Past issues of PLN have reported on the tactic seized upon by the Washington Attorney General's office to retaliate against prisoners who exercise their right of access to the courts, namely billing prisoners for the costs incurred by the AG in litigating [See PLN, Vol. 4, No. 6]. A party against whom a bill of costs is lodged by the federal court clerk can object to the district judge within five days of the orders entry.

Don Hemphill is a prisoner at the Washington State Penitentiary (WSP) and a PLN reader. After the ninth circuit dismissed his suit, which he had won in the district court, challenging the DOC's digital probe policy, the AG's office filed a bill of costs against him. The clerk entered an order of costs on September 16, 1993, but Hemphill waited until November 2, 1993, to file his objections to the costs. Because of the delay he was barred from objecting to the bill of costs.

However, District Court Judge Justin Quakenbush entered a Temporary Restraining Order (TRO) barring the DOC from collecting costs from Hemphill. In the TRO issued December 14, 1993, Judge Quakenbush noted that had Hemphill filed a timely objection to the bill of costs it would have received serious consideration from the court. "Under properly filed objections or motions in cases similar to the present, this court would seriously consider denial of an award of costs against an indigent prisoner, so long as the claims were not frivolous, malicious, or vexatious." "It appears the State of Washington is filing cost bills against all indigent prisoners, regardless of the relative merits of the claims. A district court may deny the taxation of costs against indigent persons in the exercise of its discretion.... This seems only fair since a small sum of costs for the average person could represent an enormous percentage of an indigent person's wealth."

Because indigent prisoners might be chilled from exercising their right of access to the courts by filing meritorious claims, it is inappropriate for the federal courts to allow a possible cost award to be used by the State of Washington to deter non-frivolous constitutional claims by indigent prisoners whose entire estates could be consumed by a costs bill. The court held it could also deny costs where there was a disparity of resources between the parties. Noting that the State of Washington has virtually unlimited litigation resources while the indigent prisoner has none, that factor also applies. The court again noted that had Hemphill objected promptly "costs may well have not been taxed against him. "

Hemphill sought a TRO preventing the DOC from freezing or withdrawing money from his prison account to pay the costs imposed in this case. "The court's research has disclosed no statute, WAC or case law which expressly permits the Department of Corrections to unilaterally withhold funds from a prisoner's trust account to be applied to costs awarded to individual defendants in an unrelated civil action without due process or court authorization.

"It may be that the individual defendants, who individually recovered costs, could apply to this court for the issuance of a writ of garnishment or other process to attempt to recover their actual out of pocket costs from a prisoner's account. However, in the event of such action, the prisoner would be entitled to contest the matter, and at a minimum, would also be entitled to the same exemptions from attachment by writ of garnishment as would a non-confined person."

Because of this, Judge Quakenbush granted the TRO restraining the DOC "from appropriating funds from the Plaintiffs prisoner accounts to apply to the payment of civil action cost bills, pendite lite, without a prior order or process of this court." The court has appointed counsel to represent Hemphill on this matter and is currently deciding whether to enter an order making this a Permanent or Preliminary Injunction. So far this decision has not been reported.

See: Hemphill v. Kincheloe, Case No. CV-86-953-JLQ.

Washington prisoners will note that the federal courts in the Eastern District now include a general order "Each party shall bear their own costs" in any rulings dismissing a suit. In the Western district the court clerk has an order stating the court clerk will not award costs unless the suit was dismissed on the basis of being frivolous or malicious.

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