Andrade v. Maloney, et al.

Filing 68

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered: Plaintiff's Motion to Waive the Rest of Filing Fees (Docket No. 67) is DENIED; Should plaintiff seek to have the Accounting Department adjust his records to reflect payments made in connec tion with C.A. 07-11078-DPW credited toward the filing fees owed in both this civil action and his appellate action, he must file a motion within 21 days of the date of this Memorandum and Order; and The Clerk also shall enter this Order in C.A. 07-11078-DPW. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NORBERTO ANDRADE,
Plaintiff,
v.
MICHAEL T. MALONEY, ET AL.,
Defendants.

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C.A. No.

02-10613-DPW

MEMORANDUM AND ORDER
October 6, 2011
WOODLOCK, D.J.
I.

INTRODUCTION
On July 2, 2003, I issued a Memorandum and Order (Docket

No. 4) granting plaintiff Noberto Andrade’s (“Andrade”) Motion
for Leave to Proceed in forma pauperis, and assessing his
filing fee obligations in accordance with the Prison Litigation
Reform Act (“PLRA”).1

See 28 U.S.C. § 1915(b).

Thereafter, on August 16, 2006, I granted the defendants’
Motion for Summary Judgment on the grounds that Andrade had not
exhausted his administrative remedies. See Memorandum and Order
(Docket No. 53).
defendants.

Judgment was entered in favor of the

See Judgment (Docket No. 54).

On August 28, 2006, Andrade filed a Notice of Appeal
(Docket No. 56).

On March 28, 2008, the United States Court of

Appeals for the First Circuit (“First Circuit”) entered
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Andrade was assessed $1.51 initial partial filing fee, with
the balance of $148.49 to be paid in installments until the full
statutory filing fee of $150.00 was paid.

Judgment summarily affirming my grant of summary judgment.

See

First Circuit Judgment (Docket No. 65); Andrade v. Maloney, et
al., No. 06-2441 (1st Cir. 2008).
2008.

Mandate issued on April 24,

See Mandate (Docket No. 66).
More than three years later, on May 13, 2011, Andrade

filed a Motion to Waive the Rest of Filing Fees (Docket No.
67).

In support of the motion, Andrade asserts that he is

indigent and has no more funds to pay the court and still have
the essentials such as clothing, food, and cosmetics.

He also

seeks to know how much money he has paid to date.
II.

DISCUSSION
A.

Status of Accounting Records of Payments by Andrade

A review of the records of the Accounting Department of
the District Court Clerk’s Office reveals that no monies have
been credited to Andrade’s debt obligations in connection with
this civil action (i.e.

C.A. 02-10613-DPW), nor have any

monies been credited toward the $455.00 appellate filing fees
in connection with Andrade’s appeal (i.e., No. 06-2441).2

The

Court records do reflect, however, that the Accounting
Department has collected $348.74 in connection with another
civil action filed by Andrade, C.A. 07-11078-DPW.

2

He currently

The Accounting Department of the District Court Clerk’s
Office also is responsible for maintaining records of any filing
fees paid by a litigant toward the appellate filing fee.
2

owes $1.26 in that case, to satisfy the $350.00 filing fee.
Generally, this Court’s practice has been to collect
payments from prisoners on a first-assessed -- first-credited
basis.

In other words, the monies paid by Andrade would

normally first be credited toward the 2002 civil action filing
fee ($150.00), and then the 2006 appellate fee ($455.00), with
any later funds credited toward the 2007 civil action filing
fee ($350.00).
It is not clear why the Accounting Department did not
credit Andrade in the usual fashion.

Nevertheless, I will not,

sua sponte, direct the Accounting Department to re-credit the
funds already paid by Andrade toward his 2002 civil action.
Should Andrade seek to have that adjustment made, he may file a
motion for leave to do so provided he does so within 21 days of
the date of this Memorandum and Order.
Andrade is advised, however, that if granted, such
adjustment will not have any substantive impact on his debt to
this Court; the effect would be that the $150.00 filing fee for
this action would be considered to have been paid in full, and
thus there would be no need to waive “the rest” of any filing
fee owed in the District Court, thereby rendering Andrade’s
motion (Docket No. 67) moot.

Further, the balance of the

monies already paid by Andrade (i.e., $198.74 ($348.74 less
$150.00)) would then be credited toward the $455.00 appellate
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filing fee in No. 06-2441.

I do not have authority to waive

the balance of the appellate filing fee, as that assessment was
made by the First Circuit.

Thus Andrade would have to seek a

waiver of the rest of the appellate filing fee (i.e., $455.00
less the $198.74 credit) directly with the First Circuit.
Finally, any adjustment to the accounting records would
ultimately result in a $350.00 balance owed by Andrade with
respect to C.A. 07-11078-DPW (i.e., the $348.74 credit
reflected on this Court’s records would then be depleted by the
credit toward the 2002 and 2006 cases).

