Domino v. Barr et al

Filing 13

ORDER ACCEPTING REPORT AND RECOMMENDATION: Petitioner Dylan Alexander Domino's Objections to the Report and Recommendation 9 12 are OVERRULED. The Report and Recommendation 8 is ACCEPTED. Petitioner Dylan Alexander Domino's Motion to Substitute Respondents 10 is GRANTED and his Motions for Extension of Time on Serving Respondents, to Appoint U.S. Marshal to Serve Respondents, and to Modify Case Type into Miscellaneous Filing 10 are DENIED. This action is DISMISSED pursuan t to 28 U.S.C. § 1915A. Petitioner Dylan Alexander Domino's Applications to Proceed in District Court Without Prepaying Fees or Costs 4 5 are DENIED. Petitioner must pay the unpaid balance of the court filing fee, $314.95, in acco rdance with 28 U.S.C. § 1915(b)(2). The dismissal of this action shall be counted as a "strike" against Petitioner for purposes of 28 U.S.C. § 1915(g). LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Eric C. Tostrud on 4/1/2021.(RMM)

CASE 0:20-cv-02583-ECT-BRT Doc. 13 Filed 04/01/21 Page 1 of 5

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

File No. 20-cv-2583 (ECT/BRT)

Dylan Alexander Domino,
Petitioner,
v.
Merrick B. Garland, United States Attorney
General, and Janet Yellen, Secretary of the
Treasury, Acting on behalf of the United
States (in their non-sovereign, Commercial
Capacity),

ORDER ACCEPTING REPORT
AND RECOMMENDATION

Respondents.1
________________________________________________________________________
This case is before the Court on a Report and Recommendation (“R&R”) [ECF No.
8] issued by Magistrate Judge Becky R. Thorson. Magistrate Judge Thorson recommends
dismissing this action pursuant to 28 U.S.C. § 1915A and denying Petitioner Dylan
Alexander Domino’s application to proceed in forma pauperis. R&R at 5. Domino filed
objections to the Report and Recommendation. ECF Nos. 9, 12. Because Domino has
objected, the Court is required to review the Report and Recommendation de novo pursuant
to 28 U.S.C. § 636(b)(1) and Local Rule 72.2(b)(3). The Court has undertaken that de
novo review and has concluded that Magistrate Judge Thorson’s analysis and conclusions
are correct.

1

United States Attorney General Merrick B. Garland is substituted for the former
Attorney General William P. Barr and Secretary of the Treasury Janet Yellen is substituted
for the former Secretary Stephen T. Mnuchin, because a “[public] officer’s successor is
automatically substituted as a party” and “[l]ater proceedings should be in the substituted
party’s name.” Fed. R. Civ. P. 25(d).

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One matter deserves additional comment. Domino was released from custody after
Magistrate Judge Thorson issued her R&R. See ECF No. 11. Nonetheless, § 1915A still
applies to Domino’s petition because he was incarcerated at the Anoka County Jail when
he filed it.2 See ECF No. 1; see also Olivas v. Nev. ex rel. Dep’t of Corrs., 856 F.3d 1281,
1282 (9th Cir. 2017) (holding § 1915A “applies only to claims brought by individuals
incarcerated at the time they file their complaints”); Kane v. Lancaster Cnty. Dep’t of
Corrs., 960 F. Supp. 219, 220 (D. Neb. 1997); Spurlock v. Jones, No. 17-cv-277, 2017 WL
6722860, at *1 n.1 (W.D. La. Dec. 28, 2017); Michalski v. Krebs, Civil No. 09-492-GPM,
2010 WL 1032647, at *1 (S.D. Ill. Mar. 17, 2010). Additionally, although Domino is no
longer a prisoner, he will be required to pay the outstanding amount of the filing fee under
28 U.S.C. § 1915(b) because he was a prisoner when he brought this action. See In re
Tyler, 110 F.3d 528, 529 (8th Cir. 1997) (stating that even if a prisoner’s petition is
dismissed, he is not relieved of his obligation to pay the full filing fee “because the [Prison
Litigation Reform Act (“PLRA”)] makes prisoners responsible for their filing fees the
moment the prisoner brings a civil action[.]”); McFee, 2012 WL 514708, at *1 n.1, 3 n.5
(concluding plaintiff, who was incarcerated when complaint was filed and then released,
remained liable for remainder of filing fee after pre-service dismissal, noting “[n]othing in
the PLRA suggests that the dismissal of a prisoner’s action would extinguish the ultimate

2

Even if Domino’s petition were not subject to screening under § 1915A, it would be
subject to review under 28 U.S.C. § 1915(e) and dismissed under that provision for the
same reasons described in the R&R. See McFee v. Minn., No. 11-cv-3614 (SRN/LIB),
2012 WL 514708, at *1 n.2 & 3 (D. Minn. Jan. 24, 2012), report and recommendation
adopted, 2012 WL 512611 (D. Minn. Feb. 15, 2012); Hayes v. U.S. Dep’t of Justice, No.
11-cv-462 (MJD/JSM), 2011 WL 2938100, at *2 n.2 (D. Minn. June 15, 2011), report and
recommendation adopted, 2011 WL 2936404 (D. Minn. July 18, 2011).
2 

