Anthony Gay v. Rakesh Chandra, et al

Filing

Filed opinion of the court PER CURIAM. The judgment of dismissal is REVERSED, and the case is REMANDED for further proceedings consistent with the opinion. William J. Bauer, Circuit Judge; Michael S. Kanne, Circuit Judge and David F. Hamilton, Circuit Judge. [6401584-3] [6401584] [11-2523]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 11-2523
A NTHONY G AY,
Plaintiff-Appellant,
v.
R AKESH C HANDRA, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 10-336-GPM—G. Patrick Murphy, Judge.

A RGUED A PRIL 24, 2012—D ECIDED M AY 30, 2012

Before B AUER, K ANNE, and H AMILTON, Circuit Judges.
P ER C URIAM. Anthony Gay is a deeply disturbed
Illinois inmate with a long history of self-mutilation. He
has filed many unsuccessful lawsuits against prison staff
and others. He is currently scheduled to be paroled in
the distant year of 2095. In this lawsuit, Gay sued three
mental health professionals at the prison alleging constitutionally inadequate treatment and retaliation for
a prior lawsuit. The district court required him to post

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a $1,000 bond — which it knew he could not afford — to
cover the defendants’ costs if this suit proved unsuccessful. The court required the cost bond without evaluating the merit or lack of merit of Gay’s claims in this
case. When Gay did not post the bond he could not
afford, the court dismissed the case with prejudice. We
reverse and remand. 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.

I. Factual and Procedural Background
Gay is an inmate at Tamms Correctional Center in
southern Illinois and has a lengthy history of unsuccessful
civil rights litigation. Between October 1996 and January
2011, he filed more than 30 civil cases in federal district
courts. Gay 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. 28 U.S.C. § 1915(g). Unless he
is “under imminent danger of serious physical injury,”
Gay may no longer proceed in forma pauperis in federal
court. Id.
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 threestrikes limit of the federal PLRA does not apply. In this
suit, Gay alleges that Dr. Rakesh Chandra, a psychiatrist

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at the prison, increased his dosage of anti-anxiety medication without telling him, and did so to retaliate
against him for having sued Dr. Chandra in
another case. In the earlier case, Gay had charged that
Dr. Chandra was deliberately indifferent to his mental
illness, allowing Gay to mutilate himself. Gay also contends in his current suit that Dr. Chandra retaliated
further by discontinuing his anti-anxiety medication
when he learned that Gay had notified the judge
presiding over the earlier case of Dr. Chandra’s convictions for fraud and obstruction of justice. (Dr. Chandra
has since prevailed in a jury trial in Gay’s earlier case;
evidence of his convictions was excluded). Finally,
in the current suit, Gay also accuses another prison psychiatrist, Dr. Claudia Kachigian, and a social worker,
Katherine Clover, of failing to provide adequate mental-health treatment despite knowing that he has a
history of self-mutilation. After Gay filed this case in
state court, the defendants removed it to federal court.1

1

Gay’s other litigation method is to invoke the imminentdanger exception to the PLRA. Twice we have remanded cases
that district courts had dismissed because Gay had struck out
and did not pay the filing fee; we ordered the district courts
to determine whether Gay had satisfied this exception.
Gay v. Blackman, No. 11-1864, ECF Dkt. No. 10 (7th
Cir. July 15, 2011); Gay v. Powers, No. 11-1400, ECF Dkt. No. 9
(7th Cir. Apr. 15, 2011). In Powers, the district court then concluded that Gay had not satisfied the exception. No. 11-1400,
ECF Dkt. No. 11 (7th Cir. Feb. 23, 2012). In Blackman,
the district court has yet to rule. See Gay v. Blackman,
(continued...)

