(PC) Lamar v. Sonn ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEVIN TREVONE LAMAR III, Case No. 1:23-cv-00462-HBK (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO PAY FILING FEE OR FILE UPDATED 13 v. FINANCIAL INFORMATION 14 SONN, TOON, T. LEWIS, and FRANCO, OCTOBER 21, 2023 DEADLINE 15 Defendants. ORDER DISCHARGING ORDER TO SHOW 16 CAUSE 17 18 19 Plaintiff Devin Trevone Lamar III, who is proceeding pro se, has filed a notice of change 20 of address reflecting that he has been released from detention. (See Doc. No. 9). Because 21 Plaintiff initiated this action while a prisoner and was granted leave to proceed in forma pauperis 22 (“IFP”) under 28 U.S.C. § 1915 (Doc. No. 5), he is “required to pay the full amount of a filing 23 fee” under the Prison Litigation Reform Act (“PLRA”).1 28 U.S.C. § 1915(b)(1). Based on 24 Plaintiff’s “certified copy of the trust fund account statement (or institutional equivalent) for . . . 25 the 6-month period immediately preceding the filing of the complaint,” 28 U.S.C. § 1915(a)(2), 26 27 1 The PLRA also requires, inter alia, the Court to screen the complaint under 28 U.S.C. § 1915A and requires a prisoner to exhaust his administrative remedies properly and fully before binging a suit in 28 federal court. 1 the Court granted Plaintiff IFP, assessed the full $350.00 filing fee, 2 did not assess an initial filing 2 fee under § 1915(b)(1), and directed the “agency having custody” over Plaintiff to forward to the 3 Clerk of Court both the initial, if applicable, and any subsequent monthly payments required 4 “until the filing fees are paid,” in full. (Doc. No. 5): See § 1915(b)(2); see also Andrews v. King, 5 398 F.3d 1113, 1119 (9th Cir. 2005); Bruce v. Samuels, 577 U.S. 82, 84 (2016). 6 Due to Plaintiff’s release, the fee collection provision is now unenforceable, and the Court 7 no longer has the means to collect the fees owed by Plaintiff. See DeBlasio v. Gilmore, 315 F.3d 8 396, 399 (4th Cir. 2010) (noting that, after a prisoner is released, there is “no ‘prisoner's account’ 9 from which to deduct . . . payments”). Although the Ninth Circuit has yet to decide how a 10 released prisoner who is obligated to “pay the full amount of a filing fee” under 28 U.S.C. § 11 1915(b)(1) may proceed IFP after he has been released, see Putzer v. Attal, 2013 WL 4519351, at 12 *1 (D. Nev. Aug. 23, 2013) (noting the “unresolved issue within the Ninth Circuit regarding the 13 application of the Prison Litigation Reform Act (PLRA) pauper application requirements in cases 14 where the prisoner is released pendente lite, i.e., during the litigation”), other circuits and district 15 courts in California have found the statutory language of § 1915(b)(1) requires released prisoners 16 to pay the amounts still due after their release if they wish to continue to prosecute their action. 17 Gay v. Tex. Dep't of Corr., 117 F.3d 240, 241–42 (5th Cir. 1997); In re Smith, 114 F.3d 1247, 18 1251–52 (D.C. Cir. 1997); Robbins v. Switzer, 104 F.3d 895, 897–99 (7th Cir. 1997); Townsend 19 v. Rendon, 2022 WL 1462181, at *2 (E.D. Cal. April 1, 2022) (directing released inmate to 20 “either pay the filing fee in full or submit a complete[d] application to proceed in forma pauperis 21 by a non-prisoner”); Makoni v. Downs, 2016 WL 7210403, at *4 (S.D. Cal. Dec. 13, 2016) 22 (denying released prisoner’s initial IFP motion and requiring supplemental post-release IFP 23 motion); Flynn v. Canlas, 2015 WL 8492503, at *4 (S.D. Cal. Dec. 10, 2015) (same); Adler v. 24 Gonzalez, 2015 WL 4041772, at *2 (E.D. Cal. July 1, 2015) (requiring “updated IFP application” 25 of released prisoner because court “ha[d] before it no evidence that Plaintiff [remained] a 26 2 In addition to the $350.00 statutory fee, civil litigants must pay an additional administrative fee of 27 $52.00. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52.00 administrative fee does not apply to persons 28 granted leave to proceed IFP. Id. 1 pauper,” and the “[c]ircumstances that undoubtedly contributed to his impoverishment, i.e., 2 imprisonment, no longer exist”); Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) 3 (remanding fee payments to district court in order to “review [plaintiff's] present economic 4 situation and fit a fee to the economic facts if [he was] still interested in pursuing his claim”). 5 Consequently, for this case to proceed further, Plaintiff must pay $ 350.00 (the total 6 amount that remains due toward the $350.00 filing fee) in one lump sum no later than October 21, 7 2023 if he wishes to continue to prosecute this action. If Plaintiff cannot pay this amount in one 8 lump sum, Plaintiff shall file a renewed motion to proceed IFP accompanied by the enclosed 9 financial form completed and signed to under penalty of perjury by this same date. Plaintiff must 10 provide a complete picture of his current financial situation, including an explanation as to his 11 ability to provide basic necessities for himself. Plaintiff must include any information relating to 12 any financial assistance he receives, the amount of this assistance, and the name of the entity 13 providing this assistance. The Court will then review the renewed application and if appropriate 14 set a monthly payment schedule for the remainder of the $350.00 filling fee.3 15 On July 13, 2023, the Court issued a Show Cause Order directing Plaintiff to show cause 16 why the Court should not dismiss this case for failure to exhaust his administrative remedies prior 17 to initiating this action. (Doc. No. 7). On July 25, 2023, Plaintiff timely responded to the show 18 cause order. (Doc. No. 8). Consequently, the Court will discharge the Order to Show Cause but 19 will not screen the Complaint (Doc. No. 1) pursuant to 28 U.S.C. § 1915A until Plaintiff either 20 pays the $350.00 filing or files a renewed application to proceed in forma pauperis signed to 21 under penalty of perjury. 22 ACCORDINGLY, it is ORDERED: 23 1. No later than October 21, 2023, Plaintiff must pay $ 350.00 (the total amount 24 that remains due toward the $350.00 filing fee) in one lump sum by cashier’s check, money order, 25 or personal check, payable to the Clerk of Court. Plaintiff shall include his name and case no. 26 1:23cv00462-HBK on the check. 27 3 “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 2. If Plaintiff cannot pay this amount in one lump sum, Plaintiff, by this same date, 2 | shall file a renewed motion to proceed IFP accompanied by the enclosed financial form 3 | completed and signed to under penalty of perjury. 4 3. The Clerk of the Court shall enclose a blank AO 239 (Rev. 01/15) Application to 5 | Proceed in District Court Without Prepaying Fees or Costs (Long Form) with this Order for 6 | Plaintiff's use, if appropriate. 7 4. If Plaintiff fails to comply with this Order by either paying $350.00 in one lump 8 | sum or submitting a completed AO 239 renewed IFP application, the case may be dismissed for 9 | Plaintiff's failure to prosecute and/or as a sanction for Plaintiff’s failure to obey a court order.* 10 5. The Court discharges the Order to Show Cause (Doc. No. 7). The discharge of the 11 || Order to Show Cause is not a ruling on the merits of whether Plaintiff properly and fully 12 | exhausted his administrative remedies prior to initiating this action. 13 Dated: _ September 20, 2023 Wiha. □□ fares Zackte 15 HELENA M. BARCH-KUCHTA 6 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 | ——— * Plaintiff may also by the same date file a Notice of Voluntary Dismissal under Federal Rule of Civil 27 Procedure 41(a)(1) should he wish to voluntarily dismiss this suit and refile it in a new action to be exempt 28 from the PLRA.