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
to be ‘person possesses.’”).

                                        2
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

(1989) (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974); Bell
v. Hood, 327 U.S. 678, 682-83 (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 (“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

relief can be granted.       28 U.S.C. § 1915(e)(2)(B)(ii).2         While

     2
      Section 1915(e)(2) reads as follows:

Notwithstanding any filing fee, or any portion thereof, that 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

                                   3
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

U.S. at 330.
     Neitzke recognized that protection from sua sponte dismissal
for failure to state a claim is a meaningful right:


     (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).

                                       4
        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. The PLRA strips this right only from IFP litigants,

denying them equality of treatment in the federal courts.           See id.

at 330 (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
                                     5
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 (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 (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 (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

     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).

                                   6
excessive force in violation of the Eighth Amendment); Smith v.

Wade, 461 U.S. 30 (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 (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.
Congress has not provided a rational justification for denying
the courts this tool and differentiating between indigent and
nonindigent litigants.

                                 7
