(PC) Stine v. Federal Bureau of Prisons, No. 1:2013cv01883 - Document 19 (E.D. Cal. 2015)
Court Description: FINDINGS And RECOMMENDATIONS To: (1) Grant Bureau Of Prisons' Request For Judicial Notice (ECF No. 15 -2; (2) Deny Bureau Of Prisons' Motion To Revoke Plaintiff's In Forma Pauperis Status (ECF No. 15 ); And (3) Deny Plaintiff's Mo tion To Declare 28 U.S.C. § 1915 Unconstitutional (ECF No. 16 ), Fourteen (14) Day Objection Deadline, signed by Magistrate Judge Michael J. Seng on 7/13/2015. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 7/29/2015. (Fahrney, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 MIKEAL STINE, 11 Plaintiff, 12 13 v. FEDERAL BUREAU OF PRISONS, 14 Defendant. 15 16 17 Case No. 1:13-cv-1883-AWI-MJS (PC) FINDINGS AND RECOMMENDATIONS TO: (1) GRANT BUREAU OF PRISONS’ REQUEST FOR JUDICIAL NOTICE (ECF No. 15-2); (2) DENY BUREAU OF PRISONS’ MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS (ECF No. 15); AND (2) DENY PLAINTIFF’S MOTION TO DECLARE 28 U.S.C. § 1915 UNCONSTITUTIONAL (ECF No. 16) 18 19 FOURTEEN (14) DAY OBJECTION DEADLINE 20 21 22 23 24 25 26 27 28 I. PROCEDURAL HISTORY Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The action proceeds on Plaintiff s First and 1 Eighth Amendment claims against John Does Nos. 1 and 2. 2 On January 23, 2015, the Federal Bureau of Prisons (“BOP”), by way of special 3 appearance, moved to revoke Plaintiff s in forma pauperis status. (ECF No. 15.) Along 4 with the motion, BOP filed a request for judicial notice. (ECF No. 15-2.) Plaintiff filed an 5 opposition. (ECF No. 17.) Defendants filed no reply. 6 Plaintiff also filed a motion to find applicable portions of 28 U.S.C. § 1915 7 unconstitutional. (ECF No. 16.) BOP opposed Plaintiff s motion. (ECF No. 18.) Plaintiff 8 filed no reply. 9 The matters are deemed submitted. Local Rule 230(l). 10 II. REQUEST FOR JUDICIAL NOTICE 11 BOP asks the Court to take judicial notice of a printout from the PACER case 12 locator listing actions involving Plaintiff. (ECF No. 15-2.) 13 Federal Rule of Evidence 201(b)(2) authorizes the Court to judicially notice facts 14 not subject to reasonable dispute, including court records, because they may be 15 accurately and readily determined from sources whose accuracy cannot reasonably be 16 questioned. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); Reyn s Pasta 17 Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). This includes the 18 Court s own records. Id. Such notice is mandatory where the requesting party supplies 19 the information to be noticed to the Court. FRE 201(c)(2). 20 Judicial notice of the PACER records included in BOP s request is proper. Fed. 21 R. Evid. 201(b)(2). Accordingly, BOP s request should be granted. 22 III. MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS 23 On February 3, 2014, the Court granted Plaintiff s motion to proceed in forma 24 pauperis. (ECF No. 8.) BOP now seeks to revoke Plaintiff s in forma pauperis status on 25 the ground that he has brought three or more actions that were dismissed as frivolous, 26 malicious, or for failure to state a claim, and he was not in imminent danger of serious 27 physical injury at the time of filing. (ECF No. 15.) Plaintiff neither concedes nor contests 28 that he has at least three “strikes” under the Prison Litigation Reform Act, but argues 2 1 that he was in imminent danger at the time his complaint was filed. (ECF No. 17.) 2 The Court concludes it is beyond dispute that Plaintiff has incurred at least three 3 “strikes” within the meaning of 28 U.S.C. §1915(g). See, e.g., Stine v. Weeks, No. CIV4 14-847-C, 2014 WL 4627240, at *2 n.1 (W.D. Okl. Sept. 16, 2014) (discussing Plaintiff s 5 extensive history of frivolous litigation). Accordingly, the issue before the Court is 6 whether Plaintiff was in imminent danger of serious physical injury at the time of filing. 7 Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). 8 A. Legal Standard 9 28 U.S.C. § 1915 permits a federal court to authorize the commencement and 10 prosecution of an action without prepayment of fees by an individual who submits an 11 affidavit demonstrating that he or she is unable to pay the fees. However, 12 [i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 13 14 15 16 28 U.S.C. § 1915(g). 