Topaz Johnson V Hdsp
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOPAZ JOHNSON, No. 23-15299
Plaintiff-Appellant, D.C. No.
v. 2:22-cv-01235-
TLN-EFB
HIGH DESERT STATE PRISON;
SYLVA, Sergeant; BRIAN KIBLER,
Warden, ORDER
Defendants-Appellees.
IAN HENDERSON, No. 23-15396
Plaintiff-Appellant, D.C. No.
v. 2:22-cv-01235-
TLN-EFB
HIGH DESERT STATE PRISON;
SYLVA, Sergeant; BRIAN KIBLER,
Warden,
Defendants-Appellees.
Filed July 24, 2025
Before: Susan P. Graber, Consuelo M. Callahan, and
Lawrence VanDyke, Circuit Judges.
2 JOHNSON V. HIGH DESERT STATE PRISON
Order;
Statement by Judge W. Fletcher
SUMMARY *
Prison Litigation Reform Act
The panel denied a petition for panel rehearing and
denied a petition for rehearing en banc in a case in which the
panel held that the Prison Litigation Reform Act (“PLRA”)
does not prohibit prisoners from proceeding together in
lawsuits but does require that each prisoner in the lawsuit
pay the full amount of the filing fee.
Respecting the denial of rehearing en banc, Judge W.
Fletcher, joined by Judge Graber, wrote that the panel
majority in this case created a counterintuitive and atextual
exception to the uniform rule that in ordinary civil litigation,
including in class actions, when multiple plaintiffs join in a
single suit under Fed. R. Civ. P. 20, the filing fee is
$350. Under the panel majority’s holding, in PLRA
litigation, if multiple in forma pauperis prisoners join as
plaintiffs in a single suit under Rule 20, they each owe the
filing fee of $350. Because the plaintiffs are poor, they pay
more. Judge W. Fletcher strongly disagrees with this
reading of the PLRA. All tools of statutory interpretation—
plain meaning of the text, statutory coherence, congressional
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JOHNSON V. HIGH DESERT STATE PRISON 3
intent, Supreme Court authority, and practical reality—lead
to a different conclusion.
ORDER
Judge Callahan and Judge VanDyke voted to deny the
petition for panel rehearing and rehearing en banc. Judge
Graber voted to grant the petition for panel rehearing and
recommended granting the petition for rehearing en banc.
The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 40. Judge Koh did not
participate in the deliberations or vote in this case.
The petition for panel rehearing and rehearing en banc is
DENIED. Dkt. 56.
W. FLETCHER, J., joined by GRABER, J., respecting the
denial of rehearing en banc:
In this Prison Litigation Reform Act (“PLRA”) case, the
panel majority held that when multiple in forma pauperis
(“IFP”) prisoner-plaintiffs join under Rule 20 in a single suit,
each plaintiff must pay a filing fee of $350. Johnson v. High
Desert State Prison, 127 F.4th 123, 128–134 (9th Cir. 2025).
Judge Graber dissented. Id. at 137. I called this case en banc
to challenge the panel’s holding. I respectfully disagree with
my colleagues’ decision not to grant rehearing en banc.
4 JOHNSON V. HIGH DESERT STATE PRISON
In ordinary civil litigation when multiple plaintiffs join
in a single suit under Rule 20, the filing fee is $350. When
plaintiffs file a class action, the fee is $350. In PLRA
litigation, when multiple prisoner-plaintiffs join in a single
suit under Rule 20 and can afford to pay the entire filing fee
up front, the fee is $350.
The panel majority in this case has created a
counterintuitive and atextual exception to this uniform rule.
Under the panel majority’s holding, if IFP prisoners join as
plaintiffs in a single suit under Rule 20, they each owe the
filing fee of $350. If there are three plaintiffs, the filing fee
for their single Rule 20 suit is $1,050. If there are ten
plaintiffs, the fee is $3,500. And so on. In short, because
the plaintiffs are poor, they pay more.