Under those

circumstances, I would not authorize a waiver of that filing
fee, and the assessment that I made on August 14, 2007 would
remain in effect.

See Memorandum and Order (Docket No. 7) in

C.A. 07-11078-DPW.
In enacting the PLRA, Congress has left little discretion
to the courts in this area.

Under 28 U.S.C. § 1915(b), “if 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.”

28 U.S.C. § 1915(b)(1).

Accordingly, I am

required to assess an initial partial filing payment and the
Court is required to collect subsequent payments on an
incremental basis “until the filing fees are paid.”
§ 1915(b)(1),(2).

28 U.S.C.

See Purkey v. Green, 28 Fed. Appx. 736, 746

(10th Cir. 2001)(“Section 1915(b) does not waive the filing
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fee, however, nor does it condition payment of the filing fee
on success on the merits .... Notwithstanding the district
court’s dismissal of plaintiff’s action, he is still required
to pay the full filing fee to the district court.”); McGore v.
Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997)(“Section
1915(b)(1) compels payment of the respective fees at the moment
the complaint or notice of appeal is filed.

Any subsequent

dismissal of the case does not negate this financial
responsibility.” (internal citation omitted)), overruled on
other grounds by Jones v. Bock, 549 U.S. 199 (2007).
One of the purposes of the filing fee requirement of the
PLRA – to reduce frivolous lawsuits -- would be frustrated if a
prisoner were able to obtain a waiver of the filing fee in
whole or in part.

See Crawford-El v. Britton, 523 U.S. 574,

596 (1998) (“The Prison Litigation Reform Act, Pub.L. 104-134,
110 Stat. 1321, enacted in April 1996, contains provisions that
should discourage prisoners from filing claims that are
unlikely to succeed.

Among the many new changes relating to

civil suits, the statute requires all inmates to pay filing
fees ...."); Hall v. United States, 91 Fed. Cl. 762, 678 (2010)
(“By enacting section 1915, Congress recognized that a litigant
whose filing fees and court costs are assumed by the public,
unlike a paying litigant, lacks an economic incentive to
refrain from filing frivolous, malicious, or repetitive
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lawsuits." (internal quotation marks omitted)); Cosby v.
Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003)(fee provisions of
the PLRA are intended “to reduce frivolous prisoner litigation
by making all prisoners seeking to bring lawsuits or appeals
feel the deterrent effect created by liability for filing
fees.” (internal quotation marks omitted)).
In other words, a waiver of the filing fee obligations, in
whole or in part, would allow a prisoner, unlike other
litigants, to “test the waters” regarding the merits of any
case without the adverse financial consequences associated with
the filing fee.

Here, Andrade has engaged the District Court’s

resources by filing the case and other pleadings; he has
engaged the resources of the Court in reviewing and preparing
various Orders.

Andrade’s use of Court resources is not

insubstantial.

The filing fee -- which represents only a

modest portion of the Court’s cost of deploying its resources
-- is a means to insure that resources are not consumed
thoughtlessly.

There is no basis to relieve any prisoner

plaintiff, including Andrade, of the consequences of an
improvident filing because he would rather use his funds in
some other manner.
I also have considered that Andrade has alleged that he
will suffer a hardship should he have to continue to pay the
filing fees for his case(s) because he lacks funds for basic
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necessities.

He fails, however, to provide his prison account

statement and a financial affidavit demonstrating that he
indeed lacks sufficient funds.

Moreover, he has failed to

provide any credible evidence that he would be unable to obtain
the basic necessities from the Souza Baranowski Correctional
Center, or from outside sources.3
Finally, Congress’s methodology for collection of the
filing fee pursuant to 28 U.S.C. § 1915(b) ensures that not all
funds from a prisoner account will be collected to satisfy a
prisoner’s filing fee obligations; thus, a prisoner would have
funds remaining in an inmate account available for purchase of
necessities in prison.

In light of this, I cannot credit that

Andrade would suffer any undue hardship by the continued
collection of his filing fee obligations.
III. CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1.

Plaintiff’s Motion to Waive the Rest of Filing Fees
(Docket No. 67) is DENIED;

2.

Should plaintiff seek to have the Accounting Department
adjust his records to reflect payments made in connection
with C.A. 07-11078-DPW credited toward the filing fees
owed in both this civil action and his appellate action,
he must file a motion within 21 days of the date of this

3

Moreover, a review of Andrade’s prison account statement in
2007 indicates that he was receiving funds from friends or
family. See Docket No. 6-2 in C.A. 07-11078-DPW. Andrade does
not claim that he no longer has any outside source of income that
could be used to purchase necessities.
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Memorandum and Order; and
3.

The Clerk also shall enter this Order in C.A. 07-11078DPW.

SO ORDERED.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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