LEON MEYERS V. EDWARD BIRDSONG, ET AL, No. 17-16907 (9th Cir. 2023)
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Plaintiff, a California state prisoner, moved to recall the mandate and reinstate his 2017 appeal of the dismissal of his civil rights action against state agencies and Salinas Valley Prison medical staff and officials.
The Ninth Circuit denied the motion to reinstate the appeal but directed that his filing fees be refunded. The panel first determined that Plaintiff’s motion to recall the mandate, filed 661 days after the mandate became effective, was untimely. The panel next held that the extraordinary remedy of recalling the mandate and ordering reinstatement to prevent injustice or address exceptional circumstances was not necessary given that Plaintiff did not dispute that he had three strikes, was ineligible to proceed IFP under Section 1915(b)’s payment plan, and had not timely paid the filing fee. The appeal therefore was properly dismissed. The panel held that Section 1915 neither permits nor requires the collection of fees from a prisoner who is ineligible for IFP status because he has struck out under Section 1915(g). Plaintiff purported IFP appeal therefore was barred by 1915(g), and the district court was without authority to collect the filing fees from Plaintiff’s prison account.
Court Description: Prisoner Civil Rights/In Forma Pauperis Status The panel denied California state prisoner Leon Meyers’ motion to recall the mandate and reinstate his 2017 appeal but directed the Clerk of the District Court to refund Meyers’ filing fees for this appeal.
In 2017, this Court granted Meyers’ motion to proceed in forma pauperis (“IFP”) on appeal but subsequently, on defendants’ motion, revoked IFP authorization because under 28 U.S.C. § 1915(g), Meyers previously had more than three actions or appeals dismissed as frivolous or for failure to state a claim. Meyers did not elect to pay the filing fee in full at that time and the appeal was dismissed in January 2019. Meyers’ prison trust account, however, continued to be debited pursuant to 28 U.S.C. § 1915(b)(2) to satisfy the outstanding balance on the initial filing fee. In 2020, the filing fee was paid in full, and Meyers sought to reinstate his appeal.
The panel first determined that Meyers’ motion to recall the mandate, filed 661 days after the mandate became effective, was untimely. The panel next held that the extraordinary remedy of recalling the mandate and ordering reinstatement to prevent injustice or address exceptional circumstances was not necessary given that Meyers did not dispute that he had three strikes, was ineligible to proceed IFP under § 1915(b)’s payment plan, and had not timely paid the filing fee. The appeal therefore was properly dismissed.
The panel held that § 1915 neither permits nor requires the collection of fees from a prisoner who is ineligible for IFP status because he has struck out under §1915(g). Meyers’ purported IFP appeal therefore was barred by 1915(g) and the Court was without authority to collect the filing fees from Meyers’ prison account. The panel directed the Clerk of the District Court to return to Meyers any fees that it collected on behalf of this court for this appeal.
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