I strongly disagree with this reading of the PLRA. All
tools of statutory interpretation—plain meaning of the text,
statutory coherence, congressional intent, Supreme Court
authority, and practical reality—lead to a different
conclusion.
A. Plain Meaning of the Text
The controlling statutory language is contained in 28
U.S.C. §§ 1914(a) and 1915(b).
Here is the general filing fee requirement for civil suits
in district court:
§ 1914. District court; filing . . . fees
The clerk of each district court shall
require the parties instituting any civil
JOHNSON V. HIGH DESERT STATE PRISON 5
action, suit or proceeding in such
court . . . to pay a filing fee of $350[.]
28 U.S.C. § 1914(a) (emphasis added). Section 1914(a)
tells us that a single filing fee of $350 is required for a civil
suit in district court, regardless of the number of plaintiffs:
“[T]he parties” are required “to pay a filing fee of $350.”
Section 1914(a) does not distinguish civil suits brought by
IFP prisoners from other civil suits. That is, § 1914(a)
covers, without differentiation, “any civil action, suit, or
proceeding” in district court.
Here is the full text the filing fee portion of the PLRA.
It is applicable to IFP prisoner-plaintiffs who bring
individual suits:
§ 1915. Proceedings in forma pauperis
(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
6 JOHNSON V. HIGH DESERT STATE PRISON
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) (emphases added).
Please note two things. First, § 1915(b) addresses only
suits brought by single IFP prisoner-plaintiffs. The usage
throughout § 1915(b) is singular—“a prisoner” and “the
prisoner.” Section 1915(b) says nothing about suits brought
by multiple IFP prisoner-plaintiffs. Second, § 1915(b)(3)
specifies that “in no event shall the filing fee collected
exceed the amount of fees permitted by statute for the
commencement of a civil action.” Section § 1914(a)
specifies that the filing fee “permitted by statute” is $350.
The natural combined reading of §§ 1914(a) and 1915(b)
is that when multiple IFP prisoner-plaintiffs join in a single
civil action under the PLRA, the total filing fee is $350. The
JOHNSON V. HIGH DESERT STATE PRISON 7
panel majority has rejected this natural reading of §§ 1914(a)
and 1915(b) in favor of an exceedingly unnatural reading.
B. Statutory Coherence
Section 1915(f)(2), the provision governing the payment
of costs paid by IFP prisoner-plaintiffs, contains text parallel
to that found in § 1915(b). Section 1915(f)(2) reads as
follows:
(A) If the judgment against a prisoner
includes the payment of costs under this
subsection, the prisoner shall be required
to pay the full amount of the costs
ordered.
(B) The prisoner shall be required to make
payments for costs under this subsection
in the same manner as is provided for
filing fees under subsection [(b)(2)]. 1
(C) In no event shall the costs collected
exceed the amount of the costs ordered by
the court.
Applying the panel majority’s interpretation of
§ 1915(b) to the text of this nearly identical provision would
yield an absurd result. According to the panel majority’s
interpretation, when costs are awarded against multiple IFP
prisoner-plaintiffs who have joined under Rule 20, each
1
As presently codified, § 1915(f)(2)(B) contains a typographical error.
It refers to the manner of making payments “as is provided for filing fees
under subsection (a)(2).” That provision is (b)(2) rather than (a)(2). See
Draper v. Rosario, 836 F.3d 1072, 1087 n.10 (9th Cir. 2016); see also
Talley-Bey v. Knebl, 168 F.3d 884, 887 (6th Cir. 1999) (same). The
alteration corrects that error.
8 JOHNSON V. HIGH DESERT STATE PRISON
prisoner-plaintiff would be responsible for paying the full
“amount of the costs ordered by the court.” The defendant
in such a suit would then recover multiple times the costs he
actually incurred solely by virtue of there being multiple
plaintiffs. This bizarre result would be reserved only for
cases in which the plaintiffs are prisoners proceeding IFP.
