Fredin v. Clysdale et al

Filing 128

ORDER in Response to 126 Letter to Magistrate Judge re: IFP Status. (Written Opinion) Signed by Judge Susan Richard Nelson on 5/3/2019. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 18-CV-0510 (SRN/HB)

BROCK FREDIN,
Plaintiff,

ORDER

v.
ELIZABETH A. CLYSDALE; DAVID E.
MCCABE; GRACE ELIZABETH
MILLER; CATHERINE MARIE
SCHAEFER; and LINDSEY
MIDDLECAMP,
Defendants.

On April 3, 2019, this Court provisionally granted the application to proceed in
forma pauperis of plaintiff Brock Fredin and assessed an initial partial filing fee of
$59.05. See ECF No. 122. Fredin now requests that he be excused from the partialfiling-fee requirement or, alternatively, that the initial fee be recalculated. See ECF
No. 126.
As an initial matter, Fredin asks whether his detention at a county jail, rather than
a state or federal prison, exempts him “from any Prison Litigation Reform Act (‘PLRA’)
applicability.” ECF No. 126 at 1. It does not. The relevant provision of the PLRA, 28
U.S.C. § 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.” Fredin is a person “detained in [a] facility who is . . .
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convicted of . . . [a violation] of criminal law.” He is therefore a “prisoner” under
§ 1915(h), and the PLRA — including the requirement that he pay an initial partial filing
fee before prosecuting an appeal — applies to him, see 28 U.S.C. § 1915(b).
The only question remaining is how much Fredin, as a prisoner, owes towards that
initial partial filing fee. The Court originally calculated that initial partial filing fee based
on financial information submitted by Fredin along with his notice of appeal, as certified
by jail officials on February 1, 2019. See ECF No. 117 at 6. Fredin now submits
amended financial information, certified by jail officials on April 11, 2019, showing
substantially reduced deposits to his jail trust account. See ECF No. 126 at 1. These
figures, if used, would entitle Fredin to an initial partial filing fee of $11.20, not $59.05.
Id.
Neither certificate submitted by Fredin is precisely what is required under the
PLRA for an accurate calculation. The initial partial filing fee for an appeal is calculated
by using figures “for the 6-month period immediately preceding the filing of the . . .
notice of appeal.” 28 U.S.C. § 1915(b)(2). Fredin filed his notice of appeal on March 25,
2019, 1 see ECF No. 116, and thus the relevant 6-month period ends with that date.
Fredin’s first certificate included financial information only through February 1, 2019.

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The “true” date of filing for purposes of calculating the initial partial filing fee is likely
a few days earlier. Under Rule 4(c) of the Federal Rules of Appellate Procedure, a notice
of appeal submitted by a prisoner is deemed filed as of the date that the notice of appeal
is deposited in the detention facility’s internal mail system. Fredin’s notice of appeal is
dated March 17, 2019, but he has not included a declaration or notarized statement setting
out the date of deposit, and the postmark on the envelope used to send the notice of
appeal unfortunately is illegible, and thus there is currently no way to determine when the
notice of appeal may have been placed in the institution’s internal mail system.
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See ECF No. 117 at 6. Fredin’s second certificate included information dated from
April 11, 2019, and thus would appear to include more of the relevant period—except
that the more recent certificate seems to include financial information related only to the
45 days prior to the completion of that certificate. See ECF No. 126 at 1. Thus, not only
does the most recent certificate include financial information for a shorter period, but
much of that period is irrelevant for purposes of calculating the initial fee owed by
Fredin.
Although neither certificate is perfect, the Court concludes that Fredin’s earlier
certificate is the more accurate of the two for determining the correct partial filing fee
owed. Accordingly, the Court declines to recalculate Fredin’s initial partial filing fee at
this time. If Fredin seeks recalculation of that amount, he must submit what the IFP
statute requires: “a certified copy of the trust fund account statement (or institutional
equivalent) for the prisoner for the 6-month period immediately preceding the filing of
the complaint or notice of appeal.” 28 U.S.C. § 1915(a)(2) (emphasis added). This
complete statement—covering the period from October 2018 (or the date upon which
Fredin became incarcerated, whichever is later) through March 2019—would establish
conclusively the correct amount owed before initiating the appeal. Should Fredin submit
this statement within 20 days, the Court will recalculate the amount owed by him under
28 U.S.C. § 1915(b). The Court warns Fredin, however, that there is no guarantee that
his initial partial filing fee will decrease based on the financial information he submits.
Finally, this Court notes that Fredin has not demonstrated at this time that he “has
no assets and no means by which to pay the initial partial filing fee,” 28 U.S.C.
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§ 1915(b)(4), whatever that initial partial filing fee might be. Although Fredin attests that
he is not paid for the work he performs while incarcerated, his most recent certificate
establishes that has recently received deposits to his jail trust account and thus shows that
Fredin has a continuing source of income, however limited that income currently is.
Further, Fredin was capable of paying an initial partial filing fee of $59.05 in another
lawsuit recently initiated by him in this District, see Fredin v. City Pages, No. 19-CV0472 (DWF/TNL) (D. Minn.), demonstrating that he likely has at least some capability to
pay an initial partial filing fee in this matter as well. Accordingly, the requirement of an
initial partial filing fee in this case will not be waived absent a credible showing that
Fredin is truly without assets or means to pay an initial partial filing fee in this case. To
make such a showing, Fredin must submit not only his jail account statement, but
statements from all financial accounts in Fredin’s possession, including checking and
savings accounts.
SO ORDERED.
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

Dated: May 3, 2019

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