("we now join the Eleventh, Sixth, and Fifth Circuits in concluding that § 1915(g) does not violate the guarantees of equal protection and due process); Gavin v. Branstad, 122 F.3d 1081, 1092 (8th Cir. 1997) (reversing district court decision that immediate termination decision of PLRA was unconstitutional); Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999) ("the government's interest was apparently to curtail frivolous prisoners' suits and to minimize the costs—which are borne by taxpayers—associated with those suits" and survive the minimal standard for rational basis review.); see also Morrison v. Davis, 88 F.Supp.2d 799, 808 (S.D. Ohio 2000), amended in part, 195 F.Supp.2d 1019 (S.D. Ohio 2001) ("This Court finds that although the PLRA does single out prisoners for a particular burden in § 1983 actions, Congress's goal in placing that burden on prisoners was to bring prisoners' litigation incentives on par with, not below, non-incarcerated litigants. The principles of equal protection do not prevent Congress from burdening prisoners in this way.
); Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (joining the other circuits that have upheld the constitutionality of this statute.); White v. State of Colo., 157 F.3d 1226, 1235 (10th Cir. 1998) ("we now join the Eleventh, Sixth, and Fifth Circuits in concluding that § 1915(g) does not violate the guarantees of equal protection and due process); Gavin v. Branstad, 122 F.3d 1081, 1092 (8th Cir. 1997) (reversing district court decision that immediate termination decision of PLRA was unconstitutional); Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999) ("the government's interest was apparently to curtail frivolous prisoners' suits and to minimize the costs—which are borne by taxpayers—associated with those suits" and survive the minimal standard for rational basis review.); see also Morrison v. Davis, 88 F. Supp. 2d 799, 808 (S.D. Ohio 2000), amended in part, 195 F.Supp.2d 1019 (S.D. Ohio 2001) ("This Court finds that although the PLRA does single out prisoners for a particular burden in § 1983 actions, Congress's goal in placing that burden on prisoners was to bring prisoners' litigation incentives on par with, not below, non-incarcerated litigants. The principles of equal protection do not prevent Congress from burdening prisoners in this way.
); Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (joining the other circuits that have upheld the constitutionality of this statute.); White v. State of Colo., 157 F.3d 1226, 1235 (10th Cir. 1998) ("we now join the Eleventh, Sixth, and Fifth Circuits in concluding that § 1915(g) does not violate the guarantees of equal protection and due process); Gavin v. Branstad, 122 F.3d 1081, 1092 (8th Cir. 1997) (reversing district court decision that immediate termination decision of PLRA was unconstitutional); Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999) ("the government's interest was apparently to curtail frivolous prisoners' suits and to minimize the costs—which are borne by taxpayers—associated with those suits" and survive the minimal standard for rational basis review.); see also Morrison v. Davis, 88 F.Supp.2d 799, 808 (S.D. Ohio 2000), amended in part, 195 F.Supp.2d 1019 (S.D. Ohio 2001) ("This Court finds that although the PLRA does single out prisoners for a particular burden in § 1983 actions, Congress's goal in placing that burden on prisoners was to bring prisoners' litigation incentives on par with, not below, non-incarcerated litigants. The principles of equal protection do not prevent Congress from burdening prisoners in this way.
); Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (joining the other circuits that have upheld the constitutionality of this statute.); White v. State of Colo., 157 F.3d 1226, 1235 (10th Cir. 1998) ("we now join the Eleventh, Sixth, and Fifth Circuits in concluding that § 1915(g) does not violate the guarantees of equal protection and due process); Gavin v. Branstad, 122 F.3d 1081, 1092 (8th Cir. 1997) (reversing district court decision that immediate termination decision of PLRA was unconstitutional); Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999) ("the government's interest was apparently to curtail frivolous prisoners' suits and to minimize the costs—which are borne by taxpayers—associated with those suits" and survive the minimal standard for rational basis review.); see also Morrison v. Davis, 88 F.Supp.2d 799, 808 (S.D. Ohio 2000), amended in part, 195 F.Supp.2d 1019 (S.D. Ohio 2001) ("This Court finds that although the PLRA does single out prisoners for a particular burden in § 1983 actions, Congress's goal in placing that burden on prisoners was to bring prisoners' litigation incentives on par with, not below, non-incarcerated litigants. The principles of equal protection do not prevent Congress from burdening prisoners in this way.
The Third Circuit in Hernandez v. Kalinowski, 146 F.3d 196 (3rd Cir. 1998), applied the established rate for the Eastern District of Pennsylvania. Several other district courts have also used the rate implemented in their district. See Morrinson v. Davis, 195 F. Supp.2d 1019 (S.D. Ohio 2000); Searles v. Van Bebber, 64 F. Supp.2d 1033, 1037 (D. Kan. 1999) (using the rate established by the Judicial Conference for the Court of Appeals for the Tenth Circuit); Clark v. C.O. Phillips, June 27, 2004, 335 (N.D.N.Y. 1997). This Court will follow the majority of the courts in applying the implemented rate of the district.
With this backdrop, it is not surprising that judicial precedent has not agreed upon the appropriate PLRA attorney rate in those situations where a greater CJA rate is authorized than is implemented for payment in a district. In Hernadez v. Kalinowski, 146 F.3d 196, 201 (3rd Cir. 1998), the Third Circuit held that the PLRA limitation applied to 150 percent of the amount implemented for payment within a district, as opposed to 150 percent of the maximum amount authorized for payment by the Judicial Conference. This holding was followed by the Ninth Circuit in Madrid v. Gomez, 190 F.3d 990, 993 n. 2 (9th Cir. 1999) and the Southern District of Ohio in Morrison v. Davis, 195 F. Supp.2d 1019, 1022-23 (S.D.Ohio 2001). The Morrison decision cited several other court decisions supporting this interpretation and also relied on the previous Hadix decision which set the PLRA rate by reference to the maximum fee implemented within the applicable district.