Burton v. Schneider et al

Filing 44

ORDER Judge Benjamin H. Settle requesting additional briefing and renoting Plaintiff's motion. 40 MOTION for Order filed by Lonnie Burton RENOTED to 10/13/2017. **3 PAGE(S), PRINT ALL**(Lonnie Burton, Prisoner ID: 978598)(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LONNIE BURTON,

CASE NO. C15-5862 BHS
Plaintiff,

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v.
TRACY SCHNEIDER, et al.,

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ORDER REQUESTING
ADDITIONAL BRIEFING AND
RENOTING PLAINTIFF’S
MOTION

Defendants.

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This matter comes before the Court on Plaintiff Lonnie F. Burton’s (“Burton”)
motion for compliance with 28 U.S.C. § 1915 (Dkt. 40).

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On December 3, 2015, Judge Creatura entered an order granting Burton’s motion

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to proceed in forma pauperis (“IFP”) and directing the agency having custody of Burton

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to collect and forward partial filing fees for this action. Dkt. 5. On February 8, 2017, the

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Court entered judgment in favor of Defendants dismissing Burton’s claims. Dkt. 35.

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On August 1, 2017, Burton filed the instant motion requesting the Court to order

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the Washington Department of Corrections (“DOC”), the agency having custody of

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Burton, to comply with the IFP statute and the Court order. Dkt. 40. Burton alleges that

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ORDER - 1

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DOC officials are not properly collecting and forwarding payments from Burton’s prison

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account. Id.

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On August 11, 2017, Defendants responded and request that the Court strike or

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deny the motion. Dkt. 42. Defendants contend that Burton raises a new claim for

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injunctive relief that is outside the bounds of this case, and, therefore, he must file a new

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case to challenge DOC’s alleged actions. Id. In the alternative, Defendants offer to

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provide additional briefing on the merits if requested. Id.

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On August 17, 2017, Burton replied arguing that he is only requesting the Court to
enforce the order issued at the beginning of the matter. Dkt. 43.

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In civil cases, the Court has the authority to waive the prepayment of filing fees if

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a party is indigent and the Prison Litigation Reform Act of 1995 (“PLRA”), 28 U.S.C. §

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1915(b), does not apply. 28 U.S.C. § 1915(a). Burton, however, is a prisoner whose

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complaint is governed by the PLRA. 28 U.S.C. § 1915(b). “Although a prisoner may

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obtain IFP status under the PLRA, this does not result in a waiver of the fees—it merely

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allows the inmate to pay the fees in installments when there are sufficient funds in his

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prison account.” Porter v. Dep’t of Treasury, 564 F.3d 176, 180 (3d Cir. 2009) (citing 28

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U.S.C. § 1915(b)). Thus, even if Burton obtains IFP status, the Court has “no authority to

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waive his fees under the PLRA.” Id.

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Without further briefing, it seems unjust to require Burton to incur additional fees

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in a separate action to challenge the collection and payment of fees for this matter.

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Moreover, it appears that numerous courts have addressed assessment and collection of

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fees issues under the same case number as the merits of the complaint. See, e.g., Newlin

ORDER - 2

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v. Helman, 123 F.3d 429, 434 (7th Cir. 1997), overruled on other grounds by Lee v.

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Clinton, 209 F.3d 1025 (7th Cir. 2000), overruled on other grounds by Walker v.

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O’Brien, 216 F.3d 626 (7th Cir. 2000). Regarding the merits, at least one court has

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interpreted the phrase “when the funds exist” in the IFP statute to mean an “immediate”

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assessment and collection upon a deposit of prison wages. Newlin, 123 F.3d at 435–6.

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Moreover, the “PLRA does not create ordinary debts that prisoners must satisfy.” Hall v.

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Stone, 179 F.3d 1043, 1044 (7th Cir. 1999). Instead,

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[a]n order under 28 U.S.C. § 1915(b) is addressed to the Warden, directing
the Warden, as trustee of the account, to disburse it in a particular way.
When a judge issues an order directly to a trustee in that fiduciary role, the
trustee must comply unless the order is stayed or set aside on appeal. Under
no circumstances may the judicial order be ignored or countermanded by
the trust beneficiary.

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Id. Regardless, additional briefing would assist the Court in resolving the identified
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issues. Therefore, Defendants may file a supplemental response no later than October 6,
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2017, Burton may file a supplemental reply no later than October 13, 2017, and the Clerk
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shall renote Burton’s motion for consideration on the Court’s October 13, 2017 calendar.
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IT IS SO ORDERED.
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Dated this 12th day of September, 2017.
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A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3