Johnson v. Darr

Filing 47

ORDER: The request to consolidate filing fees is Denied. (ECF No. 46 ). Signed by Judge William Q. Hayes on 10/22/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MATTHEW L. JOHNSON,

Case No.: 10cv2334-WQH-POR
Plaintiff,

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v.

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ORDER

DARR, Correctional Officer,
Captain of the Prison,

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Defendant.

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HAYES, Judge:
The matter before the Court is the request to consolidate filing fees filed by Plaintiff
Matthew L. Johnson. (ECF No. 46).
BACKGROUND

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Plaintiff, a prisoner proceeding pro se, initiated this action on November 10, 2010

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by filing a Complaint and motion to proceed in forma pauperis. (ECF Nos. 1–2.) In the

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motion to proceed in forma pauperis, Plaintiff states, “I also understand that this fee will

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be debited from my account regardless of the outcome of this action.” (ECF No. 2 at 5.)

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The Court granted the motion to proceed in forma pauperis and stated:

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The Court finds that Plaintiff has no available funds from which
to pay filing fees at this time . . . . Therefore, the Court GRANTS
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Plaintiff’s Motion to Proceed IFP [Doc. No. 2] and assesses no
initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the
entire $350 balance of the filing fees mandated shall be collected
and forwarded to the Clerk of the Court pursuant to the
installment payment provisions set forth in 28 U.S.C. §
1915(b)(1).

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(ECF No. 4.) On September 16, 2011, the Court dismissed the action without prejudice
for failure to exhaust administrative remedies. (ECF No. 21.)
REQUEST TO CLARIFY AND CONSOLIDATE FEE OBLIGATIONS
On September 21, 2018, Plaintiff filed a letter requesting the Court to clarify his fee
obligations and “consolidate all fees into one action and FEE to be paid in the sums of 20%
of Petitioner’s wages instead of 60%.” (ECF No. 46 at 2.) Plaintiff asserts that he “fully
accept[s] his obligations to pay such Fees.” Id. at 1. Plaintiff asserts that he pays three
“seperate Fees for one case.” Id. Plaintiff asserts that fees for this case “as well as case
number 08-cv-00080-DMS-POR, CASE TITLE: ‘Johnson v. DARR,’” amount to “almost
$1,000 in Filing fees,” and “60% of [his] monthly wages.” Id. Plaintiff asserts that he
“makes around about $48.00 monthly to take care and support himself,” and that after
deductions of $26.40 for his conviction restitution and $16.10 for filing fees, he is left with
“$10.00 a month.” Id.
Under 28 U.S.C. § 1915(b)(1):
[I]f a prisoner brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the full amount of
a filing fee. The court shall assess and, when funds exist, collect,
as a partial payment of any court fees required by law, an initial
partial filing fee of 20 percent of the greater of—

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(A) the average monthly deposits to the prisoner’s account; or
(B) the average monthly balance in the prisoner’s account for the
6-month period immediately preceding the filing of the
complaint or notice of appeal.
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§ 1915(b)(1) (emphasis added). Subsection (b)(2) further requires that:
After payment of the initial partial filing fee, the prisoner shall
be required to make monthly payments of 20 percent of the
preceding month’s income credited to the prisoner’s account.
The agency having custody of the prisoner shall forward
payments from the prisoner’s account to the clerk of the court
each time the amount in the account exceeds $10 until the filing
fees are paid.

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§ 1915(b)(2). The statute further indicates that “[i]n no event shall the filing fee collected

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exceed the amount of fees permitted by statute for the commencement of a civil action,”

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and that “[i]n no event shall a prisoner be prohibited from bringing a civil action . . . for

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the reason that the prisoner has no assets and no means by which to pay the initial partial

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filing fee.” §§ 1915(b)(3)–(4); see also Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir.

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2002) (finding that § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a

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prisoner’s IFP case for “failure to pay . . . due to the lack of funds available.”).

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Nothing in § 1915 provides any authority for courts to waive full payment of the

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filing fee required by § 1915(b)(1), or return any portion of the filing fee he has already

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paid, after the civil action has been dismissed. See Avery v. Paramo, No. 13CV2261 BTM

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DHB, 2015 WL 5228034, at *3 (S.D. Cal. Sept. 8, 2015); Wilson v. Calif. Dep’t of Corrs.,

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No. 13cv1455 BTM (JLB) (S.D. Cal. Oct. 30, 2014); Adams v. Maricopa Cty. Sheriff’s

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Office, 2010 WL 4269528 at *1–2 (D. Ariz. Oct. 25, 2010) (denying prisoner’s motion to

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stop withdrawal of trust account funds pursuant to § 1915(b) and noting that “[t]he decision

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to file and prosecute this case was made by Plaintiff before he filed [his] case. Having filed

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[it], [he] and the Court are both statutorily limited by the strictures of 28 U.S.C. § 1915.”).

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The Supreme Court has held that the payment of filing fees in prisoner IFP cases

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requires a “per case” approach. Bruce v. Samuels, 136 S. Ct. 627, 632 (2016).
Just as § 1915(b)(1) calls for assessment of “an initial partial
filing fee” each time a prisoner brings “a civil action or files an
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appeal” (emphasis added) so its allied provision, § 1915(b)(2),
triggered immediately after, calls for “monthly payments of 20
percent of the preceding month’s income” simultaneously for
each action pursued.

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Id. The Supreme Court held that this interpretation “better comports with the purpose of

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the PLRA to deter frivolous suits,” while § 1915(b)(4)’s “safety-valve provision . . . ensures

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against denial of access to federal courts.” Id. at 632–33.

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In this case, the relevant dockets show that Plaintiff is required to pay the full $350
initial filing fee for both cases. See 10-cv-2334 at ECF No. 4; 08-cv-080 at ECF No. 3.
The dockets also show that Plaintiff is required to pay the $455 appellate filing fee due as
a result of his filing a notice of appeal in both cases. See 10-cv-2334 at ECF No. 37 for

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Appeal No. 12-55532; 08-cv-080 at ECF No. 22 for Appeal No. 09-55490. Plaintiff’s total

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fees are $1,600. Plaintiff asks the Court to “consolidate all fees into one action” so that

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only 20 percent of his monthly wages are garnished for all of his cases. However, the Court
concludes that no provision of § 1915 authorizes the Court to waive the filing fee
obligations Plaintiff incurred when he was granted IFP status as an individual in custody.
See § 1915(b).
IT IS HEREBY ORDERED that the request to consolidate filing fees is DENIED.
(ECF No. 46.)
Dated: October 22, 2018

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