Smith v. L'Heureux et al

Filing 78

ORDER denying Plaintiff's 72 Motion to Terminate Filing Fees. Signed by Judge Tana Lin. **3 PAGE(S), PRINT ALL** (Jess Smith, Prisoner ID: 739951) (SB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JESS RICHARD SMITH,
v.

Plaintiff(s),

CASE NO. 3:18-cv-05427-TL
ORDER ON PLAINTIFF’S MOTION
TO TERMINATE FILING FEES

SGT. ELLIS et al.,
Defendant(s).

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This matter is before the Court on Plaintiff Jess R. Smith’s motion to terminate filing fees

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and for the reimbursement of collected payments (the “Motion”). Dkt. No. 72. Plaintiff, an

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incarcerated individual, brings a civil rights action under 42 U.S.C. § 1983 against individual

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Defendants for alleged violations of his constitutional rights arising out of certain incidents

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during his incarceration. Having considered the relevant record, the Court DENIES the Motion.

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The Court previously issued a judgment dismissing Plaintiff’s action. Dkt. No. 62.

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Plaintiff appealed to the Ninth Circuit. Dkt. No. 63 (Case No. 22-35352). Upon Defendant-

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Appellees’ motion, the Ninth Circuit revoked Plaintiff-Appellant’s in forma pauperis status,
ORDER ON PLAINTIFF’S MOTION
TO TERMINATE FILING FEES - 1

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finding that Plaintiff-Appellant had at least three “strikes” under 28 U.S.C. § 1915(g). Dkt. No.

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68. This statutory provision of the Prison Litigation Reform Act (“PLRA”) bars incarcerated

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individuals from filing suits after accumulating three or more dismissals (or “strikes”) on the

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grounds of frivolousness, maliciousness, or failure to state a claim upon which relief can be

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granted, except in certain circumstances not applicable here. See 28 U.S.C. § 1915(g); see also

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Dkt. No. 68 (finding Plaintiff has not alleged imminent danger of serious physical injury). The

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Ninth Circuit subsequently dismissed Plaintiff’s appeal. Dkt. No. 76. Plaintiff has a pending

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petition for a writ of certiorari before the United States Supreme Court. Dkt. No. 77.

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Plaintiff now moves the Court to waive and reimburse all court filing fees from this

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action, on the basis that the Court should have barred his complaint “at initial screening.” Dkt.

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No. 72 at 3–4. He states that he is owed $350 for the filing fee to this Court, $505 for his appeal

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to the Ninth Circuit, $9.55 in postage costs, and $78.33 in “copy cost,” for a total of $1,007.88.

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Id. at 9. Defendants oppose, arguing that the PLRA requires the imposition of filing fees on

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incarcerated plaintiffs and that, in any case, Plaintiff is not entitled to any equitable

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considerations in his favor because he has litigated this matter extensively and also failed to

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identify his prior § 1915 strikes in his complaint. Dkt. No. 74.

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As an initial matter, Plaintiff claims that the district court should have barred his

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Complaint at initial screening. But at the time Plaintiff’s motion to proceed in forma pauperis

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was granted in August 2018, one of the three prior cases that the Ninth Circuit counted as a

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“strike” had not yet been dismissed. See Dkt. Nos. 4, 68. Therefore, the three-strike rule did not

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apply to Plaintiff at the time he initiated this case.

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Filing fees for initiating a lawsuit in district court are authorized by 28 U.S.C. § 1914 and

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are part of the costs of litigation. E.g., Duclairon v. LGBTQ Cmty. & Grace Cmty. Church Klan,

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No. C18-1095, 2018 WL 5085754, at *1 (D. Or. Oct. 17, 2018) (declining to reimburse filing fee
ORDER ON PLAINTIFF’S MOTION
TO TERMINATE FILING FEES - 2

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despite plaintiff’s voluntary dismissal prior to service of process). Indeed, Plaintiff has used

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court resources by litigating this case through summary judgment and two levels of appeals.

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Further, “[n]othing in the statute, or any other statute, provides for the refund of a filing fee for

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any reason.” Id. The same is true of parties who appeal to a court of appeals. See, e.g., Porter v.

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Dep’t of Treasury, 564 F.3d 176, 179 (3d Cir. 2009) (“In addition to covering some of the costs

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associated with opening a case, these fixed fees also serve to deter the filing of frivolous

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appeals . . . .”). The PLRA also specifically requires that a prisoner plaintiff “shall be required to

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pay the full amount of a filing fee,” even if he “brings a civil action or files an appeal in forma

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pauperis.” 28 U.S.C. § 1915(b)(1). Therefore, the Court lacks the authority to refund or waive

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Plaintiff’s filing fee obligations. The Court is also unaware of any authority providing for the

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refund of postage and copying costs from the Court—nor does Plaintiff provide any.

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The Court further notes that Plaintiff does not appear to have actually paid the vast

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majority of the filing fees that he requests be refunded. The July 21, 2022, statement of his trust

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account appears to show that $350 was owed to this Court, none of which were paid, and

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$498.57 owed to the Ninth Circuit, of which only $6.43 were paid. See id. at 12 (U.S. District

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Court filing fee entry for “C18-5427 RBL”); id. (U.S. District Court filing fee entry for “22-

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35352,” the case number for Plaintiff’s Ninth Circuit appeal).

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Finally, to the extent that Plaintiff asks this Court to reverse the Ninth Circuit’s decision
revoking his in forma pauperis status, this Court lacks the authority to do so.

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Accordingly, the Court DENIES Plaintiff’s Motion (Dkt. No. 72).

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Dated this 27th day of January 2023.

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A

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Tana Lin
United States District Judge

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ORDER ON PLAINTIFF’S MOTION
TO TERMINATE FILING FEES - 3