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After the removal, Judge Reagan screened the complaint. See 28 U.S.C. § 1915A. He dismissed several counts
as not sufficiently related to the claims against Dr.
Chandra, Dr. Kachigian, and Clover, but allowed the
claims against the three of them to proceed. Judge Reagan
then transferred the case to Judge Murphy, who
recruited an attorney for Gay.
Following these preliminaries, the defendants moved
to require Gay to post a bond of $1,000 to cover the
costs they could recover under Federal Rule of Civil
Procedure 54(d) if they prevailed in the suit. They noted
that Gay had failed to pay more than $2,100 in costs
assessed after his prior suit against Dr. Chandra, and
they argued that his long history of failed litigation
made it likely that the district court would award them
costs at the end of his new case. The defendants acknowledged Gay’s indigence but contended that the court

1

(...continued)
No. 11-14-GPM, ECF Dkt. No. 70 (S.D. Ill. Feb. 2, 2012). In both
Powers and Blackman, the district courts also ordered Gay to
show cause why they should not bar him from further filings in
their court because of unpaid filing fees. See Support Systems
Int’l, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995) (imposing such a
bar where prior sanctions had gone unpaid). But neither court
has actually imposed a filing bar. In Blackman, the court
barred him only from alleging self-mutilation to circumvent
the PLRA, see No. 11-14-GPM, ECF Dkt. No. 33 (S.D. Ill.
May 11, 2011), and in Powers, the court has not ruled on
whether to impose any bar, see No. 11-20-GPM, ECF Dkt. No. 19
(S.D. Ill. Mar 1, 2011).

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should nonetheless impose a bond to “send a message”
to Gay that he needed to “exercise discretion and
judgment in his litigious activity, accepting the consequences of his costly lawsuits.” They asked the court to
dismiss the suit without prejudice if Gay failed to pay.
Gay opposed the defendants’ motion, asserting that his
claims could not be frivolous if they survived screening
under § 1915A and arguing that he would be denied
access to the court if forced to post a $1,000 bond that
he could not afford.
The district court granted the motion and ordered Gay
to post a $1,000 bond. The court relied on its inherent
power to order a bond to secure the payment of future
costs, explaining that its authority to award costs
implies a power to require a bond. To justify the bond,
it 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 court
did not discuss Gay’s indigence. Nor did the court assess
the possible merits of the case, other than (properly) to
reject Gay’s argument that, because his claims had survived screening under § 1915A, they could not have
been frivolous. Gay moved for reconsideration of the
order, this time including an affidavit attesting to
his indigence and an inmate trust-fund statement corroborating his claim of poverty. The court denied the
motion, again making no mention of Gay’s indigence
but emphasizing that it had “no opinion whatever
about the merits of Gay’s claims in this case and in fact
knows virtually nothing about them at this early stage

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of these proceedings.” When Gay failed to post the bond
as ordered, the court dismissed the case with prejudice
under Federal Rule of Civil Procedure 41(b) for failing
to comply with a court order.

II. Propriety of the Bond Order
On appeal Gay contends that the district court abused
its discretion by requiring him to post a cost bond that
it knew he could not afford. He argues that the bond
requirement effectively blocked his access to the courts,
a result he asserts is contrary to basic principles of due
process. The defendants respond that dismissing a case
because the plaintiff failed to post security for costs in
the case is no different from barring filings by a plaintiff
as a sanction for failing to pay sanctions or court fees
in past cases.
We agree with Gay that requiring a plaintiff to post a
bond to secure costs in a pending suit is different from
sanctioning a litigant for failing to pay costs or sanctions
from past suits. As we explain below, before requiring
a bond to cover costs under Rule 54(d), a court must
consider a party’s ability to pay. A court abuses its discretion when it requires a cost bond that it knows the
party cannot afford. By contrast, courts can bar future
suits as a sanction to punish a refusal to pay past court
costs and sanctions even if the litigant is indigent. The
district court here did not impose a filing bar as a
sanction against Gay but invoked only its power to
order a bond for costs. The court erred when it ordered
Gay to post a bond it knew he could not afford.

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The district court correctly reasoned that its authority
to award costs to a prevailing party implies a power to
require the posting of a bond reasonably calculated
to cover those costs, even though no statute or rule expressly authorizes such an order. See Anderson v.
Steers, Sullivan, McNamar & Rogers, 998 F.2d 495, 496
(7th Cir. 1993) (affirming dismissal); Pedraza v. United
Guaranty Corp., 313 F.3d 1323, 1335-36 (11th Cir. 2002)
(recognizing inherent authority but vacating order not
supported by necessary findings); Simulnet East Assocs. v.
Ramada Hotel Operating Co., 37 F.3d 573, 574 (9th Cir.
1994) (same); Ehm v. Amtrak Board of Directors, 780 F.2d
516, 517 (5th Cir. 1986) (affirming dismissal). A court
may require a bond where “there is reason to believe
that the prevailing party will find it difficult to collect
its costs” when the litigation ends. Anderson, 998 F.2d
at 496.
Relying on Anderson, the defendants contend that
Gay’s poverty makes it likely that they will be unable to
collect their costs at the end of the litigation and therefore justifies the bond requirement in this case. But the
defendants’ interpretation of Anderson would unmoor
the bond requirement from its underlying purpose. 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.” Selletti v.
Carey, 173 F.3d 104, 112 (2d Cir. 1999) (emphasis in original); see also In re Merrill Lynch Relocation Mgmt., Inc.,
812 F.2d 1116, 1123 (9th Cir. 1987) (rejecting constitutional challenge to rule allowing court to require non-