17 18 The imminent danger exception applies if “the complaint makes a plausible allegation that the prisoner faced „imminent danger of serious physical injury at the time 19 of filing.” Andrews, 493 F.3d at 1055. 20 B. Plaintiff’s Complaint 21 At all times since initiating this action, Plaintiff has been incarcerated at the 22 23 24 federal Administrative Maximum Facility (ADX) in Florence, Colorado (“ADX – Florence”). His complaint concerns actions that occurred at United States Penitentiary – Atwater (“USP – Atwater”), although it is unclear whether Plaintiff ever was incarcerated 25 at that facility. 26 Plaintiff s allegations may be summarized essentially as follows: 27 In 2010, Plaintiff and other inmates, including Mathew Eyre, filed suit against 28 3 1 BOP officials. Eyre subsequently was transferred to USP – Atwater. In late 2012, 2 Defendant Does Nos. 1 and 2 questioned Eyre about his participation in the lawsuit, told 3 Eyre to drop the case, called Plaintiff a snitch, and advised Eyre to disassociate from 4 Plaintiff. 5 Word spread to Plaintiff s institution that Plaintiff is a snitch. Plaintiff was 6 assaulted by prison gang members. These gang members are armed and have vowed 7 to kill Plaintiff at the first opportunity. Parties’ Arguments 8 C. 9 BOP argues that Plaintiff s allegations of imminent danger are not plausible. BOP 10 notes that Plaintiff has raised the claim that he is subjected to threats and assaults due 11 to being labeled a snitch in at least one prior case, Pinson v. Prelip, No. 13-cv-05502, 12 2014 WL 1921249 (N.D. Cal. May 13, 2014) (alleging that Plaintiff was subjected to 13 attacks by the Mexican Mafia and Aryan Brotherhood because Pelican Bay State Prison 14 employees told inmates that he was a snitch). BOP further argues that Plaintiff has a 15 demonstrated propensity to engage in abusive litigation and to present unbelievable 16 claims. Other courts have rejected Plaintiff s allegations of imminent danger of serious 17 physical injury in a variety of cases. 18 Plaintiff argues that the cases relied on by BOP are insufficient to disprove 19 imminent danger. Plaintiff claims that he has been subject to further assaults since the 20 decisions cited by BOP. He relies on his earlier allegations that he is housed in a facility 21 containing dangerous, armed inmates who intend to kill him. 22 D. Discussion 23 Plaintiff alleges that armed gang members have vowed to kill him. His allegations 24 suggest that BOP thus far has been unable to protect him. These claims, on their face, 25 suggest imminent danger of serious physical injury. At the pleading stage, the Court is 26 required to accept these allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 27 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 28 The Court has some discretion to reject allegations that are fantastic or 4 1 delusional. See Nietzke v. Williams, 490 U.S. 319, 327-28 (1989). Additionally, the 2 Court may deny leave to proceed in forma pauperis where the claims of imminent 3 danger are ridiculous. Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003), cited with 4 approval in Andrews, 493 F.3d at 1057 n.11. The Court finds nothing to indicate 5 Plaintiff s allegations are fantastic, delusional, or ridiculous. That they frequently are 6 repeated does not make them implausible. Nonetheless, BOP refers the Court to 7 several decisions that have reached a contrary result. The Court finds these cases 8 unconvincing for the reasons discussed below. 9 First, in Prelip, Plaintiff alleged that correctional officers retaliated against him for 10 various protected activities by telling inmates at Pelican Bay State Prison that Plaintiff is 11 a snitch. 2014 WL 1921249, at *1. As in the instant case, word of Plaintiff s snitch status 12 traveled to prison gang members at Plaintiff s institution, and attacks on Plaintiff 13 followed. The District Court eventually revoked Plaintiff s in forma pauperis status on the 14 ground he had failed to allege imminent danger. Pinson v. Frisk, No. 13-cv-05502, 2015 15 WL 738253 (N.D. Cal. Feb. 20, 2015). 