Prison Litigation Reform Act, In re
| Citation | 105 F.3d 1131 |
| Decision Date | 04 February 1997 |
| Docket Number | No. 97-01,97-01 |
| Parties | In re PRISON LITIGATION REFORM ACT. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
By enacting the Prison Litigation Reform Act, Pub.L. No. 104-134, §§ 801-10, 110 Stat. 1321 (1996), Congress has changed the scheme by which courts are to process requests for pauper status. No longer do courts first focus on the merits of a prisoner's complaint. Rather, it is the prisoner's financial status that the courts must initially examine. Pauper status for inmates, as we previously knew it, no longer exists. All prisoners while incarcerated must now pay the required filing fees and costs. When an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan. Prisoners are no longer entitled to a waiver of fees and costs. Therefore, to assure uniformity throughout the Sixth Circuit in the implementation of the Prison Litigation Reform Act, I am issuing this administrative order under my authority as Chief Judge until such time as panels of this court have the opportunity to address the numerous issues raised by the Act. This administrative order does not apply to cases filed under 28 U.S.C. § 2241, 28 U.S.C. § 2254, 28 U.S.C. § 2255, nor to original actions before the court of appeals.
When a prisoner files a complaint in the district court, the inmate must either pay the entire filing fee, or request leave to proceed in forma pauperis "without prepayment of fees or security therefor" under 28 U.S.C.A. § 1915(a)(1). If the inmate tenders the filing fee, the complaint is filed. Then, before service of process is made on the opposing parties, the district court must screen the case under the criteria of 28 U.S.C.A. § 1915(e)(2) and 28 U.S.C.A. § 1915A. The screening process must be in compliance with Section IV of this order.
If the inmate files a complaint and seeks pauper status, the prisoner must file either Form 4 from the Appendix of Forms found in the Federal Rules of Appellate Procedure, or an affidavit which contains the identical information requested in Form 4. Although Form 4 does not satisfy the exact requirements of the statute, proposed amendments necessary to bring the Form into compliance with the Act are awaiting final approval. For administrative expediency, the present Form 4 will suffice for pauper requests. In addition to the affidavit, the prisoner must file a certified copy of a prison trust account statement showing the activity in the inmate's prison account for the previous six months. 28 U.S.C.A. § 1915(a)(2). By filing the complaint, the prisoner waives any objection to the fee assessment by the district court. Furthermore, the prisoner waives any objection to the withdrawal of funds from the trust account by prison officials to pay the prisoner's court fees and costs. Prisoners have a duty to cooperate during the litigation. Ballard v. Burrage, 97 F.3d 382, 383 (10th Cir.1996) (order). Payment of litigation expenses is the prisoner's responsibility. Once the complaint, affidavit of indigency, and trust account statement have been filed, the district court must issue the fee assessment as required under Section III and conduct the screening procedure set forth in Section IV.
If an inmate not paying the full filing fee fails to provide an affidavit of indigency or trust account statement, the district court shall notify the prisoner of the deficiency and the prisoner shall have thirty (30) days from the date of the deficiency order to correct the error or pay the full filing fee. If the prisoner does not comply with the district court's directions, the district court shall presume that the prisoner is not a pauper, and assess the inmate the full amount of fees. The district court must then order the case dismissed for want of prosecution. If the case is dismissed under these circumstances, it will not be reinstated to the district court's active docket despite the payment of filing fees.
A prisoner may seek leave to extend the thirty (30) day time period to correct any filing deficiency regarding pauper status. The district court may, in its discretion, grant such an extension for up to thirty (30) days as long as the inmate files the extension motion within thirty (30) days after the district court files the order of deficiency. The extension motion must be filed within thirty (30) days of the order; otherwise the motion may not be granted unless the prisoner makes an affirmative showing that he or she did not receive the deficiency order within the thirty (30) days. If such a showing is made in a notarized statement or a declaration complying with 28 U.S.C. § 1746 and setting forth the date the inmate received the notice, then the district court may, in its discretion, grant an additional thirty (30) days from the date of the filing of the extension order to allow the prisoner to correct the deficiency. The extension motion is deemed filed when the inmate gives the document to prison officials to be mailed. See Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988). When the inmate places the motion in the prison mail system, the inmate must provide a notarized statement or declaration with the motion complying with 28 U.S.C. § 1746, setting forth the date of deposit, and stating that first class postage was prepaid. This declaration assures the court that the documents were timely given to prison officials.
If the prisoner is without any financial resources as evidenced by the affidavit of indigency and trust account statement, under § 1915(b)(4) the district court must allow the case to proceed to the screening process. Although the statute permits a prisoner to avoid even partial payment of the filing fee at the commencement of the action, the district court is still required to impose an initial partial filing fee under § 1915(b)(1) and, when funds become available, the prisoner must pay the initial partial filing fee. The statute does not relieve the prisoner from paying the initial partial filing fee. The payment is simply delayed until funds become available.
Even if the account is under ten dollars ($10), prison officials must still forward payments to the district court to pay the initial filing fee. The ten dollar ($10) rule of § 1915(b)(2) is applicable to fees and costs due only after the initial filing fee is paid. Once the initial filing fee is paid in full, the ten dollar ($10) and twenty percent (20%) requirements of § 1915(b)(2) become applicable. This process will prevent the problem of inmates keeping only minimum balances in their prison accounts to avoid paying any portion of the filing fee. The payments must be made even if the final judgment and appeal occurred several years before the deposit of funds.
The key to the assessment procedure is the trust account. As the balance in the account can literally change on a daily basis, the first issue which must be addressed is what date controls for purposes of § 1915(b)(1). Because the trust account is so fluid, the date the complaint or the notice of appeal is filed with the clerk of the district court will be the controlling date for the computation of time under § 1915(b)(1). As both of these dates are certain and within the immediate knowledge of the district court; the date these documents are filed in the district court is thus the easiest and most logical date to use. See also 28 U.S.C.A. § 1915(a)(2) (). Although courts could use the date the prisoner mails the complaint or notice of appeal to the district court, see Houston, 487 U.S. at 270, 108 S.Ct. at 2382, this option would cause confusion and delay in the assessment process as many prisoners do not provide a written declaration as to when documents are given to prison officials for mailing. If courts accepted the date of mailing, the district courts would waste needless hours adjudicating disputes concerning when the documents were mailed.
The fluctuating nature of trust funds makes it difficult to keep the information in the trust account summaries current for mailing to the district courts. If a district court decides to make an assessment computation, prison officials should supply the district court with the necessary financial records so the district court may make the required assessment. If a district court chooses to calculate the assessment, inmates could constantly argue that the assessments were based on stale information. This process would create needless litigation over a few pennies. The solution to this problem is to have the custodian of the account do the computation and then send the money to the district court. To accomplish this goal, the district courts may issue an order containing language similar to the following:
Pursuant to 28 U.S.C.A. § 1915(b)(1), the custodian of [prisoner's name] inmate trust account at the institution where [he or she] now resides is directed to submit to the Clerk of the United States District Court for the [Eastern, Western, Northern, Southern, Middle] District of [State], as an initial partial payment, twenty percent (20%) of the greater of:
(a) the average monthly deposits to the inmate trust account; or
(b) the average monthly balance in the inmate trust account, for the six (6) months immediately preceding the filing of [the complaint or notice of appeal] on [date].
After full payment of the initial partial filing fee, the custodian shall submit twenty percent (20%) of [prisoner's name] preceding monthly income credited to the account, but only...
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