C. Congressional Intent
Legislative history further contradicts the panel
majority’s decision. Senator Bob Dole and Senator Jon Kyl
were cosponsors of the PLRA.
Senator Dole addressed the filing fee requirement:
Many prisoners filing lawsuits today in
Federal court claim indigent status. As
indigents, prisoners are generally not
required to pay the fees that normally
accompany the filing of a lawsuit. In other
words, there is no economic disincentive to
going to court.
The Prison Litigation Reform Act would
change this by establishing a garnishment
procedure: If a prisoner is unable to fully pay
court fees and other costs at the time of filing
a lawsuit, 20 percent of the funds in his trust
account would be garnished for this
purpose. . . .
When average law-abiding citizens file a
lawsuit, they recognize that there could be an
economic downside to going to court.
Convicted criminals should not get
preferential treatment. If a law-abiding
JOHNSON V. HIGH DESERT STATE PRISON 9
citizen has to pay the costs associated with a
lawsuit, so too should a convicted criminal.
Congressional Record–Senate, S14413 (Sept. 27, 1995). In
describing the garnishment procedure established under
what became § 1915(b), Senator Dole did not mention any
possibility that the normal filing fee assessment would be
changed for IFP prisoner-plaintiffs suing jointly under Rule
20. He compared suits by prisoner-plaintiffs to suits by
“average law-abiding citizens” and said that prisoners
should not get “preferential treatment.” He did not say that
prisoner-plaintiffs should get worse treatment.
Senator Kyl also addressed the filing fee requirement:
Section 2 of the bill covers proceedings in
forma pauperis. It adds a new section to 28
U.S.C. section 1915. The subsection
provides that whenever a Federal, State or
local prisoner seeks to commence an action
or proceeding in Federal court as a poor
person, the prisoner must pay a partial filing
fee of 20 percent of the larger of the average
monthly balance in, or the average monthly
deposits to, his inmate account. The fee may
not exceed the full statutory fee.
Congressional Record–Senate, S 14413 (September 27,
1995). Senator Kyl specifically mentioned the “full
statutory fee” and said that the fee charged to a prisoner-
plaintiff may not exceed that fee.
D. Supreme Court Authority
There is no Supreme Court case directly on point. But
Jones v. Bock, 549 U.S. 199 (2007), comes very close. The
10 JOHNSON V. HIGH DESERT STATE PRISON
Court tells us in Jones that we should read the PLRA against
the background of existing procedural rules, and that we
should follow those rules unless the PLRA specifically
instructs otherwise.
In Jones, the Supreme Court reviewed an interpretation
of the PLRA under which prisoner-plaintiffs were required
to comply with three procedural requirements not clearly
specified in the PLRA. The Sixth Circuit had held (1) that
prisoner-plaintiffs must plead administrative exhaustion in
their complaint rather than requiring defendants to raise
exhaustion as an affirmative defense in their answer; (2) that
prisoner-plaintiffs must identify in their administrative
complaints filed in the prison all of the defendants that they
would later sue; and (3) that prisoner-plaintiffs must plead in
their complaint only claims that have been exhausted, on
pain of having their entire complaint (including their
exhausted claims) dismissed. The Court disagreed with the
Sixth Circuit.
In rejecting the first requirement—that prisoners must
plead exhaustion—the Court wrote that if Congress had
intended in the PLRA to deviate from the usual pleading
rule, it would have said so: “[W]hen Congress meant to
depart from the usual procedural requirements, it did so
expressly.” Id. at 216. In rejecting the second
requirement—that all of the defendants sued under the
PLRA must have been identified in a prisoner’s
administrative complaint—the Court wrote, “Nor does the
PLRA impose such a requirement.” Id. at 218. Finally, in
rejecting the third requirement—that a prisoner-plaintiff’s
complaint contain only administratively exhausted claims—
the Court relied on the fact that in enacting the PLRA,
Congress did not indicate that it intended to deviate from the
normal non-habeas pleading rule. The Court wrote, “If
JOHNSON V. HIGH DESERT STATE PRISON 11
Congress meant to depart from this norm, we would expect
some indication of that, and we find none.” Id. at 221
(quoting Robinson v. Page, 170 F.3d 747, 748–49 (7th Cir.