16 In so doing, the District Court relied on the “nexus” test set out by the Second 17 Circuit in Pettus v. Morgenthau, 554 F.3d 293, 299 (2nd Cir. 2009) (requiring a nexus 18 between the imminent danger alleged in the complaint and the claims it asserts). Frisk, 19 2015 WL 738253, at *3. This test requires the plaintiff to show that: (1) the imminent 20 danger of serious physical injury is fairly traceable to the unlawful conduct asserted in 21 the complaint; and (2) a favorable judicial outcome would redress that injury. Pettus, 22 554 F.3d at 299. 23 The District Court concluded Plaintiff s allegations failed both prongs of this test. 24 Frisk, 2015 WL 738253, at *3. First, because of the frequency with which Plaintiff has 25 raised such allegations, it could not be said that the threats at Plaintiff s current 26 institution were fairly traceable to any conduct by officers at Pelican Bay. Second, relief 27 against officers at Pelican Bay would not redress any threatened injuries at Plaintiff s 28 current institution in Colorado. The Court also concluded that Plaintiff s allegations were 5 1 fanciful and, based on the factual findings of other courts, that Plaintiff s current 2 institution is too secure to allow for the types of attacks Plaintiff alleged. Frisk, 2015 WL 3 738253, at *3. 4 As an initial matter, the Court notes that the Ninth Circuit has not adopted the 5 nexus test developed by the Second Circuit. Indeed, the Ninth Circuit has cautioned 6 against creating “any extension of § 1915(g) s provisions.” Williams v. Paramo, 775 F.3d 7 1182, 1189 (9th Cir. 2015). Perhaps for this reason, few decisions in this district have 8 applied the nexus test. Plaintiff has appealed the order applying the nexus test to his 9 own action and, at the time of issuing these findings and recommendations, his appeal 10 remains pending. Thus, it remains an open question whether the nexus test is the 11 appropriate calculus for evaluating whether Plaintiff faced imminent danger. 12 The Court further notes that the nexus test is not derived from the statutory text 13 of the Prison Litigation Reform Act, but from the law of standing and policy 14 considerations underlying the PLRA. See Pettus, 554 F.3d at 297-99. In contrast, the 15 Ninth Circuit has stressed that interpretation of § 1915(g) should be controlled by the 16 plain language of the statute. Williams, 775 F.3d at 1188. The Ninth Circuit also has 17 stressed that “§ 1915(g) concerns only a threshold procedural question,” and cautions 18 that District Courts should not “make an overly detailed inquiry into whether the 19 allegations qualify for the exception.” Andrews, 493 F.3d at 1055. The Court must 20 determine whether the Plaintiff has plausibly alleged an ongoing danger of serious 21 physical injury, not whether such a claim has merit. Id. This determination does not 22 require the Court to conduct “mini-trials over whether a prisoner has shown an imminent 23 danger.” Williams, 775 F.3d at 1190. 24 Here, the Court cannot say that Plaintiff s allegations are implausible and, when 25 taken as true, they certainly allege an imminent danger of serious physical injury. 26 Accordingly, the Court respectfully declines to follow the reasoning in Frisk. 27 BOP next refers the Court to Stine v. Federal Bureau of Prisons Designation and 28 Sentence Computation Unit, 571 Fed. Appx. 352, 353 (5th Cir. 2014) (unpublished). 6 1 There, Plaintiff was denied leave to proceed in forma pauperis on appeal. Plaintiff 2 alleged he faced attacks and a threat of serious injury from prison gangs at unspecified 3 times in the past. The Fifth Circuit rejected the contention that these alleged threats and 4 attacks constituted an imminent danger. The Fifth Circuit noted that other courts had 5 rejected similar claims of imminent danger by Plaintiff on the ground that Plaintiff is 6 incarcerated in a highly secure facility, where such assaults are unlikely to occur. Id. at 7 353-54. Additionally, although not applying the nexus test directly, the Fifth Circuit noted 8 that redress for the threats in Colorado was not possible in a suit against correctional 9 officers in Texas. Id. at 354. 