Wesley v. LaSalle Management et al

Filing 119

MEMORANDUM ORDER denying 109 Motion for Rule to Show Cause. Signed by Magistrate Judge Joseph H L Perez-Montes on 9/25/2019. (crt,ThomasSld, T)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
SEAN WESLEY (#372598),
Plaintiff

CIVIL DOCKET NO. 1:16-CV-1479-P

VERSUS

JUDGE DONALD E. WALTER

LASALLE MANAGEMENT, ET
AL.,
Defendants

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is a Motion for Rule to Show Cause (Doc. 109) filed by pro se
Plaintiff Sean Wesley (“Wesley”) (#372598). Wesley is an inmate in the custody of
the Louisiana Department of Corrections (“DOC”), incarcerated at the Raymond
Laborde Correctional Center. At the time of filing, Wesley was incarcerated at River
Correctional Center in Ferriday, Louisiana. In his Complaint (Doc. 1), Wesley alleges
that he has been denied medical treatment for Hepatitis C. In this Motion (Doc. 109),
Wesley asks that the Court order the DOC to show why it should not be ordered to
comply with 28 U.S.C. § 1915(b)(2).
Because Wesley has not demonstrated that the DOC has failed to comply with
§ 1915, his Motion for Rule to Show Cause (Doc. 109) is DENIED.
I.

Background
Wesley alleges he made numerous sick calls for medical treatment due to

Hepatitis C. (Doc. 1, p. 3). Wesley claims he was denied medical care by staff at
numerous LaSalle Management Company, LLC (“LaSalle Management”) facilities

because treatment is too expensive. (Docs. 1, 13, 14). Wesley was also informed that
he could not receive treatment until he had been incarcerated for two years. (Doc. 18,
p. 2). Wesley states that LaSalle Management simply transferred him between
facilities rather than providing him with medical care. (Docs. 1, 13, 14). Wesley
allegedly experiences physical and emotional pain as a result of the lack of treatment.
(Doc. 1, p. 3).
Wesley was granted leave to proceed in forma pauperis. (Doc. 16).
II.

Law and Analysis
First, Wesley fails to adequately allege that the DOC is not in compliance with

§ 1915. Wesley simply quotes the statute and asks the Court to have the DOC comply.
(Doc. 109).
In another suit filed by Wesley regarding Hepatitis C treatment—which has
been dismissed—Wesley filed a similar Motion for Rule to Show cause in which he
provided additional argument.

(5:16-cv-1332; Doc. 75).

In that Motion, Wesley

claimed that the DOC was taking more than 20% of funds above $10.00 in one 30-day
period in order to pay the filing fee for Wesley’s appeal in that case. (5:16-cv-1332;
Doc. 75).
In denying Wesley’s motion, the District Judge pointed out that Wesley
“misunderstands the IFP procedures in the Prison Litigation Reform Act (“PLRA”).”
(5:16-cv-1332; Doc. 75). As the District Judge noted in denying the motion:
Under the PLRA:
(b)(1) Notwithstanding subsection (a), if a prisoner brings a civil action
or files an appeal in forma pauperis, the prisoner shall be required to
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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-(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.
(2) 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.
28 U.S.C.A. § 1915(b)(1)-(2). This provision imposes two separate
payment requirements. First, an inmate proceeding IFP must pay the
initial partial filing fee as soon as funds are available in his or her
account. Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000) (per
curiam) (citing Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997)
(per curiam); McGore v. Wrigglesworth, 114 F.3d 601, 606 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 203
(2007)). Because “the ten-dollar rule of § 1915(b)(2) is applicable only
after the initial partial filing fee is paid,” id. (citing McGore, 114 F.3d at
606), all of the funds in an inmate’s account may be withdrawn to satisfy
the initial partial filing fee. Once that fee has been paid, the monthly
payments to satisfy the remainder of the full filing fee must begin; it is
those deductions that are limited to twenty percent of the previous
month’s income. Id. at 653-54 (citing McGore, 114 F.3d at 607). Because
the two types of payments are separate, the statue does not support
Plaintiff’s reading that monthly withdrawals to satisfy the remainder of
the full filing fee may only begin in the month following the payment of
the initial partial filing fee. The statute merely indicates that funds
should be attributed first to the initial partial filing fee and then to the
remainder of the filing fee.
In other words, once IFP status is granted, an inmate must make the
payment described in § 1915(b)(1) (20% of the account balance or
deposits for the previous six months) and the payment described in §
1915(b)(2) (20% of the previous month’s income on a monthly basis). The
$20.83 represents the initial partial filing fee (pursuant to § 1915(b)(1)).
(5:16-cv-1332, Doc. 77).

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To the extent Wesley contends that he should not have to pay fees in both cases
and appeals, and that 20% of his income is the total amount that may be deducted
monthly for all his pending cases, his argument is foreclosed by Fifth Circuit
precedent. See Atchison v. Collins, 288 F.3d 177, 180 (5th Cir. 2002) (per curiam)
(“We hold that § 1915(b)(2) is unambiguous and mandates that prisoners pay twenty
percent of their monthly income for each case filed.”).
III.

Conclusion
Because Wesley has not demonstrated that the DOC has failed to comply with

§ 1915, his Motion for Rule to Show Cause (Doc. 109) is DENIED.
25th
THUS DONE AND SIGNED in Alexandria, Louisiana, on this _____ day of
September 2019.
__________________________________________
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE

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