(PC) Reyes v. Valley State Prison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE REYES, 1:20-cv-00023-ADA-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 vs. RECOMMENDING THAT DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IN 14 VALLEY STATE PRISON, et al., FORMA PAUPERIS STATUS BE DENIED 15 Defendants. (ECF No. 40.) 16 OBJECTIONS, IF ANY, DUE ON OR BEFORE 17 MAY 30, 2023 18 19 20 Plaintiff Jose Reyes is a state prisoner proceeding pro se and in forma pauperis with this 21 civil rights action pursuant to 42 U.S.C. § 1983. 22 Currently before the Court is Defendants’ motion to revoke Plaintiff’s in forma pauperis 23 status, filed on March 8, 2023. (ECF No. 40.) 24 I. PROCEDURAL BACKGROUND 25 This case now proceeds with the Fourth Amended Complaint filed by Plaintiff on 26 November 9, 2022, against Defendant Moosbauer for retaliation; and against Defendants 27 Moosbauer and Fisher for RLUIPA violations, First Amendment Free Exercise Clause violations, 28 and an Eighth Amendment Failure to Protect Plaintiff violation. (ECF Nos. 34, 36.) 1 On March 8, 2023, Defendants filed a motion to revoke Plaintiff’s in forma pauperis 2 status based on his release from prison. (ECF No. 40.) Plaintiff did not file an opposition and 3 the time to do has now passed. Local Rule 230(l). 4 II. IN FORMA PAUPERIS STATUS 5 All parties instituting any civil action, suit or proceeding in a district court of the United 6 States, except an application for writ of habeas corpus, must pay a filing fee of $402. Townsend 7 v. Rendon, No. 121CV01120DADSABPC, 2022 WL 1462181, at *1 (E.D. Cal. Apr. 1, 2022) 8 (citing see 28 U.S.C. § 1914(a).) 1 An action may proceed despite a plaintiff’s failure to prepay 9 the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 10 1915(a). Id. (citing see Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999)). However, if 11 the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), as amended by the Prison 12 Litigation Reform Act (“PLRA”), at the time of filing, he may be granted leave to proceed in 13 forma pauperis, but unlike non-incarcerated civil litigants, he remains obligated to pay the entire 14 fee in installments, regardless of whether his action is ultimately dismissed. Id. (citing see 28 15 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002)). 16 Thus, under the PLRA, a prisoner seeking leave to proceed in forma pauperis must submit 17 a “certified copy of the trust fund account statement (or institutional equivalent) for the prisoner 18 for the six-month period immediately preceding the filing of the complaint.” Id. (citing 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005)). From the certified trust 20 account statement, the Court must assess an initial payment of 20% of (a) the average monthly 21 deposits in the account for the past six months, or (b) the average monthly balance in the account 22 for the past six months, whichever is greater, unless the prisoner has no assets. Id. (citing see 28 23 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4)). The institution having custody of the prisoner must 24 collect subsequent payments, assessed at 20% of the preceding month’s income, in any month in 25 /// 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 28 Schedule, § 14). However, the additional $52 administrative fee does not apply to persons granted leave to proceed in forma pauperis. Id. 1 which the prisoner’s account exceeds $10, and forward those payments to the Court until the 2 entire filing fee is paid. Id. (citing see 28 U.S.C. § 1915(b)(2)). 3 Another benefit of in forma pauperis status is that the plaintiff is entitled to service of 4 process of the complaint upon defendants by the U.S. Marshal. Fed. R. Civ. P. 4(c)(3) (in cases 5 involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court, shall 6 serve the summons and the complaint). Here, this benefit was not mentioned in Defendants’ 7 motion and therefore the Court will not address it in this order. 