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resident parties to post cost bonds). This understanding
of cost bonds has deep historical roots. The practice of
requiring such bonds developed to help resident defendants collect costs when victorious against non-resident
plaintiffs whose property was beyond the reach of the
court. See John A. Gliedman, Access to Federal Courts
and Security for Costs and Fees, 74 St. John’s L. Rev. 953, 95859 (2000). The practice was imported from English courts,
which did not require that an impoverished party post
security. Id. at 958.
We have never addressed directly whether a court
must consider a party’s current ability to afford a bond
before requiring one as a condition of prosecuting a
lawsuit, but the weight of authority from other circuits
supports Gay’s argument that a court may not ignore
an indigent litigant’s inability to pay. The First Circuit
concluded that a district court abuses its discretion
when it does not consider a plaintiff’s financial situation
before imposing a cost bond. Murphy v. Ginorio, 989 F.2d
566, 568-69 (1st Cir. 1993); Aggarwal v. Ponce School of
Medicine, 745 F.2d 723, 727-28 (1st Cir. 1984). To do otherwise, the court explained, “comes dangerously close
to making judicial access a privilege for only the most
financially secure.” Murphy, 989 F.2d at 569. The First
Circuit 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. Aggarwal, 745 F.2d at 727-28.
The Ninth Circuit has cited the Aggarwal factors with
approval and has cautioned that in imposing a bond, “care

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must be taken not to deprive a plaintiff of access to the
federal courts.” Simulnet East Assocs., 37 F.3d at 575-76.
When a court requires a bond it knows a plaintiff
cannot pay, the Ninth Circuit reasoned, it is essentially
granting judgment to the defendant without allowing
the judicial process to run its normal course. Id. at 576.
And the Second Circuit has also implied that a
plaintiff’s ability to pay should factor into a court’s decision whether to impose a bond. See Selletti, 173 F.3d
at 111 n.9 (finding no abuse of discretion in imposing
bond on plaintiff who did not argue that amount of
bond “would effectively preclude compliance”). We
agree with the reasoning of these courts, which is not
inconsistent with our decision in Anderson, where we
affirmed dismissal where the plaintiff had made no
effort to show that he could not afford to post the
required bond. 998 F.2d at 496.
The parties here agree that Gay is indigent and could
not post a $1,000 bond. 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.2

2

Even if the bond order itself had not been an abuse of discretion, the dismissal order would still have been improper because
the court did not consider Gay’s financial situation before
dismissing with prejudice. Dismissal under Rule 41(b) is
appropriate only when “there is a clear record of delay or
contumacious conduct” or when less severe sanctions will

(continued...)

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III. Other Tools for Addressing Frivolous Litigation
Although Gay’s filings in the district court far outnumber his appeals, we understand well the district court’s
and defendants’ frustration with Gay’s pattern of unsuccessful litigation. We share the district court’s concern
over the financial burden that Gay’s long string of suits
has placed on the defendants, and groundless litigation makes the courts less accessible to other parties
with more substantive claims and defenses. Federal
courts have a number of means to control vexatious
litigation without resorting to impossible bond require-