10 Federal Bureau of Prisons Designation and Sentence Computation Unit bears 11 strong similarities to the case presented here, although the Court is not privy to the 12 specifics of the allegations the Fifth Circuit found insufficient. Nevertheless, the Fifth 13 Circuit apparently applied a version of the nexus test, which the Court herein declines to 14 apply for the reasons stated above. Additionally, in light of the Ninth Circuit s 15 admonishment not to engage in “mini-trials over whether a prisoner has shown an 16 imminent danger,” Williams, 775 F.3d at 1190, the Court also declines to engage in the 17 type of fact finding suggested by the Fifth Circuit. That is, the Court declines to weigh 18 the findings of other Courts regarding the security of Plaintiff s current institution against 19 Plaintiff s own allegations that he has been attacked, and is at risk of further attacks. For 20 these same reasons, BOP s citations to Pinson v. Pacheco, 397 Fed. Appx. 488, 492 21 (10th Cir. 2010); Hobbs v. Doe, No. 5:13-CT-3279-D, 2014 WL 229343, at *3 (E.D.N.C. 22 Jan. 21, 2014); and Stine v. Federal Bureau of Prisons, No. 10-cv-01652-BNB, 2010 23 WL 3276196 (D. Colo. Aug. 7, 2010), are similarly unavailing. 24 The remaining case cited by BOP, Stine v. U.S. Federal Bureau of Prisons, No. 25 11-cv-2665-LTB, 2011 WL 6119124, at *2 (D. Colo. Dec. 8, 2011), concluded that 26 Plaintiff was not in imminent danger in relation to his medical issues. The case bears no 27 relation to the allegations at issue here and is therefore inapposite. 28 7 1 E. Conclusion 2 BOP has presented evidence indicating that Plaintiff has a long history of abusive 3 and sometimes fraudulent litigation. However, Plaintiff nonetheless has alleged a threat 4 of imminent danger sufficient to proceed in forma pauperis in this action. Accordingly, 5 BOP s motion to revoke Plaintiff s in forma pauperis status should be denied. 6 IV. MOTION TO DECLARE 28 U.S.C. § 1915 UNCONSTITUTIONAL 7 Plaintiff filed a motion to declare 28 U.S.C. §§ 1915(b)(2) and (g) 8 unconstitutional. 9 10 A. 28 U.S.C. § 1915(g) 28 U.S.C. § 1915(g) is the “three strikes” provision discussed above. The United 11 States Court of Appeals for the Ninth Circuit has concluded that 28 U.S.C. § 1915(g) is 12 not unconstitutional. Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999). Further, 13 based on the recommendation herein to deny BOP s motion to revoke Plaintiff s in 14 forma pauperis status, 28 U.S.C. § 1915(g) has not inhibited Plaintiff s ability to bring 15 this action. His challenge to the constitutionality of 28 U.S.C. § 1915(g) therefore is 16 moot, and his motion should be denied. 17 B. 28 U.S.C. § 1915(b)(2) 18 Plaintiff argues that, for prisoners like himself who have filed multiple civil actions 19 in forma pauperis, 28 U.S.C. § 1915(b)(2) imposes an unconstitutional requirement that 20 he pay all of his monthly income toward filing fees. Plaintiff apparently seeks to have his 21 multiple filing fees collected sequentially, rather than simultaneously. 22 23 1. Legal Standard Prisoners granted pauper status must make an initial partial payment at the time 24 of filing, followed by monthly installments until the filing fees are paid in full. 28 U.S.C. 25 § 1915(b). The initial filing fee is charged as follows: 26 27 28 Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial 8 filing fee of 20 percent of the greater of -(A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal. 1 2 3 4 28 U.S.C. § 1915(b)(1). 5 6 After the initial partial payment, the prisoner is required to make monthly payments as follows: 7 After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid. 8 9 10 11 28 U.S.C § 1915(b)(2). 12 13 14 15 16 17 18 There is a split of authority as to the manner in which prisoners are required to pay filing fees under § 1915(b)(2).1 The Second and Fourth Circuits have held that § 1915(b)(2) requires that filing fees be collected sequentially, meaning that an indigent prisoner may be assessed no more than 20 percent of his monthly income, regardless of the number of suits filed. Whitfield v. Scully, 241 F.3d 264, 278 (2d. Cir. 2001); Torres v. O Quinn, 612 F.3d 237, 240 (4th Cir. 2010). In these Circuits, each filing fee is satisfied in the order incurred. 