1999)).
In three different ways, the Court in Jones tells us that
the panel majority in this case was wrong to go beyond the
express text of the PLRA. If Congress had intended in a
subset of PLRA cases to deviate from the normal
requirement of a single $350 filing fee, it would have
“d[one] so expressly.” Id. The express text of the PLRA
does not “impose such a requirement.” Id. at 218. “If
Congress meant to depart from this norm [of a single $350
filing fee], we would expect some indication of that[.]” Id.
at 221.
The Court tells us in Jones that when the PRLA is
“silent” on an issue, this is “strong evidence that the usual
practice should be followed.” Id. at 212. The PLRA is silent
on the issue whether multiple IFP prisoner-plaintiffs joined
under Rule 20 should each pay a filing fee of $350. The
panel majority should have followed the “usual practice”—
indeed, the uniform practice—of charging a single filing fee
of $350.
E. Practical Reality
Assessing a single filing fee in a Rule 20 suit filed by
multiple IFP prisoner-plaintiffs makes practical sense.
Assessing a single filing fee provides an incentive for IFP
prisoner-plaintiffs with a common issue to join in a single
suit. The rule adopted by the panel majority foregoes that
incentive, encouraging multiple suits by multiple plaintiffs
when a single suit would be more efficient, for both the
plaintiffs and the judiciary.
12 JOHNSON V. HIGH DESERT STATE PRISON
The issue presented in this case may seem esoteric, but
it is not. The federal docket is replete with cases filed by
prisoners seeking relief from unconstitutional practices and
conditions. 2 Almost all of these prisoners are poor. Most
prisoners enter prison without any reported earnings in the
previous year. Most of those who do have reported income
have earned very little. 3 Once incarcerated, they work for
very low wages. In California, for example, federal prisons
pay $0.08 to $0.37 per hour for their prisoners’ labor. 4 To
put that in perspective, even some of the highest earning
prisoners in California would have to work close to a
thousand hours to make the $350 needed to file a single civil
action. And that assumes that all of the money is being
saved, rather than used to pay for the cost of their detention, 5
2
Federal Judicial Caseload Statistics 2024, U.S. Cts.,
https://www.uscourts.gov/data-news/reports/statistical-reports/federal-
judicial-caseload-statistics/federal-judicial-caseload-statistics-2024-
tables.
3
Adam Looney & Nicholas Turner, Work and Opportunity Before and
After Incarceration, Brookings Inst., 1–2 (Mar. 2018),
https://www.brookings.edu/wp-
content/uploads/2018/03/es_20180314_looneyincarceration_final.pdf;
see also Bernadette Rabuy & Daniel Kopf, Prisons of Poverty:
Uncovering the Pre-Incarceration Incomes of the Imprisoned, Prison
Pol’y Initiative (July 9, 2025),
https://www.prisonpolicy.org/reports/income.html.
4
Captive Labor: Exploitation of Incarcerated Workers, ACLU & The
Univ. of Chi. Law Sch. Global Hum. Rts. Clinic, 57–58 (Jun. 15, 2022),
https://www.aclu.org/publications/captive-labor-exploitation-
incarcerated-workers.