CASE 0:20-cv-02583-ECT-BRT Doc. 13 Filed 04/01/21 Page 3 of 5

obligation to pay the filing fee”); Hayes, 2011 WL 2938100, at *4 n.3 (same).3 Likewise,
the dismissal of this action will be counted as a “strike” under the PLRA because Domino
“brought” this action “while incarcerated or detained[.]” 28 U.S.C. § 1915(g); see Harris
v. Garner, 216 F.3d 970, 975 (11th Cir. 2000) (explaining that “bringing” an action in the
context of § 1915(g) means “the filing of a suit . . . , not its continuation”); Harris v. City
of New York, 607 F.3d 18, 21–22 (2d Cir. 2010) (same).
Domino also has filed a number of motions in anticipation that his lawsuit will move
forward. ECF No. 10. Domino’s motion to substitute Respondents with their successors

3

There is disagreement among the circuit courts of appeals as to whether the PLRA’s
filing fee requirement applies to a plaintiff who was a prisoner at the time he filed an action
or appeal but has since been released. See Carson v. Tulsa Police Dep’t, 266 Fed. App’x
763, 766–67 (10th Cir. 2008) (describing split in authority). The Fifth, Seventh, and D.C.
Circuits have held, relying on the plain language of § 1915(b)(1), that a complainant must
pay the full amount of the filing fee if he was a prisoner when he commenced the action or
appeal. Id. at 766 (collecting cases). On the other hand, the Second, Fourth, and Sixth
Circuits have held that, under the PLRA, “a prisoner is obligated to pay assessed fees and
costs only while he or she remains incarcerated” and that “[a]fter release, the obligation to
pay the remainder of the fees is to be determined solely on the question of whether the
released individual qualifies for pauper status.” In re Prison Litig. Reform Act, 105 F.3d
1131, 1139 (6th Cir. 1997); see also DeBlasio v. Gilmore, 315 F.3d 396, 399 (4th Cir.
2003) (stating “[a] released prisoner should not have to shoulder a more difficult financial
burden than the average indigent plaintiff in order to continue his lawsuit” such that he
“become[s] instantly liable for the remaining filing fee balance simply because [he] ha[s]
been released”); McGann v. Comm’r, Soc. Sec. Admin., 96 F.3d 28, 29–30 (2d Cir. 1996)
(reasoning that “the detailed mechanism [Congress] created for implementing this
obligation by debiting prison accounts demonstrates that Congress expected [§ 1915(b)] to
apply to a prisoner who remains incarcerated”). In Carson, the Tenth Circuit declined to
decide the issue, reasoning that the appellant would owe the filing fee even if § 1915(b)(1)
did not apply because his claims were frivolous and therefore his request to proceed in
forma pauperis would be denied. 266 Fed. App’x at 767. It does not appear that the Eighth
Circuit has expressly addressed this issue, but its holding in Tyler that the fee obligation
imposed by § 1915(b)(1) is triggered at the time the action is filed and persists after
dismissal of an action is consistent with the conclusion that a complainant who filed an
action when he was a prisoner remains liable for the filing fee if he is subsequently released
from custody.
3 

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is superfluous because substitution is automatic pursuant to Federal Rule of Civil
Procedure 25(d). See supra note 1. Domino’s remaining motions pertaining to service and
modification of case type will be denied in light of the dismissal of this action.
Therefore, based upon all of the files, records, and proceedings in the
above-captioned matter, IT IS ORDERED THAT:
1.

Petitioner Dylan Alexander Domino’s Objections to the Report and

Recommendation [ECF Nos. 9, 12] are OVERRULED;
2.

The Report and Recommendation [ECF No. 8] is ACCEPTED;

3.

Petitioner Dylan Alexander Domino’s Motion to Substitute Respondents

[ECF No. 10] is GRANTED and his Motions for Extension of Time on Serving
Respondents, to Appoint U.S. Marshal to Serve Respondents, and to Modify Case Type
into Miscellaneous Filing [ECF No. 10] are DENIED;
4.

This action is DISMISSED pursuant to 28 U.S.C. § 1915A;

5.

Petitioner Dylan Alexander Domino’s Applications to Proceed in District

Court Without Prepaying Fees or Costs [ECF Nos. 4, 5] are DENIED;
6.

Petitioner must pay the unpaid balance of the court filing fee, $314.95, in

accordance with 28 U.S.C. § 1915(b)(2)4; and

4

As a practical matter, because Domino is no longer a prisoner as defined in
28 U.S.C. § 1915(h), the fee payment provisions of § 1915(b)(2) cannot be implemented
at this time. Should Domino be a prisoner in the future, § 1915(b)(2) might then become
applicable.
4 

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7.

The dismissal of this action shall be counted as a “strike” against Petitioner

for purposes of 28 U.S.C. § 1915(g).
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: April 1, 2021

s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court

5