Njos v. Kane et al

Filing 149

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/21/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT NJOS,

:

Plaintiff

:

v

CIVIL ACTION NO. 3:12-1252

:

THOMAS R. KANE, et al.,
Defendants

(JUDGE MANNION)

:
:
MEMORANDUM

Plaintiff Scott Njos, an inmate currently confined at the United States
Penitentiary at Florence, Colorado, filed the instant action which proceeds on
an Amended Complaint against the United States pursuant to the Federal Tort
Claims Act, 28 U.S.C. §1346 and §§2671-2680. The Amended Complaint was
filed on April 29, 2013, and alleges negligence of the United States in the
maintenance of Njos’ cell and medical negligence. (Doc. 18). The matter is
currently awaiting the scheduling of a pre-trial conference and trial following
the denial of Njos’ motion for summary judgment. (Doc. 120.) Presently
pending on the docket are a motion to compel (Doc. 146) and motion to
rescind the Authorization (Doc. 147) filed by Njos. Both motions will be denied
for the reasons that follow.
In the motion to compel, Njos seeks relief from the monthly payments
deducted from his inmate account for the filing fee in the above matter
pursuant to 28 U.S.C. §1915(b)(2). In support of his motion, Njos relies on the
case of Siluk v. Merwin, 783 F.3d 421 (3d Cir. 2015) arguing that in said case

the Third Circuit adopted a “per-prisoner” or “sequential” interpretation of §
1915(b)(2), holding that an indigent prisoner may be assessed no more than
20 percent of his monthly income toward federal court filing fees, regardless
of the number of suits filed. Id. at 436. But, on January 12, 2016, the United
States Supreme Court decided the case of Bruce v. Samuels, 136 S. Ct. 627
(2016), specifically abrogating Siluk, and held that §1915(b)(2) requires that
monthly filing-fee payments be paid simultaneously on a per case basis, not
sequentially, even if this results in 100 percent of the prisoner’s monthly
income being collected. Id. at 630-33. As such, the motion to compel is
without merit.
Also pending is Njos’ motion to rescind the Authorization he signed on
July 9, 2012. (Doc. 6.) This motion was filed on February 21, 2017, almost
one (1) month after the motion to compel was filed, when Plaintiff knew that
the Siluk case had been abrogated by the United States Supreme Court. In
this motion, Njos seeks to rescind the Authorization form he signed claiming
that he was not provided with “constructive notice” that the filing fee
installments would be deducted “simultaneous-per case.” (Doc. 147.) The
court rejects Njos’ argument for the following reasons. A prisoner proceeding
in forma pauperis under 28 U.S.C. §1915 is statutorily required to pay the
filing fee if he brings a civil action. As 28 U.S.C. §1915(b)(1) reads” “[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.” See also Porter v.
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Dept. of Treasury, 564 F.3d 176, 180 (3d Cir. 2009)(quoting section
1915(b)(1)). This court has no authority to waive an inmate’s not-yet-paid filing
fees or refund any portion of filing fees once he has brought the action. Id. As
the Third Circuit stated in regard to the filing fees for an appeal: “It is of no
consequence whether an appeal is voluntarily dismissed, dismissed due to a
jurisdictional defect, or dismissed on the merits—appellants are not entitled
to the return of their filing and docket fees.” Id. at 179. See also In re
Saunders, 563 F. App’x 165 (3d Cir. 2014)(nonprecedential); Williams v. U.S.
Dist. Court for District of Newark, 455 F. App’x 142, 144 (3d Cir. 2011)
(nonprecedential). The purpose of the fee requirements is to provide an
incentive “to ‘stop and think’ before filing suit.” Muhammad v. U.S. Marshals
Serv., 385 F. App’x 70, 73 (3d Cir. 2010)(nonprecedential)(quoting Murray v.
Dosal, 150 F.3d 814, 818 (8th Cir. 1998)).
While Njos would like to be relieved of his obligation to pay the filing fee
under contract principles such as recision, this court is unable to relieve him
of his duty. When he signed the Authorization, he was agreeing to pay the
entire filing fee in the above matter. While the process of how installments are
paid may have been affected since the time Njos signed the Authorization, his
obligation to pay the full filing fee in the above matter and the date this
obligation was incurred has never changed. For these reasons, Njos’ motion
to rescind the Authorization in the above matter will be denied.

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An appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: March 21, 2017
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