(...continued)
not suffice. Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir. 2003),
quoting Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th
Cir. 1998). And while inability to pay a fee imposed in a
pending suit is not an “automatic defense” to dismissal for
failing to pay it, Williams v. Adams, 660 F.3d 263, 266 (7th Cir.
2011), a court abuses its discretion when, as here, it fails even
to consider a party’s lack of resources before ordering
dismissal, see id. at 265-66; English v. Cowell, 969 F.2d 465, 473
(7th Cir. 1992); Selletti, 173 F.3d at 111; Moon v. Newsome, 863
F.2d 835, 838 (11th Cir. 1989); Hornbuckle v. Arco Oil & Gas
Co., 732 F.2d 1233, 1237 (5th Cir. 1984); Thomas v. Gerber Prods.,
703 F.2d 353, 356-57 (9th Cir. 1983).
In addition, a court must also consider the probable merits
of the case before dismissing a suit based on a plaintiff’s
failure to pay a fee. If the suit has likely merit, then the value
of the suit itself may reduce the need to insist on a separate
payment from the plaintiff. See Williams, 660 F.3d at 266. But
by its own account, the district court here never assessed the
merits of Gay’s claims.

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ments. Some of these means have controlled Gay
before but were not available or were not used here.
The screening process allows a judge to dismiss,
before service on the defendants, a complaint that
is frivolous, malicious, or fails to state a claim. 28 U.S.C.
§§ 1915(e)(2)(B), 1915A(a), (b)(1); see Hoskins v. Poelstra,
320 F.3d 761, 763 (7th Cir. 2003); Rowe v. Shake, 196 F.3d
778, 781, 783 (7th Cir. 1999). As has already happened
with Gay, a litigant who “strikes out” under the PLRA
with three frivolous cases or appeals can be denied
the privilege of proceeding without prepaying fees.
See 28 U.S.C. § 1915(g). Five of Gay’s federal suits
have been dismissed for this reason.3
The PLRA’s three-strikes obstacle does not apply in
state courts, where Gay filed this suit. Nevertheless,
district courts also can impose both monetary and nonmonetary sanctions under Rule 11 for filing or maintaining claims for an improper purpose or without adequate legal or factual support. Fed. R. Civ. P. 11(b), (c);
see Fabriko Acquistion Corp. v. Prokos, 536 F.3d 605, 609-10
(7th Cir. 2008). A court also can require the submission
of verified pleadings, placing the party under penalty
of perjury for his assertions. See In re Tyler, 839 F.2d

3

See Gay v. Clover, No. 3:09-cv-00925-JPG-PMF, ECF Dkt. No. 61
(S.D. Ill. Oct. 4, 2011); Gay v. Blackman, No. 11-cv-014-JPG, ECF
Dkt. No. 15 (S.D. Ill. Mar. 8, 2011); Gay v. Powers, No.
11-20-GPM, ECF Dkt. No. 8 (S.D. Ill. Feb. 5, 2011); Gay v. Wagoner, No. 10-cv-128-JPG, ECF Dkt. No. 4 (S.D. Ill. July 13,
2010); Gay v. Williams, No. 09-cv-1051-MJR, ECF Dkt. No. 4
(S.D. Ill. June 11, 2010).

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1290, 1294 (8th Cir. 1988); Green v. White, 616 F.2d 1054,
1056 (8th Cir. 1980). We recognize, though, that these
options may have little effect on Gay, who is indigent
and is not scheduled for parole until 2095.
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 bringing future
suits until he pays the outstanding fines. Support
Systems Int’l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir.
1995); In re Chapman, 328 F.3d 903, 905 (7th Cir. 2003). We
have also imposed a prospective cost bond as part of
a comprehensive set of sanctions against another particularly persistent filer of frivolous claims, requiring
that plaintiff to post a bond in future cases after
affirming the dismissal of one of his frivolous suits.
Sassower v. American Bar Ass’n, 33 F.3d 733, 736
(7th Cir. 1994).
Here, the district court might have imposed a filing
bar as a sanction on Gay because he has not paid the
fees and costs imposed on him for his past unsuccessful
litigation. We have considered whether the district
court’s bond requirement, which is invalid because the
court did not consider Gay’s indigence, could be
affirmed as a filing bar, which the court might have
imposed as a discretionary sanction for Gay’s failure to
pay past court debts. We leave it to the district court
to decide in the first instance whether Gay’s litigation
history and refusal to pay outstanding debts justifies
the sanction of a filing bar. If the court so decides, it

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must carefully craft a bar that is appropriate for this
particular party. See In re Davis, 878 F.2d 211, 212
(7th Cir. 1989). And even then the bar can apply only to
future filings. See Mack, 45 F.3d at 186.
The judgment of dismissal is R EVERSED , and the case
is R EMANDED for further proceedings consistent with
this opinion.

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