(PC) Harper v. Path ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNATHAN SETH HARPER, Case No. 1:21-cv-00558-JLT-HBK (PC) 12 Plaintiff, ORDER SUA SPONTE GRANTING PLAINTIFF EXTENSION OF TIME 13 v. ORDER DIRECTING PLAINTIFF TO PAY 14 WELL PATH, et al., BALANCE OF FILING FEE OR FILE UPDATED FINANCIAL INFORMATION 15 Defendants. NOVEMBER 11, 2023 DEADLINE 16 17 18 19 On October 5, 2023, Plaintiff Johnathan Seth Harper, who is proceeding pro se, filed a 20 notice of change of address reflecting that he has been released from detention. (See Doc. No. 21 29). The same day, the Clerk re-served on Plaintiff at his new address a copy of the Court’s 22 September 12, 2023 Screening Order (Doc. No. 28), which had been returned to the Clerk as 23 undeliverable on September 26, 2023. (See docket entries of same dates). Thus, the Court will 24 sua sponte grant Plaintiff an extension of time to respond to the Court’s September 12, 2023 25 Screening Order until November 11, 2023. 26 Further, the Court notes Plaintiff initiated this action while a prisoner and was granted 27 leave to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915 (Doc. No. 7), but is “required 28 to pay the full amount of a filing fee” under the Prison Litigation Reform Act. 28 U.S.C. § 1 1915(b)(1). Based on Plaintiff’s “certified copy of the trust fund account statement (or 2 institutional equivalent) for . . . the 6-month period immediately preceding the filing of the 3 complaint,” 28 U.S.C. § 1915(a)(2), the Court granted Plaintiff IFP, assessed the full $350.00 4 filing fee, 1 directed the “agency having custody” over Plaintiff to forward to the Clerk of Court 5 both the initial, if applicable, and any subsequent monthly payments required “until the filing fees 6 are paid,” in full. (Doc. No. 7). See 7 § 1915(b)(2); see also Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005); Bruce v. Samuels, 8 577 U.S. 82, 84 (2016). 9 Due to Plaintiff’s release, the fee collection provision is now unenforceable, and the Court 10 no longer has the means to collect the fees owed by Plaintiff. See DeBlasio v. Gilmore, 315 F.3d 11 396, 399 (4th Cir. 2010) (noting that, after a prisoner is released, there is “no ‘prisoner’s account’ 12 from which to deduct . . . payments”). 13 Although the Ninth Circuit has yet to decide how a released prisoner who is obligated to 14 “pay the full amount of a filing fee” under 28 U.S.C. § 1915(b)(1) may proceed IFP after he has 15 been released, see Putzer v. Attal, 2013 WL 4519351, at *1 (D. Nev. Aug. 23, 2013) (noting the 16 “unresolved issue within the Ninth Circuit regarding the application of the Prison Litigation 17 Reform Act (PLRA) pauper application requirements in cases where the prisoner is released 18 pendente lite, i.e., during the litigation”), other circuits and district courts in California have found 19 the statutory language of § 1915(b)(1) requires released prisoners to pay the amounts still due 20 after their release if they wish to continue to prosecute their action. Gay v. Tex. Dep’t of Corr., 21 117 F.3d 240, 241–42 (5th Cir. 1997); In re Smith, 114 F.3d 1247, 1251–52 (D.C. Cir. 1997); 22 Robbins v. Switzer, 104 F.3d 895, 897–99 (7th Cir. 1997); Townsend v. Rendon, 2022 WL 23 1462181, at *2 (E.D. Cal. April 1, 2022) (directing released inmate to “either pay the filing fee in 24 full or submit a complete[d] application to proceed in forma pauperis by a non-prisoner”); 25 Makoni v. Downs, 2016 WL 7210403, at *4 (S.D. Cal. Dec. 13, 2016) (denying released 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed 28 IFP. Id. 1 prisoner’s initial IFP motion and requiring supplemental post-release IFP motion); Flynn v. 2 Canlas, 2015 WL 8492503, at *4 (S.D. Cal. Dec. 10, 2015) (same); Adler v. Gonzalez, 2015 WL 3 4041772, at *2 (E.D. Cal. July 1, 2015) (requiring “updated IFP application” of released prisoner 4 because court “ha[d] before it no evidence that Plaintiff [remained] a pauper,” and the 5 “[c]ircumstances that undoubtedly contributed to his impoverishment, i.e., imprisonment, no 6 longer exist”); Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (remanding fee payments to 7 district court in order to “review [plaintiff's] present economic situation and fit a fee to the 8 economic facts if [he was] still interested in pursuing his claim”). 9 Consequently, for this case to proceed further, Plaintiff must pay $141.17 (the total 10 amount that remains due toward the $350.00 filing fee) in one lump sum no later than November 11 11, 2023 if he wishes to continue to prosecute this action. If Plaintiff cannot pay this amount in 12 one lump sum, Plaintiff shall file a renewed motion to proceed IFP accompanied by the enclosed 13 financial form completed and signed to under penalty of perjury by this same date. Plaintiff must 14 provide a complete picture of his current financial situation, including an explanation as to his 15 ability to provide basic necessities for himself. Plaintiff must include any information relating to 16 any financial assistance he receives, the amount of this assistance, and the name of the entity 17 providing this assistance. The Court will then review the renewed application and set a monthly 18 payment schedule for the remainder of the $141.17 balance due.2 19 ACCORDINGLY, it is ORDERED: 20 1. The Court sua sponte GRANTS Plaintiff an extension of time until November 11, 21 2023 to file a response to the September 12, 2023 Screening Order (Doc. No. 28). 22 2. No later than November 11, 2023, Plaintiff must pay $141.17 (the total amount 23 that remains due toward the $350.00 filing fee) in one lump sum by cashier’s check, money order, 24 or personal check, payable to the Clerk of Court. Plaintiff shall include his name and case no. 25 1:21cv00558-JLT-HBK on the check. 26 3. If Plaintiff cannot pay this amount in one lump sum, Plaintiff, by this same date, 27 2 “In no event shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner 28 has no assets and no means by which to pay the initial filing fee.” 28 U.S.C. § 1915(b)(4). 1 | shall file a renewed motion to proceed IFP accompanied by the enclosed financial form 2 | completed and signed to under penalty of perjury. 3 4. The Clerk of the Court shall enclose a blank AO 239 (Rev. 01/15) Application to 4 | Proceed in District Court Without Prepaying Fees or Costs (Long Form) with this Order for 5 | Plaintiff's use, if appropriate. 6 5. If Plaintiff fails to comply with this Order by failing to file a response to the 7 | September 12, 2023 Order or either paying $141.17 in one lump sum or submitting a completed 8 | AO 239 renewed IFP application, the case may be dismissed for Plaintiffs failure to prosecute 9 | and/or as a sanction for Plaintiffs failure to obey a court order. 10 "| Dated: _ October 11, 2023 Wiha Th fares Zack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28