Makoni v. Downs

• Decision Date: 13 December 2016
• Docket Number: Civil No. 16cv2335-AJB (WVG)
• Court: U.S. District Court — Southern District of California
• Parties: ROBERT SIMBA MAKONI, Plaintiff, v. ROBERT DOWNS, et al., Defendants.

ROBERT SIMBA MAKONI, Plaintiff, v. ROBERT DOWNS, et al., Defendants.

Civil No. 16cv2335-AJB (WVG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

December 13, 2016

ORDER:

1) DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2]

2) GRANTING PLAINTIFF'S MOTION TO SUPPLEMENT THE COMPLAINT [ECF NO. 9]

3) DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER [ECF NO. 4]

4) DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 3], AND

5) DISMISSING CIVIL ACTION WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

Robert Simba Makoni ("Plaintiff"), a person detained at the Vista Detention Facility ("VDF") in Vista, California, at the time of filing, but subsequently released from custody, is proceeding pro se with a civil rights Complaint ("Compl.") pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff alleges that he was taken into custody by the San Diego County Sheriff's Department on October 23, 2015, on a probation violation warrant for extradition to Georgia, and that he was subjected to physical, mental and emotional abuse, and deliberate indifference to his serious medical needs, during his transportation to, and subsequent incarceration in, Georgia. (Compl. at 6-16.) He states that he was released from custody in Georgia on January 3, 2016, but taken into custody in San Diego County on June 9, 2016, once again on a probation violation hold for Georgia, and at the time of initiating this action was again scheduled for transportation to Georgia. (Id. at 16-18.) He names as Defendants Prisoner Transportation Services of America ("PTSA"), six PTSA employees, two Georgia police officers, and a doctor employed at the jail in Georgia where he was housed. (Compl. at 2-4.)

Plaintiff has also filed a Motion for appointment of counsel, a Motion for a temporary restraining order, and a Motion for leave to file a Supplemental Complaint. (ECF Nos. 3, 4, 9.) He seeks appointment of counsel based on the complexity of the legal issues and the fact that he is incarcerated (ECF No. 3), he seeks a restraining order preventing the Defendants from transporting him to Georgia under the same conditions he was previously transported there (ECF No. 4), and in his proposed Supplemental Complaint alleges he was again transported to Georgia on October 9, 2016, under similar circumstances, naming as additional Defendants three different PTSA employees who transported him to Georgia and two Georgia probation officers. (ECF No. 9.)

Plaintiff did not prepay the $400 civil filing fee required to commence a civil action by 28 U.S.C. § 1914(a), but has instead filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.)

I. Motion to Proceed In Forma Pauperis

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a).¹ An action may proceed despite a plaintiff's failure toprepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a "prisoner" as defined by 28 U.S.C. § 1915(h), as amended by the Prison Litigation Reform Act ("PLRA"), at the time of filing, as Plaintiff here was,² he may be granted leave to proceed IFP, but unlike non-incarcerated civil litigants, he remains obligated to pay the entire fee in installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

Thus, under the PLRA, a prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

Plaintiff was incarcerated at VDF when he filed this action, and has attached a certified prison certificate of his trust account activity as reported by VDF officials which shows average monthly deposits of $167.83, an average monthly balance of $13.42, and a $80.50 balance in the account. (ECF No. 2 at 5-6.) Thus, because he was a prisoner at the time he initiated this action, he is "required to pay the full amount of afiling fee" in order to commence this action. 28 U.S.C. § 1915(b)(1). When a prisoner files a motion to proceed IFP which shows he is financially unable to prepay the full amount of the civil filing fee required by 28 U.S.C. § 1914(a), the Court typically assesses an initial partial filing fee based on Plaintiff's average inmate trust account deposits and balances over the six-month period preceding the filing of his complaint, see 28 U.S.C. § 1915(b)(1), and thereafter directs the "agency having custody" to forward both the initial and subsequent monthly payments required "until the filing fees are paid." See 28 U.S.C. § 1915(b)(2).