19 20 21 22 23 24 25 The Fifth, Seventh, Eighth, Tenth, and District of Columbia Circuits have held that § 1915(b)(2) requires an indigent prisoner to simultaneously pay 20 percent of his monthly income toward each outstanding filing fee, even if this results in 100 percent of a prisoner s monthly income being collected. Atchison v. Collins, 288 F.3d 177, 180-81 (5th Cir. 2002); Newlin v. Helman, 123 F.3d 429, 436 (7th Cir. 1997), overruled in part on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000); Lefkowitz v. CitiEquity Grp., Inc., 146 F.3d 609, 612 (8th Cir. 1998); Christensen v. Big Horn Cnty. Bd. 26 27 28 1 Additionally, this issue is presently pending before the United States Supreme Court. Pinson v. Samuels, 761 F.3d 1 (D.C. Cir. 2014), cert. granted, Bruce v. Samuels, 83 U.S.L.W. 3640 (U.S. June 15, 2015) (No. 14-844). 9 1 of Cnty. Comm rs, 374 Fed. App x 821, 833 (10th Cir. 2010) (unpublished); Pinson v. 2 Samuels, 761 F.3d 1, 8 (D.C. Cir. 2014). Although the Ninth Circuit has not addressed 3 this issue, District Courts within this Circuit also have required indigent prisoners to 4 simultaneously pay toward multiple filing fees. Hendon v. Ramsey, 478 F. Supp. 2d 5 1214, 1219 (S.D. Cal. 2007); Samonte v. Frank, 517 F. Supp. 2d 1238, 1243 (D. Haw. 6 2007). 7 8 a. Sequential Approach The Second Circuit has found that the “text and structure of § 1915 fail to provide 9 a definitive answer” as to whether PLRA filing fees should be collected sequentially or 10 simultaneously. Whitfield, 241 F.3d at 276. Indeed, the Second Circuit concluded that 11 § 1915(b)(2) plausibly could be read to require either simultaneous or sequential 12 collection of filing fees. Id. at 277. Nevertheless, the Second Circuit held that the statute 13 requires sequential collection of filing fees because “simultaneous collection of multiple 14 encumbrances could potentially expose 100 percent of a prisoner s income to 15 recoupment,” which “arguably could pose a serious constitutional quandary as to 16 whether an unreasonable burden has been placed on the prisoner s right of meaningful 17 access to the courts.” Id. 18 The Fourth Circuit concluded that the PLRA is silent as to the manner in which 19 filing fees should be collected. Torres, 612 F.3d at 244. However, the Fourth Circuit 20 interpreted the plain language of § 1915(b)(2) as imposing a 20 percent monthly ceiling 21 on the amount that may be deducted from a prisoner s account to pay for any and all 22 court fees. Id. at 245-46. The Court found that this interpretation comported with 23 Congressional intent and staved off grave “access to courts issue[s] of constitutional 24 dimensions.” Id. at 246-48. 25 26 b. Simultaneous Approach The Seventh Circuit noted that § 1915 “does not tell us whether the 20 percent- 27 of-income payment is per case or per prisoner.” Newlin, 123 F.3d at 436. However, the 28 court concluded that multiple filing fees must be collected from an inmate s trust account 10 1 simultaneously because sequential collection would allow a prisoner to “file multiple 2 suits for the price of one, postponing payment of fees for later-filed suits.” Id. The court 3 further noted that the PLRA was “designed to require the prisoner to bear some 4 marginal cost for each legal activity,” a goal which would not be achieved “[u]nless 5 payment begins soon after the event that creates liability.” Id. The Eighth Circuit also 6 adopted this approach, echoing the Seventh Circuit s statements regarding the policies 7 underlying the PLRA. Lefkowitz, 146 F.3d at 612. 