8 III. DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IFP STATUS 9 Defendants assert that Plaintiff was incarcerated at Valley State Prison in Chowchilla, 10 California, when he filed this action. As a prisoner, therefore, he is “required to pay the full 11 amount of a filing fee” in order to commence a civil action. Id. (quoting 28 U.S.C. § 1915(b)(1)). 12 When a prisoner, like Plaintiff, files a motion to proceed in forma pauperis which shows he is 13 financially unable to prepay the full amount of the civil filing fee required by 28 U.S.C. § 1914(a), 14 the Court typically assesses an initial partial filing fee based on Plaintiff’s average inmate trust 15 account deposits and balances over the six-month period preceding the filing of his complaint, 16 see 28 U.S.C. § 1915(b)(1), and thereafter directs the “agency having custody” to forward both 17 the initial and subsequent monthly payments required “until the filing fees are paid.” Id. (quoting 18 see 28 U.S.C. § 1915(b)(2)). 19 Defense counsel, Zachary Glantz, indicates that Plaintiff has been released from custody, 20 declaring as follows: 21 On November 10, 2022, I received a letter dated November 7 from 22 Plaintiff Jose Reyes enclosing a copy of his Fourth Amended Complaint. The 23 letter informed me that Plaintiff was going to be released from prison on 24 November 24, and it provided an address where correspondence relating to this 25 case should be sent following his release. The Fourth Amended Complaint, but 26 not this letter, were docketed by the Court on November 9. (ECF No. 36.) A true 27 and correct copy of Plaintiff’s November 7 letter to me is attached hereto as 28 Exhibit A. (Declaration of Zachary Glantz, ECF No. 40 at 7 ¶ 2.) 1 On November 18, I wrote a letter to Plaintiff in response to his November 2 7 letter, although my letter was not placed in the mail to Plaintiff until November 3 20. In my letter, I warned Plaintiff that his correspondence to me did not satisfy 4 his obligations to keep the Court apprised of his current address. A true and correct 5 copy of my response letter to Plaintiff is attached hereto as Exhibit B. (Id. at 7 ¶ 6 3.) 7 Plaintiff was assigned the CDCR number AC9213 during his 8 incarceration. A search of CDCR’s online Inmate Locator (located at 9 https://inmatelocator.cdcr.ca.gov/) for that number yields no results, indicating 10 that Plaintiff has been released from CDCR’s custody. (Id. at 7 ¶ 4.) 11 IV. DISCUSSION 12 Plaintiff has not notified the Court of his release from Valley State Prison, nor of an 13 address change. In fact, on January 23, 2023, the Court served an Order of Understanding on 14 Plaintiff at his Valley State Prison address, identified by his CDCR number A9213, and the mail 15 was not returned to the Court as undeliverable. (ECF No. 39.) Since the January 23, 2023 16 service, the Court has not served any other orders on Plaintiff or filed any documents submitted 17 by Plaintiff. (Court Record.) 18 Plaintiff’s release from custody would render 28 U.S.C. § 1915(b)’s fee collection 19 provisions unenforceable in this case. If Plaintiff is no longer incarcerated at Valley State Prison 20 or another correctional facility, no inmate trust account exists from which his filing fees may be 21 garnished and forwarded to the court. Townsend, 2022 WL 1462181, at *1 (E.D. Cal. Apr. 1, 22 2022) (citing see DeBlasio v. Gilmore, 315 F.3d 396, 399 (4th Cir. 2010) (noting that after a 23 prisoner is released, there is “no ‘prisoner’s account’ from which to deduct . . . payments.”)). 