Adler v. Gonzalez et al
Filing
75
FINDINGS and RECOMMENDATIONS to: Deny 68 Motion to Revoke Plaintiff's In Forma Pauperis Status AND Require Plaintiff to Submit an Updated Financial Affidavit, signed by Magistrate Judge Michael J. Seng on 6/30/15. Referred to Judge O'Neill. Objections Due Within Fourteen Days. (Gonzalez, R)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
BRENT ADLER,
Plaintiff,
10
11
12
CASE NO. 1:11-cv-1915-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO:
v.
F. GONZALEZ, et al.,
13
Defendants.
1) DENY MOTION TO REVOKE
PLAINTIFF’S IN FORMA PAUPERIS
STATUS; AND
2) REQUIRE PLAINTIFF TO SUBMIT AN
UPDATED FINANCIAL AFFIDAVIT
14
15
(ECF No. 68)
16
OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS
17
18
19
I.
PROCEDURAL HISTORY
20
Plaintiff is a former state prisoner who initiated this civil rights action pro se and in
21
22
forma pauperis on November 17, 2011. (ECF No. 1.) Plaintiff since has been released
23
from prison and obtained counsel. (ECF Nos. 36 & 51.) This action proceeds against
24
Defendants on Plaintiff’s First Amendment Free Exercise claim. (ECF Nos. 37, 38, 59,
25
62.)
26
27
28
On April 10, 2015, Defendants filed a motion to revoke Plaintiff’s in forma
pauperis (IFP) status. (ECF No. 68.) Plaintiff did not file an opposition or otherwise
1
respond.
2
II.
3
DISCUSSION
The in forma pauperis statute, 28 U.S.C. § 1915, distinguishes unincarcerated
4
indigent people from incarcerated ones. Under § 1915(a)(1), a non-prisoner plaintiff may
5
6
file suit without prepaying fees, provided he or she submits an affidavit demonstrating
7
“that the person is unable to pay such fees or give security therefor.” Escobedo v.
8
Applebees, -- F.3d --, at *5 (9th Cir. 2015); Ingle v. Cir. City Stores, Inc., 328 F.3d 1165,
9
1177 (9th Cir. 2003). An indigent prisoner, by contrast, is not exempt from prepayment.
10
11
28 U.S.C. § 1915(b)(1). Instead, the prisoner must submit a copy of his or her trust
account statement, make an initial upfront payment, followed by subsequent monthly
12
13
14
installments, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(1)-(2).
Most circuits agree that a released prisoner may proceed under the non-prisoner
15
provisions of the IFP statute after submitting an updated poverty affidavit, although there
16
is disagreement about whether the prisoner remains liable for the portions of the fee
17
owed prior to release. Compare DeBlasio v. Gilmore, 315 F.3d 396, 398 (4th Cir.
18
2003)(finding that “a released prisoner should not have to shoulder a more difficult
19
financial burden than the average indigent plaintiff in order to continue his lawsuit,” and
20
21
concluding that IFP status should be determined with reference to post-incarceration
22
financial circumstances); In re Prison Litig. Reform Act , 104 F.3d 1131, 1139 (6th Cir.
23
1997)(citing McGann v. Soc. Sec. Admin. Comm’r, 96 F.3d 28, 30 (2d Cir. 1996) to
24
conclude that “a released prisoner may litigate without further prepayment of fees upon
25
satisfying the poverty affidavit requirement applicable to all non-prisoners”); Brown v.