8 The Fifth Circuit reached the same result, although based on a more detailed 9 review of the statutory language. Atchison, 288 F.3d at 180-81. The Fifth Circuit 10 concluded that § 1915(b)(1) and § 1915(b)(2) were meant to be read together, and 11 together unambiguously required the simultaneous collection of multiple filing fees. Id. 12 at 181. The court rejected the notion that the simultaneous approach presented 13 constitutional concerns because prisoners are not forced to choose between the 14 necessities of life and filing a lawsuit. Id. 15 The Tenth Circuit likewise has concluded that, when read as a whole, the plain 16 language of § 1915 requires the simultaneous collection of multiple filing fees. 17 Christensen, 374 Fed. App x at 830-31. The Tenth Circuit noted that this interpretation 18 “furthers the overarching purpose of imposing the installment-payment obligations 19 uniquely on prisoners, which . . . is to reduce frivolous prisoner litigation by making all 20 prisoners seeking to bring lawsuits or appeals feel the deterrent effect created by 21 liability for filing fees.” Id. at 831 (internal quotation marks and citation omitted). The 22 court acknowledged, but rejected, the constitutional concerns raised by the Second 23 Circuit. Id. at 832. 24 The D.C. Circuit also has concluded that, “[t]aken as a whole, the language and 25 operation of § 1915 indicate that its provisions apply to each action or appeal filed by a 26 prisoner; and subsection (b)(2), governing the payment of fees in installments, is no 27 exception. Pinson, 761 F.3d at 8. The D.C. Circuit also concluded that § 1915(b)(4), 28 providing that a prisoner may not be prohibited from bringing suit based on a lack of 11 1 assets, along with the requirement that prison officials afford inmates adequate food, 2 clothing, shelter, and medical care, allay any constitutional concerns. Id. at 9-10. Finally, 3 the court concluded that the simultaneous approach comports with the purposes of the 4 PLRA, particularly that of deterring prisoners from filing frivolous lawsuits. Id. at 10. 5 6 2. Discussion It is a “fundamental canon of statutory construction that the words of a statute 7 must be read in their context and with a view to their place in the overall statutory 8 scheme.” Davis v. Michigan Dep t of Treasury, 489 U.S. 803, 809 (1989). Here, the 9 language and structure of § 1915(b) indicate that the installment payment requirement 10 applies to each action or appeal filed by a prisoner, and therefore that filing fees should 11 be withdrawn from prisoner-plaintiffs trust accounts simultaneously. 12 First, the plain language of 28 U.S.C. § 1915(b)(1) is read by this Court as calling 13 for assessment of the initial partial filing fee each time a prisoner “brings a civil action or 14 files an appeal”: “[I]f a prisoner brings a civil action or files an appeal in forma pauperis, 15 the prisoner shall be required to pay the full amount of a filing fee. The court shall . . . 16 collect, as a partial payment of any court fees required by law, an initial partial filing 17 fee . . . .” 28 U.S.C. § 1915(b)(1). 18 Subsection (b)(2) immediately follows this provision and states: “[a]fter payment 19 of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 20 percent of the preceding month's income.” 28 U.S.C. § 1915(b)(2) (emphasis added). 21 Because the initial filing fee required by subsection (b)(1) is here interpreted to apply on 22 a per-case basis, it follows that subsection (b)(2) s installment provision likewise applies 23 on a per-case basis. 24 Other provisions of § 1915 can be read to support this interpretation. For 25 example § 1915(a)(2) requires a prisoner to submit a certified copy of his or her trust 26 fund account statement for the 6-month period immediate preceding the filing of the 27 complaint or notice of appeal. Because the statement must reflect the 6-month period 28 preceding filing, the requirement necessarily applies each time the prisoner files a 12 1 complaint or notice of appeal. Additionally, Subsection (e)(2) permits the court to 2 dismiss a case at any time if it is frivolous, malicious, or fails to state a claim. And, 3 subsection (f)(1) allows the court to render judgment for costs “at the conclusion of the 4 suit or action.” Given that these provisions impose requirements or obligations for each 5 civil action or appeal a prisoner files, it would be incongruous to conclude that 6 subsection (b)(2) – and only subsection (b)(2) – imposes a global cap on monthly 7 installment payments for all of the cases filed by a prisoner. 