24 The Ninth Circuit has yet to decide how a released prisoner who is obligated to “pay the 25 full amount of a filing fee” under 28 U.S.C. § 1915(b)(1) may proceed IFP after he has been 26 released, i.e., whether he must prepay the entire civil filing fee at once, whether he may proceed 27 pursuant to some other partial fee and/or court-ordered installment payment plan, or whether his 28 obligation to pay the fee is waived altogether or in part by virtue of his release. Makoni v. Downs, 1 No. 16CV2335-AJB (WVG), 2016 WL 7210403, at *2 (S.D. Cal. Dec. 13, 2016) (citing see 2 Putzer v. Attal, 2013 WL 4519351 at *1 (D. Nev. Aug. 23, 2013) (unpub.) (noting the 3 “unresolved issue within the Ninth Circuit regarding the application of the Prison Litigation 4 Reform Act (PLRA) pauper application requirements in cases where the prisoner is released 5 pendente lite, i.e., during the litigation.”); see also Turner v. San Diego County, 2014 WL 6 5800595 at *2-3 (S.D. Cal. Nov. 7, 2014) (unpub.) (noting absence of 9th Circuit authority); 7 Patten v. Walker, 2015 WL 3623687 at *5 (E.D. Cal. June 9, 2015) (unpub.) (same)). However, 8 some district courts and some other circuit courts have held that if a prisoner proceeding in forma 9 pauperis is released from prison while their action is pending, they must submit an updated in 10 forma pauperis affidavit under 28 U.S.C. § 1915(a)(1) or pay the filing fee. Id. (citing see 11 DeBlasio, 315 F.3d at 399; In re Prison Litig. Reform Act, 105 F.3d 1131, 1138-39 (6th Cir. 12 1997); McGann v. Comm’r Soc. Sec. Admin., 96 F.3d 28, 30 (2d Cir. 1996) (holding “a released 13 prisoner may litigate without further prepayment of fees upon satisfying the poverty affidavit 14 requirement applicable to all non-prisoners”); Flores v. Cal. Corr. Women’s Facility, Case No. 15 1:19- cv-1509-NONE-JLT (PC), 2020 WL 8821643 at *2 (E.D. Cal. June 24, 2020) (released 16 prisoner plaintiff must notify the Court of intent to pay filing fee or file a non-prisoner application 17 to proceed in forma pauperis); Adler v. Gonzalez, No. 1:11-cv-1915-LJO-MJS (PC), 2015 WL 18 4041772, at *2 (E.D. Cal. July 1, 2015) (applying McGann and DeBlasio to require released 19 prisoner plaintiff to submit a new in forma pauperis application to continue to proceed in forma 20 pauperis); but see Gay v. Texas Dep’t of Corr. State Jail Div., 117 F.3d 240, 242 (5th Cir. 1997) 21 (applicability of PLRA is determined at the time of filing, and subsequent release “is irrelevant” 22 to continuing obligation to pay fee)). 23 Defendants provide evidence that Plaintiff expected to be released from Valley State 24 Prison on November 24, 2022. (Declaration of Zachary Glantz, ECF No. 40 at 8 ¶ 2 & Exh. A.) 25 Defense counsel declares that he searched CDCR’s online Inmate Locator for Plaintiff’s CDCR 26 number AC9213 and the search yielded no results, indicating that Plaintiff has been released 27 from CDCR’s custody. (Id. at ¶ 4.) 28 1 Importantly however, this Court’s financial records show that Plaintiff finished paying 2 the $350 filing fee in full for this case in October 2021. (Financial Department.) Because 3 Plaintiff’s filing fee for this action is paid in full, Defendants’ motion to revoke Plaintiff’s in 4 forma pauperis status is moot, whether or not Plaintiff has been released from custody. 5 Therefore, the Court shall recommend that Defendants’ motion to revoke Plaintiff’s in forma 6 pauperis status be denied. 7 V. CONCLUSION AND RECOMMENDATIONS 8 Based on the foregoing, it is HEREBY RECOMMENDED that: 9 1. Defendants’ motion to revoke Plaintiff’s in forma pauperis status as a prisoner, 10 filed on March 8, 2023, be DENIED; and 11 2. This case be referred back to the Magistrate Judge. 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). On or before 14 May 30, 2023, the parties may file written objections with the Court. The document should be 15 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are 16 advised that failure to file objections within the specified time may result in the waiver of rights 17 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 18 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20 21 Dated: May 3, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28