However, Plaintiff's release from custody renders 28 U.S.C. § 1915(b)'s fee collection provisions unenforceable in this case; for if Plaintiff is no longer incarcerated at VSP, and he is no longer in the custody of any state or local correctional institution as his Notice of Change of Address indicates (ECF No. 7), then no inmate trust account exists from which his filing fees may be garnished and forwarded to the court. See DeBlasio v. Gilmore, 315 F.3d 396, 399 (4th Cir. 2010) (noting that after a prisoner is released, there is "no 'prisoner's account' from which to deduct . . . payments.") "Section 1915(b)(2) provides no method of remitting payments other than by deduction from a prisoner's account, and thus it does not shed any light on how payments should be paid once that prisoner is released." Id.

The Ninth Circuit has yet to decide how a released prisoner who is obligated to "pay the full amount of a filing fee" under 28 U.S.C. § 1915(b)(1) may proceed IFP after he has been released, i.e., whether he must prepay the entire civil filing fee at once, whether he may proceed pursuant to some other partial fee and/or court-ordered installment payment plan, or whether his obligation to pay the fee is waived altogether or in part by virtue of his release. See Putzer v. Attal, 2013 WL 4519351 at *1 (D. Nev. Aug. 23, 2013) (unpub.) (noting the "unresolved issue within the Ninth Circuit regarding the application of the Prison Litigation Reform Act (PLRA) pauper application requirements in cases where the prisoner is released pendente lite, i.e., during the litigation."); see also Turner v. San Diego County, 2014 WL 5800595 at *2-3 (S.D. Cal.Nov. 7, 2014) (unpub.) (noting absence of 9th Circuit authority); Patten v. Walker, 2015 WL 3623687 at *5 (E.D. Cal. June 9, 2015) (unpub.) (same).

In Putzer, U.S. District Judge Andrew P. Gordon canvassed other published federal circuit cases, noted a split, and concluded, like the Fifth, Seventh, and District of Columbia Circuits, that if an IFP application is filed by a prisoner, the "straightforward Congressional command in § 1915(b)(1)" requires that "full payment . . . is triggered upon the filing of the . . . complaint," and regardless of "how the requirement is satisfied." Id. at *1-2; citing Gay v. Texas Dept. of Corrections, 117 F.3d 240, 241-42 (5th Cir. 1997), In re Smith, 114 F.3d 1247, 1251-52 (D.C. Cir. 1997) and Robbins v. Switzer, 104 F.3d 895, 897-99 (7th Cir. 1997).

Judge Gordon further rejected the Tenth, Fourth, Sixth, and Second Circuit's contrary conclusions in Brown v. Eppler, 725 F.3d 1221, 1231 n.7 (10th Cir. 2013), DeBlasio, 315 F.3d at 397, In re Prison Litigation Reform Act, 105 F.3d 1131, 1138-39 (6th Cir. 1997) and McCann v. Commissioner, Social Security Administration, 96 F.3d 28, 29-30 (2d Cir. 1996), all holding that § 1915(b)(1)'s full fee payment requirements do not continue post-release. Instead, Judge Gordon noted that in the Ninth Circuit "even prior to the PLRA . . . district courts possessed authority under the non-PLRA-related provisions of § 1915 to require partial and/or installment payments." Putzer, 2013 WL 4519351 at *2, citing Olivares v. Marshall, 59 F.3d 109, 111 (9th Cir. 1995) ("We take this opportunity to make the apparent explicit: Courts have discretion to impose partial filing fees under the in forma pauperis statute.")

Reasoning that because "[i]n the Ninth Circuit . . . , the district court retains the discretion to order installment payments even without the specific statutory payment mechanisms otherwise applicable when the plaintiff is incarcerated," id. at *2 n.2, Putzer concludes, for reasons this Court also finds persuasive, and in the absence of other binding authority on point, that while "the amount of the initial partial payment and installment payments may be determined either from the plaintiff's prior inmate account balance and/or based on upon the plaintiff's post-release assets and income, . . . the factthat a different, but pre-existing method of enforcing the full-payment requirement of the statute must be utilized does not justify disregarding the Congressional command as to what is required." Id.

Indeed, this Court's own Local Rules governing IFP actions have long provided that "[i]n considering a non-prisoner's request to proceed in...