(PC) Adler v. Gonzalez et al, No. 1:2011cv01915 - Document 75 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS to: Deny 68 Motion to Revoke Plaintiff's In Forma Pauperis Status AND Require Plaintiff to Submit an Updated Financial Affidavit, signed by Magistrate Judge Michael J. Seng on 6/30/15. Referred to Judge O'Neill. Objections Due Within Fourteen Days. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 BRENT ADLER, Plaintiff, 10 11 12 CASE NO. 1:11-cv-1915-LJO-MJS (PC) FINDINGS AND RECOMMENDATIONS TO: v. F. GONZALEZ, et al., 13 Defendants. 1) DENY MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS; AND 2) REQUIRE PLAINTIFF TO SUBMIT AN UPDATED FINANCIAL AFFIDAVIT 14 15 (ECF No. 68) 16 OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS 17 18 19 I. PROCEDURAL HISTORY 20 Plaintiff is a former state prisoner who initiated this civil rights action pro se and in 21 22 forma pauperis on November 17, 2011. (ECF No. 1.) Plaintiff since has been released 23 from prison and obtained counsel. (ECF Nos. 36 & 51.) This action proceeds against 24 Defendants on Plaintiff’s First Amendment Free Exercise claim. (ECF Nos. 37, 38, 59, 25 62.) 26 27 28 On April 10, 2015, Defendants filed a motion to revoke Plaintiff’s in forma pauperis (IFP) status. (ECF No. 68.) Plaintiff did not file an opposition or otherwise 1 respond. 2 II. 3 DISCUSSION The in forma pauperis statute, 28 U.S.C. § 1915, distinguishes unincarcerated 4 indigent people from incarcerated ones. Under § 1915(a)(1), a non-prisoner plaintiff may 5 6 file suit without prepaying fees, provided he or she submits an affidavit demonstrating 7 “that the person is unable to pay such fees or give security therefor.” Escobedo v. 8 Applebees, -- F.3d --, at *5 (9th Cir. 2015); Ingle v. Cir. City Stores, Inc., 328 F.3d 1165, 9 1177 (9th Cir. 2003). An indigent prisoner, by contrast, is not exempt from prepayment. 10 11 28 U.S.C. § 1915(b)(1). Instead, the prisoner must submit a copy of his or her trust account statement, make an initial upfront payment, followed by subsequent monthly 12 13 14 installments, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(1)-(2). Most circuits agree that a released prisoner may proceed under the non-prisoner 15 provisions of the IFP statute after submitting an updated poverty affidavit, although there 16 is disagreement about whether the prisoner remains liable for the portions of the fee 17 owed prior to release. Compare DeBlasio v. Gilmore, 315 F.3d 396, 398 (4th Cir. 18 2003)(finding that “a released prisoner should not have to shoulder a more difficult 19 financial burden than the average indigent plaintiff in order to continue his lawsuit,” and 20 21 concluding that IFP status should be determined with reference to post-incarceration 22 financial circumstances); In re Prison Litig. Reform Act , 104 F.3d 1131, 1139 (6th Cir. 23 1997)(citing McGann v. Soc. Sec. Admin. Comm’r, 96 F.3d 28, 30 (2d Cir. 1996) to 24 conclude that “a released prisoner may litigate without further prepayment of fees upon 25 satisfying the poverty affidavit requirement applicable to all non-prisoners”); Brown v. 26 27 Eppler, 725 F.3d 1221, 1231 (10th Cir. 2013)(finding lower court had discretion to determine extent of prisoner’s obligation on portions of fee not paid prior to release); with 28 2 1 Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997)(indigent ex-prisoner liable for 2 portions of fee owed while incarcerated; then is subject to § 1915(a)(1)); In re Smith, 114 3 4 F.3d 1247, 1251 (D.C. Cir. 1997)(same); see also Kellogg v. California, No. C 10-05802 2011 WL 768691, at *6 (N.D. Cal. Feb. 28, 2011) (terminating plaintiff’s § 1915(b) 5 6 application before ruling on it due to plaintiff’s release, but offering him the opportunity to 7 resubmit an application under § 1915(a)(1)); but see Gay v. Tex. Dep’t of Corr., State 8 Jail Div., 117 F.3d 240, 242 (5th Cir. 1997)(finding that prisoners who have been 9 released remain subject to prepayment obligation, and requiring full payment of fee upon 10 11 release). Here, the Court finds that the approach set forth by the McGann and DeBlasio 12 13 14 courts seems most consistent with the statutory scheme: only indigent prisoners are required to prepay their fee; a released prisoner is not a prisoner, so assuming he 15 remains indigent, his obligation to pre-pay should cease as well. Therefore, the Court 16 agrees that as a non-prisoner, Plaintiff may no longer be subject to the prepayment 17 requirement. He must, however, submit an updated IFP application if he wishes to 18 19 continue to proceed in forma pauperis under § 1915(a)(1). Revocation of Plaintiff’s current IFP status, however, is not required. Other than 20 21 Plaintiff’s retention of counsel (possibly on a contingent fee basis), the court has before it 22 no evidence that Plaintiff is no longer a pauper. A trial court has “particularly broad 23 discretion” to grant or deny a prisoner-litigant pauper status. O’Loughlin v. Doe, 920 F.2d 24 614, 616 (9th Cir. 1990). 25 automatically moot just because the prisoner is subsequently released. See Moore v. 26 27 Moreover, a prisoner’s application for IFP status is not Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). However, the Court must dismiss an action if it determines that “the allegation of 28 3 1 poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A); see Thomas v. Gen. Motors Acceptance 2 Corp., 288 F.3d 305, 306 (7th Cir. 2002); Samonte v. Frank, 517 F.Supp.2d 1238, 1244 3 4 (D. Hawai’i 2007); Whitsitt v. Amazon.com, No. 2:14-cv-416 2014 WL 897044, at *1 (E.D. Cal. Mar. 6, 2014). Here, Plaintiff’s status has changed profoundly. Circumstances 5 6 that undoubtedly contributed to his impoverishment, i.e., imprisonment, no longer exist. 7 If Plaintiff wishes to continue to proceed IFP, he shall submit an application for IFP 8 status that reflects his current financial circumstances. 9 10 11 III. CONCLUSION & RECOMMENDATION Plaintiff’s IFP status should not be revoked simply because Plaintiff has been released from prison. Accordingly, the Court HEREBY RECOMMENDS that: 12 13 14 15 16 17 18 19 1) Defendants’ motion to revoke Plaintiff’s IFP status (ECF No. 68) be DENIED; 2) Plaintiff shall have thirty (30) days from the date these findings and recommendations are adopted to : a. Submit an updated financial affidavit in accordance with 28 U.S.C. § 1915(a)(1); or b. Pay his outstanding obligation on the $400 filing fee in full; and 3) Failure to submit updated financial information or pay the filing fee shall result 20 21 22 23 in dismissal of the action without prejudice for failure to prosecute and failure to obey a court order. These Findings and Recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 25 fourteen (14) days after being served with these Findings and Recommendations, any 26 27 party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 28 4 1 Recommendations.” Any reply to the objections shall be served and filed within fourteen 2 (14) days after service of the objections. The parties are advised that failure to file 3 objections within the specified time may result in the waiver of rights on appeal. 4 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 5 6 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 IT IS SO ORDERED. 9 10 Dated: June 30, 2015 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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