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Court Can't Impose Impossible Bond Requirement on Indigent Inmate

By Robyn Hagan Cain | Last updated on

In times of tightened belts, courts have to find creative ways of operating as lean, mean, judicial machines.

This week, the Seventh Circuit Court of Appeals directed its appellate spotlight on one such court, which required a litigious inmate to post a $1,000 bond to cover the defendants' costs if his lawsuit proved unsuccessful. According to the Seventh Circuit, that's not cool.

The Seventh Circuit described plaintiff Anthony Gay as a "deeply disturbed Illinois inmate with a long history of self-mutilation."

Between October 1996 and January 2011, Gay filed more than 30 civil cases in federal district courts. He lost two at trial, settled two more, and lost or withdrew the remainder. At least four were dismissed as frivolous, leading Gay to strike out under the Prison Litigation Reform Act. At this point, he can no longer file in forma pauperis in federal court unless he is "under imminent danger of serious physical injury."

Having struck out under the PLRA, Gay continues to litigate in two ways. One method, which he used in this case, is to start his suit in state court, where the three strikes limit of the federal PLRA does not apply. After Gay filed this case in state court, the defendants removed it to federal court. Gay's other litigation method is to invoke the imminent danger exception to the PLRA.

In the claim at the center of this appeal, Gay sued three mental health professionals at the prison alleging constitutionally-inadequate treatment and retaliation for a prior lawsuit. At the defendants' request -- and without evaluating the merits of his claims -- the district court required Gay to post a $1,000 bond to cover the defendants' costs if this suit proved unsuccessful. When Gay failed to post the bond, which the court knew he could not afford, the court dismissed the case with prejudice.

The Seventh Circuit reversed and remanded the dismissal, and somewhat scolded the district court in the process. In a per curiam opinion, the judges noted, "District courts have several tools for dealing with indigent litigants who abuse the court system. Requiring a party to post a cost bond that the court knows the party cannot afford, however, is not one of those available tools for dismissing or discouraging frivolous suits."

The parties agreed that Gay could not post a $1,000 bond, so the bond requirement shut the door on Gay's claim instead of ensuring that the defendants would recoup their costs if they prevailed. The Seventh Circuit concluded that the bond requirement therefore was an abuse of discretion, as was the dismissal order for failure to pay.

The Seventh Circuit highlighted bond requirement alternatives like monetary sanctions for vexatious litigation, and verified pleading requirements enforced through penalty perjuries. Would these alternatives work for an indigent inmate who still has 83 years before he's eligible for parole?

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