220A governs the inability of prisoners to pay certain fees. The
statute outlines a procedure whereby an indigent inmate may make an initial partial payment of
court fees and authorizes money to be deducted from the inmate’s prison account to be applied
toward the balance. The statute also contains a safety-valve provision, which provides that “in
no event shall a prisoner be prohibited from bringing an action for the reason that the prisoner
has no assets and no means by which to pay the initial partial filing fee.” I.C. § 31-3220A(7).
3
        Although not entirely clear from Appellant’s pro se briefs, we will construe his equal
protection challenge to the statute as a facial attack and not an as-applied challenge, in part
because Appellant did not follow the procedures contained within the statute in an attempt to be
granted partial waiver of cost.

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differently than indigent prisoners under Idaho’s statutory scheme for waiver of certain fees is a
question of first impression in Idaho.
       The United States Code contains a statutory scheme for proceeding in forma pauperis that
is substantially similar to the Idaho Code sections at issue in this case. Like the Idaho statutes,
the United States Code contains different requirements for indigent prisoners who are attempting
to proceed in forma pauperis than for indigent nonprisoners. Specifically, the first section of the
statute grants a complete waiver of fees for nonprisoners and the section applicable to prisoners
provides, in pertinent part:
                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. §§ 1915 (b)(1)-(4).
       The jurisdictions that have evaluated 28 U.S.C. § 1915 on constitutional grounds have
concluded that there is no equal protection violation despite the different treatment prisoners
receive as compared with nonprisoner indigents. See, e.g., Tucker v. Branker, 142 F.3d 1294,
1301 (D.C. Cir. 1998) (holding that “making the filing-fee provision of the PLRA applicable to
indigent prisoners but not to other indigent civil plaintiffs has a rational basis and does not
violate the equal protection component of due process”); Nicholas v. Tucker, 114 F.3d 17, 20 (2d
Cir. 1997) (holding that “the Act easily passes the rational basis test. The problem of frivolous
prisoner lawsuits has been well-documented and need not be repeated here. Suffice it to say that


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federal courts spend an inordinate amount of time on prisoner lawsuits, only a very small
percentage of which have any merit”); Mitchell v. Farcass, 112 F.3d 1483, 1488 (11th Cir. 1997)
(noting that, “unlike other prospective litigants who seek poor person status, prisoners have all
the necessities of life supplied . . . . 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”); Roller v. Gunn, 107 F.3d 227, 234 (4th Cir. 1997) (noting that “in sum, the equal
protection question is not a close one”); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997)
(concluding that “the fee requirements of the Prison Litigation Reform Act also do not violate a
prisoner’s right to equal protection”).
       The above-cited cases all apply a similar constitutional analysis that begins with the
proposition that prisoners are not a suspect class and that the federal statutory scheme does not
violate a prisoner’s fundamental right of access to the courts. Therefore, the Courts employed
rational basis review. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (holding that
“unless a classification trammels fundamental personal rights or is drawn upon inherently
suspect distinctions such as race, religion, or alienage, our decisions presume the
constitutionality of the statutory discriminations and require only that the classification
challenged be rationally related to a legitimate state interest”). The courts all noted that the
governmental interest behind 28 U.S.C. § 1915 was to curb the growing number of meritless
prisoner suits being filed. The Courts noted many rational reasons for treating prisoners and
nonprisoners differently, including:      prisoner lawsuits have been skyrocketing in number;
prisoner filings have become somewhat of a recreational activity for the prisoners; prisoners
have abundant free time and do not have to pay for life’s necessities; and, given the nature of
prisoner accounts, the post hoc installment payments are easier to administer for prisoners than
for the public at large. Therefore, the federal courts have unanimously concluded that there is no
equal protection violation based on the difference of treatment between prisoner and nonprisoner
indigents.
       Under Idaho’s statutory scheme, the treatment of indigent prisoners compared with
indigent nonprisoners is essentially the same as it is under the federal statutory framework.
Similarly, this Court has already noted the legislature’s intent in passing I.C. § 31-3220A to
reduce frivolous prisoner litigation:




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                After reviewing Section 31-3220A it is apparent that the intent of the
       legislature was to create a disincentive for the filing of frivolous claims by
       inmates and assuring financial accountability of prisoners. Section 31-3220A
       requires inmates to make decisions concerning the merits of their case and
       discourages them from filing frivolous lawsuits. Discouraging frivolous prisoner
       litigation and assuring prisoner financial accountability are legitimate concerns of
       the state and the classification is based on the state’s goal of reducing frivolous
       litigation.

Madison v. Craven, 141 Idaho 45, 48-49, 105 P.3d 705, 708-09 (Ct. App. 2005) (footnote
omitted). Given the relevant federal authority and the legitimate legislative intent behind the
different treatment of indigent prisoners verses indigent nonprisoners within the Idaho Code, we
conclude that Appellant’s equal protection claim fails.
                                                III.
                                         CONCLUSION
       The difference in treatment pursuant to I.C. §§ 31-3220 and 31-3220A between indigent
prisoners and indigent nonprisoners is justified by a legitimate legislative purpose. Therefore,
we conclude that Appellant’s claim that the statutory scheme at issue in this case violates a
prisoner’s right to equal protection of the laws fails. Neither costs nor fees are awarded to either
party, in part, because the Respondent did not participate in this appeal.
       Chief Judge LANSING and Judge GUTIERREZ, CONCUR.




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