8 Additionally, the simultaneous approach comports with the PLRA s primary 9 purpose. The PLRA was enacted to “curtail the extraordinary costs of frivolous prisoner 10 suits and minimize such costs to taxpayers.” Rodriguez, 169 F.3d at 1181. “Requiring 11 prisoners to pay filing fees for suits will force them to go through the same thought 12 process non-inmates go through before filing a suit, i.e., is filing this suit worth the 13 costs?” Id. 14 Finally, simultaneous collection of multiple filing fees does not raise constitutional 15 concerns. “Because prisoners are in the custody of the state and accordingly have the 16 „essentials of life provided by the government,” the simultaneous collection of filing fees 17 does not require an indigent prisoner to “make the choice between his lawsuit and the 18 necessities of life,” even if 100% of the prisoner s monthly income is collected in filing 19 fees. See Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir. 2002). Nor does the 20 sequential collection of filing fees interfere with a prisoner s access to the courts. “In no 21 event shall a prisoner be prohibited from brining a civil action or appealing a civil or 22 criminal judgment for the reason that the prisoner has no assets and no means by 23 which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4). Moreover, inmates 24 must be provided, at government expense, with “paper and pen to draft legal 25 documents, with notarial services to authenticate them, and with stamps to mail them.” 26 Bounds v. Smith, 430 U.S. 817, 824-25 (1977). Thus, even if 100% of Plaintiff s monthly 27 income is taken for the simultaneous collection of multiple filing fees, neither the 28 necessities of life nor access to the courts will be denied him. 13 1 2 3. Conclusion Based on the foregoing, the Court concludes that 28 U.S.C. § 1915(b)(2) 3 requires that multiple filing fees be collected simultaneously, and that Plaintiff s 4 constitutional concerns are overstated. Accordingly, Plaintiff s motion to declare 28 5 U.S.C. § 1915(b)(2) unconstitutional should be denied. 6 V. CONCLUSION AND RECOMMENDATION 7 Based on the foregoing, the Court finds that the PACER records submitted by 8 BOP are the proper subject of judicial notice. Accordingly, it is HEREBY 9 RECOMMENDED that BOP s request for judicial notice (ECF No. 15-2) be GRANTED. 10 The Court further finds that Plaintiff s complaint plausibly alleged that Plaintiff 11 was in imminent danger of serious physical injury at the time of filing. Accordingly, it is 12 HEREBY RECOMMEDED that BOP s motion to revoke Plaintiff s in forma pauperis 13 status (ECF No. 15) be DENIED. 14 Because the Court recommends that BOP s motion to revoke Plaintiff s in forma 15 pauperis status be denied, it is FURTHER RECOMMENDED that Plaintiff s motion to 16 declare 28 U.S.C. § 1915(g) unconstitutional (ECF No. 16) be DENIED as moot. Lastly, 17 the Court concludes that the simultaneous collection of filing fees under 28 U.S.C. 18 § 1915(b)(2) does not raise constitutional concerns. Accordingly, it is FURTHER 19 RECOMMENDED that Plaintiff s motion to declare 28 U.S.C. § 1915(b)(2) 20 unconstitutional (ECF No. 16) be DENIED. 21 These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 23 Within fourteen (14) days after being served with the findings and recommendations, 24 the parties may file written objections with the Court. The document should be 25 captioned “Objections to Magistrate Judge s Findings and Recommendations.” A party 26 may respond to another party s objections by filing a response within fourteen (14) days 27 after being served with a copy of that party s objections. The parties are advised that 28 failure to file objections within the specified time may result in the waiver of rights on 14 1 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 2 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 6 IT IS SO ORDERED. Dated: July 13, 2015 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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