Housman v. Ludeman et al

Filing 33

ORDER: IT IS HEREBY ORDERED that: 1. Defendants' Motion to Dismiss 12 is DENIED without prejudice; 2. Plaintiff Steven Housman's Motion for an Extension 18 is DENIED as moot; 3. Housman's Motion That the Court Not Dismiss the Action 30 is GRANTED; and further directing regarding fees and timing of filings. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 10/5/2022. (LLM)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Steven A. Housman,

Civ. No. 11-3035 (PAM/JFD)
Plaintiff,
ORDER

v.
Cal R. Ludeman, et al.,
Defendants.
______________________________________________

This matter was stayed more than a decade ago pending the resolution of Karsjens
v. Minnesota Department of Human Services, No. 11-cv-3659 (DWF/TNL). Judgment has
been entered in Karsjens, and accordingly, the stay of this matter has now been lifted.
(Docket No. 32.)
At the time the stay was imposed, two motions were pending before the Court:
(1) Defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure; and (2) plaintiff Steven A. Housman’s motion for an extension
of time to respond to that Motion to Dismiss. Housman also recently filed a Motion that
this matter not be dismissed for failure to prosecute. (Docket No. 30.) The Court will
briefly address the status of each of the motions. Finally, because Housman was a
“prisoner” for purposes of 28 U.S.C. § 1915(h) at the time he commenced this action, he

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will be directed to submit documentation from which the initial partial filing fee owed in
this case may be calculated.
1.

Motion to Dismiss

Shortly before the stay was imposed, Defendants had moved to dismiss the
Complaint under Rule 12 of the Federal Rules of Civil Procedure. Since that time,
however, much about the state of the law relevant to this case has changed—not least of
which, judgment has been entered in Karsjens, a matter in which at least some of the same
claims appear to have been litigated. Housman was a member of the class represented in
Karsjens, and it therefore appears that the doctrine of res judicata may partly bar litigation
of some of the claims raised in the complaint. For those reasons, Defendants’ Motion to
Dismiss (Docket No. 12) will be denied without prejudice. Defendants must file an
amended motion to dismiss or responsive pleading within 90 days of the date of this order.
2.

Motion for Extension of Time

Housman had requested additional time to respond to the Motion to Dismiss just
before the stay. That Motion for Extension of Time (Docket No. 18) is now moot as the
Motion to Dismiss has been denied without prejudice, and will be denied as such.
3.

Motion Not to Dismiss

Due to the substantial amount of time that had passed while this matter was stayed,
Housman was directed to provide a notice of his intent to continue prosecuting this lawsuit
following the lifting of the stay. (Docket No. 29.) Housman responded to the order with
a “Motion That the Court Not Dismiss the Action.” (Docket No. 30.) A motion was not
strictly necessary—any statement from Housman that he intended to prosecute this matter
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would have sufficed—but, in any event, this matter will not be dismissed for failure to
prosecute. Housman’s motion will therefore be granted.
4.

Prison Litigation Reform Act

Housman, a client of the Minnesota Sex Offender Program (“MSOP”), applied for
in forma pauperis (“IFP”) at the outset of this litigation. See Docket No. 2. That IFP
application was granted. See Docket No. 4. In preparing to lift the stay, however, the
Court determined that Housman had been a “prisoner” when he commenced this action for
purposes of 28 U.S.C. § 1915. And because Housman was a prisoner when he commenced
this action, he must pay the $350.00 statutory filing fee for this action in installments over
time, including an initial partial filing fee paid at the outset of this case.
Under § 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
—
(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

