Judge Abused Discretion with Unattainable Bond

CHICAGO (CN) - A federal judge cannot require a litigant with a history of frivolous suits to post a bond it knows he or she cannot pay, the 7th Circuit ruled, allowing an Illinois inmate to continue with claims against three prison officials.

"Anthony Gay is a deeply disturbed Illinois inmate with a long history of self-mutilation," the appeals court's opinion began, "He has filed many unsuccessful lawsuits against prison staff and others."

Gay, who is incarcerated in the Tamms Correctional Center in southern Illinois, will be eligible for parole in 2095. He has filed over 30 civil cases against prison officials. So far, Gay has lost two cases at trial, settled two more, and lost or withdrawn the remainder.

Four were dismissed as frivolous, causing Gay to "strike out" under the Prison Litigation Reform Act. Gay can no longer proceed in forma pauperis in federal court unless he is "under imminent danger of serious physical injury."

Gay has repeatedly managed to dodge the requirement by filing claims in state court or alleging imminent danger, however.

In the instant case, Gay alleged that a prison psychiatrist had increased his dosage of anti-anxiety medication without telling him to retaliate for one of his previous lawsuits. He also accused another psychiatrist and social worker of failing to provide adequate medical treatment despite knowing of his history of self-mutilation.

The defendants removed the case to federal court and asked U.S. District Judge G. Patrick Murphy to require Gay to post a $1,000 bond to cover their costs if the case was unsuccessful. They argued that Gay had failed to pay more than $2,100 in costs assessed after one of his prior suits and that his history of frivolous litigation made it likely that they would be awarded costs at the end of this case.

Murphy obliged and later dismissed the suit with prejudice when Gay was unable to pay.

"To justify the bond, [Murphy] emphasized Gay's undeniable status as a 'notorious pro se filer' and concluded that his failure to pay costs taxed from the previous suit demonstrated that he 'has no concept of financial responsibility at all,'" the 7th Circuit wrote.

Murphy declined to address the merits of the case, which, the appeals court noted, could possibly have met the imminent-danger exception. He also failed to address Gay's indigent status when issuing the order.

The 7th Circuit sided with Gay, ruling that Murphy had abused his discretion by requiring the unattainable bond.

"A court abuses its discretion when it requires a cost bond that it knows the party cannot afford," the opinion stated.

"A cost bond is not a sanction. It is meant 'to insure that whatever assets a party does possess will not have been dissipated or otherwise have become unreachable by the time such costs actually are awarded.'"

The judges cited the First Circuit, which "instructs courts to weigh (1) the merits of the case, (2) the prejudice to the defendant of not requiring a bond, and (3) the prejudice to the plaintiff of requiring a bond." The 2nd and 9th Circuits have also reached similar conclusions.

"The bond requirement thus did nothing to ensure that the defendants would recoup their costs if they prevailed. All it ensured was the end of Gay's suit. The bond requirement therefore was an abuse of discretion, as was the dismissal order for failure to pay."

The court went on to identify the other tools available to the court for dealing with frivolous litigants, including screening complaints, monetary sanctioning, and requiring verified pleadings which can result in perjury for false assertions.

"As a last resort, when the litigant refuses to pay outstanding fees imposed for abusing the judicial process, either we or a district court can institute a filing bar as a sanction to prevent a plaintiff from brining future suits until he pays the outstanding fines," the judges noted.

The opinion left it up to the district court to decide whether a bar on future suits would be appropriate given Gay's litigation history, but noted that any sanctions must be prospective.

In the meantime, Gay will be able to continue his current suit against the three prison officials.

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