26
27
Eppler, 725 F.3d 1221, 1231 (10th Cir. 2013)(finding lower court had discretion to
determine extent of prisoner’s obligation on portions of fee not paid prior to release); with
28
2
1
Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997)(indigent ex-prisoner liable for
2
portions of fee owed while incarcerated; then is subject to § 1915(a)(1)); In re Smith, 114
3
4
F.3d 1247, 1251 (D.C. Cir. 1997)(same); see also Kellogg v. California, No. C 10-05802
2011 WL 768691, at *6 (N.D. Cal. Feb. 28, 2011) (terminating plaintiff’s § 1915(b)
5
6
application before ruling on it due to plaintiff’s release, but offering him the opportunity to
7
resubmit an application under § 1915(a)(1)); but see Gay v. Tex. Dep’t of Corr., State
8
Jail Div., 117 F.3d 240, 242 (5th Cir. 1997)(finding that prisoners who have been
9
released remain subject to prepayment obligation, and requiring full payment of fee upon
10
11
release).
Here, the Court finds that the approach set forth by the McGann and DeBlasio
12
13
14
courts seems most consistent with the statutory scheme: only indigent prisoners are
required to prepay their fee; a released prisoner is not a prisoner, so assuming he
15
remains indigent, his obligation to pre-pay should cease as well. Therefore, the Court
16
agrees that as a non-prisoner, Plaintiff may no longer be subject to the prepayment
17
requirement. He must, however, submit an updated IFP application if he wishes to
18
19
continue to proceed in forma pauperis under § 1915(a)(1).
Revocation of Plaintiff’s current IFP status, however, is not required. Other than
20
21
Plaintiff’s retention of counsel (possibly on a contingent fee basis), the court has before it
22
no evidence that Plaintiff is no longer a pauper. A trial court has “particularly broad
23
discretion” to grant or deny a prisoner-litigant pauper status. O’Loughlin v. Doe, 920 F.2d
24
614, 616 (9th Cir. 1990).
25
automatically moot just because the prisoner is subsequently released. See Moore v.
26
27
Moreover, a prisoner’s application for IFP status is not
Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011).
However, the Court must dismiss an action if it determines that “the allegation of
28
3
1
poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A); see Thomas v. Gen. Motors Acceptance
2
Corp., 288 F.3d 305, 306 (7th Cir. 2002); Samonte v. Frank, 517 F.Supp.2d 1238, 1244
3
4
(D. Hawai’i 2007); Whitsitt v. Amazon.com, No. 2:14-cv-416 2014 WL 897044, at *1
(E.D. Cal. Mar. 6, 2014). Here, Plaintiff’s status has changed profoundly. Circumstances
5
6
that undoubtedly contributed to his impoverishment, i.e., imprisonment, no longer exist.
7
If Plaintiff wishes to continue to proceed IFP, he shall submit an application for IFP
8
status that reflects his current financial circumstances.
9
10
11
III.
CONCLUSION & RECOMMENDATION
Plaintiff’s IFP status should not be revoked simply because Plaintiff has been
released from prison. Accordingly, the Court HEREBY RECOMMENDS that:
12
13
14
15
16
17
18
19
1) Defendants’ motion to revoke Plaintiff’s IFP status (ECF No. 68) be DENIED;
2) Plaintiff shall have thirty (30) days from the date these findings and
recommendations are adopted to :
a. Submit an updated financial affidavit in accordance with 28 U.S.C. §
1915(a)(1); or
b. Pay his outstanding obligation on the $400 filing fee in full; and
3) Failure to submit updated financial information or pay the filing fee shall result
20
21
22
23
in dismissal of the action without prejudice for failure to prosecute and failure
to obey a court order.
These Findings and Recommendations are submitted to the United States District
24
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
25
fourteen (14) days after being served with these Findings and Recommendations, any
26
27
party may file written objections with the Court and serve a copy on all parties. Such a
document should be captioned “Objections to Magistrate Judge’s Findings and
28
4
1
Recommendations.” Any reply to the objections shall be served and filed within fourteen
2
(14) days after service of the objections. The parties are advised that failure to file
3
objections within the specified time may result in the waiver of rights on appeal.
4
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
5
6
F.2d 1391, 1394 (9th Cir. 1991)).
7
8
IT IS SO ORDERED.
9
10
Dated:
June 30, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?