Daniels v. Fresno County Board of Supervisors et al

Filing 4

ORDER to SHOW CAUSE signed by Magistrate Judge Michael J. Seng on 11/27/16. 14-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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L.M. DANIELS, II,

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Plaintiff,

1:16-cv-01609-MJS (PC)
ORDER TO SHOW CAUSE
FOURTEEN-DAY DEADLINE

v.
FRESNO COUNTY BOARD OF
SUPERVISORS, et al.,
Defendant.

Plaintiff is a former state prisoner who filed this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has filed an “Application to Proceed In Forma Pauperis by a

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Prisoner,” which reveals that Plaintiff is no longer incarcerated but is instead housed in

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“felony probation housing” near the Fresno County Jail. (ECF No. 2.)

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The in forma pauperis statute, 28 U.S.C. § 1915, distinguishes unincarcerated

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indigent people from incarcerated ones. Under § 1915(a)(1), a non-prisoner plaintiff may

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file suit without prepaying fees, provided he or she submits an affidavit demonstrating

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“that the person is unable to pay such fees or give security therefor.” Escobedo v.

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Applebees, 787 F.3d 1226, 1232 (9th Cir. 2015); Ingle v. Cir. City Stores, Inc., 328 F.3d

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1165, 1177 (9th Cir. 2003). An indigent prisoner, by contrast, is not exempt from

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prepayment. 28 U.S.C. § 1915(b)(1). Instead, the prisoner must submit a copy of his or

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her trust account statement, make an initial upfront payment, followed by subsequent

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monthly installments, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(1)-(2).
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Under § 1915(h), “the term ‘prisoner’ means any person incarcerated or detained

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in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent

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for, violations of criminal law or the terms and conditions of parole, probation, pretrial

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release, or diversionary program.” This definition is identical to that set forth under the

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Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1997e(h).

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Though the Ninth Circuit has held that individuals civilly detained under

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California’s Sexually Violent Predators Act are not a “prisoner” within the meaning of

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§1915(b), see Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000), it has not ruled

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on the applicability of § 1915(b) to former inmates in transitional housing.

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Other circuits have addressed this issue. In Jackson v. Johnson, 475 F.3d 261

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(5th Cir. 2007), the Fifth Circuit held that a plaintiff was considered a “prisoner” within the

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meaning of § 1915(b) even though he was released from prison on mandatory

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supervision and resided in a halfway house. The Fifth Circuit’s ruling was based on the

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fact that the plaintiff was incarcerated or detained in a facility rather than being released

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from incarceration to the general public and his confinement at the halfway house was

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the result of his criminal conviction, even though the purpose of his confinement there

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was primarily non-punitive. See also Witzke v. Femal, 376 F.3d 744, 752 (7th Cir. 2004)

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(determining that halfway-house resident who could leave the facility during the day but

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was locked inside at night was a prisoner for PLRA purposes); Smith v. Lappin, 2012 WL

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4214494 (D. Kan. Sept. 18, 2012) (applying PLRA to plaintiff who was confined in a

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halfway house);

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In this case, Plaintiff states that he is confined in “felony probation housing.” The

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precise nature of this housing, however, is unclear. Plaintiff will thus be given an

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opportunity to inform the Court whether his current housing follows an immediate and

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unfettered release from incarceration.

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Accordingly, it is HEREBY ORDERED that Plaintiff shall show cause in writing

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within fourteen (14) days from the date of this Order why he should not be deemed a

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“prisoner” within the meaning of § 1915(b). Plaintiff’s failure to comply with this order will
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result in a recommendation that this action be dismissed without prejudice.

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IT IS SO ORDERED.
Dated:

November 27, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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