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the court each time the amount in the account exceeds $10 until
the filing fees are paid.
****
(4) In no event shall a prisoner be prohibited from bringing a
civil action or appealing a civil or criminal judgment for the
reason that the prisoner has no assets and no means by which
to pay the initial partial filing fee.
According to this statute—which is part of the Prison Litigation Reform Act of 1995
(“PLRA”)—prisoners who are granted IFP status are not excused from paying the court
filing fee altogether, as is the case for non-prisoner IFP litigants. Instead, a prisoner who
is granted IFP status is merely granted permission to pay the filing fee in installments,
rather than paying the entire amount in advance. Ashley v. Dilworth, 147 F.3d 715, 716
(8th Cir. 1998) (“The purpose of the [PLRA] was to require all prisoner-litigants to pay
filing fees in full, with the only issue being whether the inmate pays the entire filing fee at
the initiation of the proceeding or in installments over a period of time.”). Section
1915(b)(1) requires prisoner IFP applicants to pay an initial partial filing fee at the outset
of the case, and § 1915(b)(2) requires that the remaining balance be paid in installments
through regular deductions from the prisoner’s trust account.
Section 1915(h) defines “prisoner” as “any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole, probation, pretrial release,
or diversionary program.” Generally, MSOP clients are excluded from this definition of
“prisoner”: Although “detained” in a “facility,” the typical MSOP client has not been
“accused of, convicted of, sentenced for, or adjudicated delinquent for” a violation of the
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criminal law and is instead detained pursuant to civil, rather than criminal, statutes.
Accordingly, the provisions of § 1915(b) requiring payment of the filing fee (regardless of
IFP status) do not usually apply to MSOP detainees. See Kolocotronis v. Morgan, 247
F.3d 726, 728 (8th Cir. 2001).
Housman is an exception to that usual rule. At the time he commenced this action,
Housman stood accused of criminal offenses in Minnesota state court. See State v.
Housman, No. 09-CR-10-1483 (Minn. Dist. Ct.). Housman therefore met the definition of
“prisoner” provided in § 1915(h): He was a “person” who was “detained in any facility”
and who was “accused of . . . violations of criminal law . . . .” See, e.g., Guerrero v. So,
No. 3:20-cv-1117 (GPC/MSB), 2020 WL 6449194, at *2-3 (S.D. Cal. Nov. 3, 2020)
(finding litigant committed to psychiatric hospital was nevertheless a “prisoner” under
§ 1915(h) because he was committed pending a competency hearing on criminal charges).
And because Housman was a prisoner within the meaning of § 1915(h) when he
commenced this action, the requirements of § 1915(b) apply to him. Accordingly, should
Housman elect to continue to prosecute this action, he will be required to pay the $350.00
filing fee for this matter in installments over time. Moreover, he must submit the first of
those installments—the initial partial filing fee—immediately.
Calculating that initial partial filing fee is not as straightforward here as in the usual
case. Under § 1915(b)(1), Housman owes as an initial partial filing fee 20 percent of the
greater of the average monthly deposits to his facility trust account or the average monthly
balance in his account for the 6-month period immediately preceding the filing of the
complaint. Housman did not provide detailed information from his facility trust account
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at the time he commenced this action, and due to the substantial passage of time since this
action was commenced, there is reason to believe that trust-account information for this
period is no longer available to Housman.
The Eighth Circuit has recognized the need for flexibility in assessment of the initial
partial filing fee in similar circumstances. See Henderson v. Norris, 129 F.3d 481, 484-85
(8th Cir. 1997). Housman will therefore be afforded three options for satisfying the
requirements of § 1915(b):
(1) Housman may submit financial documentation showing the
average deposits to and balance of his facility trust account for
the six months preceding the filing of this action (April 2011 –
September 2011);
(2) Housman may submit financial documentation showing the
average deposits to and balance of his facility trust account for
the six months preceding this Order (April 2022 – September
2022);
or
(3) Housman may submit an initial partial filing fee of $20.00
— that is, 20 percent of the amount that Housman attested he
had in his possession at the outset of this action (Docket No. 3
¶ 7).
Housman must either pay an initial partial filing fee of $20.00 or submit the required
financial information (from which a new initial partial filing fee will be calculated) within
21 days of the date of this Order, failing which this matter will be dismissed without
prejudice for failure to prosecute. See Fed. R. Civ. P. 41(b). Housman is warned that if he
elects to pursue this action through payment of the initial partial filing fee, the entirety of
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the remaining balance of the $350.00 statutory filing fee will have to be paid in later
installments. Facility officials will be ordered to deduct funds from Housman’s trust
account and submit such funds to the Court, as provided by § 1915(b)(2), regardless of
whether he succeeds in this action.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.

Defendants’ Motion to Dismiss (Docket No. 12) is DENIED without
prejudice;

2.

Plaintiff Steven Housman’s Motion for an Extension (Docket No. 18) is
DENIED as moot;

3.

Housman’s Motion That the Court Not Dismiss the Action (Docket No. 30)
is GRANTED;

4.

Housman must submit an initial partial filing fee of at least $20.00 or submit
financial documentation from which a new initial partial filing fee may be
calculated within 21 days of the date of this order, failing which this matter
will be dismissed without prejudice for failure to prosecute; and

5.

Defendants must file an amended motion to dismiss or other responsive
pleading within 90 days of the date of this Order.

s/ Paul A. Magnuson

Dated: October 5, 2022

Paul A. Magnuson
United States District Court Judge

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