5
See Lauren-Brooke Eisen, America’s Dystopian Incarceration System
of Pay to Stay Behind Bars, Brennan Ctr. for Just. (Apr. 19, 2023),
https://www.brennancenter.org/our-work/analysis-opinion/americas-
dystopian-incarceration-system-pay-stay-behind-bars (noting that
JOHNSON V. HIGH DESERT STATE PRISON 13
food, 6 medical copays, 7 or communications with family. 8
Given this economic reality, a requirement that each indigent
prisoner in a multiple-plaintiff Rule 20 case pay a $350 filing
fee makes no sense.
prisons charge inmates for room and board); Is Charging Inmates to Stay
in Prison Smart Policy?, Brennan Ctr. for Just. (Sept. 9, 2019),
https://www.brennancenter.org/our-work/research-reports/charging-
inmates-stay-prison-smart-policy (same).
6
See Cheap Jail and Prison Food Is Making People Sick. It Doesn’t
Have To, Vera (Feb. 27, 2024), https://www.vera.org/news/cheap-jail-
and-prison-food-is-making-people-sick-it-doesnt-have-to (noting the
gouging practices of commissaries, resulting in three out of five formerly
incarcerated people reporting as being unable to afford anything from the
commissary).
7
Tiana Herring, COVID Looks Like It May Stay. That Means Prison
Medical Copays Must Go., Prison Pol’y Initiative (Feb. 1, 2022),
https://www.prisonpolicy.org/blog/2022/02/01/pandemic_copays
(noting 40 states and the federal prison system require medical copays
for prisoners).
8
See Nicole Loonstyn & Alice Galley, Low-Cost Phone Calls Benefit
Incarcerated People, Their Families, and Criminal Legal Institutions,
Urb. Inst. (Aug. 30, 2023), https://www.urban.org/urban-wire/low-cost-
phone-calls-benefit-incarcerated-people-their-families-and-criminal-
legal (noting that phone calls in jails and prisons cost $50 to $100 a
month); Stephen Raher, Please Mr. Postman: It’s Time to Create a
Special Postal Mail Rate for Incarcerated People, Prison Pol’y Initiative
(Aug. 17, 2022),
https://www.prisonpolicy.org/blog/2022/08/17/postalrates-2 (noting
that “for someone in prison, it could take six hours of work to pay for
one postage stamp – and that cost is about to go up even higher”); Nazish
Dholakia, The FCC Is Capping Outrageous Prison Phone Rates, but
Companies Are Still Price Gouging, Vera (Sept. 4, 2024),
https://www.vera.org/news/the-fcc-is-capping-outrageous-prison-
phone-rates-but-companies-are-still-price-gouging (documenting the
price gouging practices of e-messaging services in prison).
14 JOHNSON V. HIGH DESERT STATE PRISON
F. Varying Views in the Circuits
The Sixth Circuit analyzed the then-new PLRA in In re
Prison Litigation Reform Act, 105 F.3d 1121 (6th Cir. 1997).
It pointed out the obvious: “The statute does not specify how
fees are to be assessed when multiple prisoners constitute the
plaintiffs[.]” Id. at 1137. Given the failure of the PLRA to
deal with multiple-prisoner suits, the Sixth Circuit
concluded that the ordinary filing fee rule under § 1914(a)
should be followed, with the result that “any fees and costs
that the district court . . . may impose shall be equally divided
among all the prisoners.” Id. at 1138; see also Talley-Bey v.
Knebl, 168 F.3d 884, 887 (6th Cir. 1999) (“Thus, any fees
and costs that a district court or that we may impose must be
equally divided among all the participating prisoners.”).
Three circuits have gone the other way. See Hubbard v.
Haley, 262 F.3d 1194 (11th Cir. 2001); Boribourne v. Berge,
391 F.3d 852 (7th Cir. 2004); and Hagan v. Rogers, 570 F.3d
146 (3d Cir. 2009). All three circuits relied on § 1915(b).
They concluded that § 1915(b) applies to IFP suits brought
by multiple prisoner-plaintiffs, despite the fact that the text
of § 1915(b) consistently refers only to IFP suits brought by
single prisoner-plaintiffs.
***
I write the above in the hope the Supreme Court will
grant certiorari.