Taft v. Sassman

• Decision Date: 06 February 2012
• Docket Number: No. C11-4060-MWB,C11-4060-MWB
• Parties: DAVID L. TAFT, JR., Plaintiff, v. STEVE SASSMAN, STEVE MCQUEEN, MICHAEL RYAN, Defendants.
• Court: U.S. District Court — Northern District of Iowa

DAVID L. TAFT, JR., Plaintiff,

v.STEVE SASSMAN, STEVE MCQUEEN, MICHAEL RYAN, Defendants.

No. C11-4060-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

Date: February 6, 2012

INITIAL REVIEW ORDER

This matter is before the court on the plaintiff's application to proceed in forma pauperis. The plaintiff filed such application on June 24, 2011. Along with his application to proceed in forma pauperis, the plaintiff submitted a complaint pursuant to 42 U.S.C. § 1983 and an application for appointment of counsel.

I. IN FORMA PAUPERIS STATUS UNDER 28 U.S.C. § 1915

The plaintiff currently is a patient at the Civil Commitment Unit for Sexual Offenders ("CCUSO") in Cherokee, Iowa.¹ A patient is not a prisoner within the meaning of the Prison Litigation Reform Act ("PLRA"). See Kolocotronis v. Morgan, 247 F.3d 726 (8th Cir. 2001) (concluding a mental patient is not a prisoner within the meaning ofthe PLRA and, therefore, is not subject to inmate-accounting procedures or three strikes rule); see also Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000) (finding petitioner who was civilly committed under California's Sexually Violent Predators Act was not "prisoner" subject to PLRA's financial reporting and exhaustion requirements). Nonetheless, it is appropriate for the court to apply 28 U.S.C. § 1915(a)(1) because this subsection has been applied by courts in their review of applications of non-prisoners as well as prisoners.

A court may permit a party to proceed with litigation in forma pauperis, that is, "without prepayment of fees or security therefor," if the party submits an affidavit that shows the inability "to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). When ruling on a 28 U.S.C. § 1915(a)(1) application, three general principles apply. First, proceeding in forma pauperis in a civil case is a privilege or favor granted by the government. Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 198, 113 S. Ct. 716, 121 L. Ed. 2d 656 (1993). Second, the statute reads that the court "may authorize the commencement" of an action. 28 U.S.C. § 1915(a)(1). The grant, denial, or other decision concerning an in forma pauperis application requires the court to exercise discretion. Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992); see also Lee v. McDonald's Corp., 231 F.3d 456, 458 (8th Cir. 2000) (explaining the purpose of 28 U.S.C. § 1915 and stating the decision of whether to grant or deny in forma pauperis status under 28 U.S.C. § 1915 is discretionary). Third, the ability to pay does not require that plaintiffs contribute their "last dollar" or "make themselves and their dependents wholly destitute." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S. Ct. 85, 93 L. Ed. 43 (1948).

Here, the plaintiff states in his application to proceed in forma pauperis that he receives payment from the CCUSO, receives $12.00 every two weeks, does not have any savings or checking accounts and does not own any other valuable property. Given the statements that the plaintiff made in his application to proceed in forma pauperis, the court is satisfied that the plaintiff's allegation of poverty is true. See Lee, 231 F.3d at 458-59(stating a court must determine whether the "allegation of poverty is untrue" when it assesses the affidavit supporting an application to proceed in forma pauperis); see also Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (concluding the requirements of 28 U.S.C. § 1915 were met because plaintiff received public assistance income of $222.00 per month, had checking account balance of less than $60.00, owned an automobile on which he owed $3600.00, and had other debts totaling $10,000.00); cf. Marceaux v. Democratic Party, 79 F. App'x 185, 186 (6th Cir. 2003) (concluding the district court did not abuse its discretion when it determined plaintiff could afford to pay the filing fee without undue hardship because he has no room and board expenses, owns a car, and spends the $250.00 earned each month selling plasma on completely discretionary items). Accordingly, the plaintiff's application to proceed in forma pauperis shall be granted. See 28 U.S.C. § 1915. The clerk's office shall file the complaint without the prepayment of the filing fee.

Although it agrees that the granting of in forma pauperis status is appropriate in this case, the court finds that requiring patients to submit partial payments or installment payments of the filing fee is permissible and desirable.

The ordering of a partial payment or an installment payment for court fees fits within the [language of 28 U.S.C. § 1915. Subsection (a) of 28 U.S.C. § 1915] does not say that upon granting in forma pauper status, court fees need not be paid or that they are remitted or otherwise waived. Instead, [subsection (a)] merely authorizes commencement 'without prepayment' if the applicant 'is unable to pay such fees.' This conveys the sense that the court may authorize the filing of an action without prepayment and look to cash flow and assets in order to secure post-payment.²

White ex rel. Diggs v. Barnhart, 2002 U.S. Dist. LEXIS 14528, *5, 2002 WL 1760980 (M.D. N.C. 2002). Like an inmate at a prison, a patient with a steady income stream may not be able to make full payment at a particular time but may have the ability to pay over a period of time. Where patients have accounts and are given an allowance over a set period of time, the court deems it appropriate to collect partial payments or installment payments of the filing fee.

From the plaintiff's pleadings and from additional information obtained by the court, it is clear that patients at the CCUSO have accounts which are managed by staff, and all of the patients at the CCUSO are given an allowance. Because staff at the CCUSO are able to control the accounts of patients, the court believes it is appropriate to collect a filing fee based on or modeled after the system laid out in 28 U.S.C. § 1915(b). Based on the statements that the plaintiff made and the documents he submitted, the court finds that the initial partial filing fee is $4.80. See id. The plaintiff shall submit $4.80 by no later than February 29, 2012. Id. If necessary, the plaintiff may request in a written motion an extension of time to pay the initial partial filing fee. Additionally, the plaintiff is directed to submit monthly payments of 20 percent of the preceding month's income credited to his account until the $350.00 filing fee is paid. Cf. 28 U.S.C. § 1915(b)(2). The CCUSO is directed to forward payments from the plaintiff's account to the clerk's office each time the amount in the account exceeds $10 until the filing fee is paid. Id.

II. APPOINTMENT OF COUNSEL

Appointment of counsel is based on multiple factors, including the complexity of the case, and, although the court does appoint attorneys in actions that arise under 42 U.S.C. § 1983, it is not required to appoint an attorney. See Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (setting forth factors to be considered for appointment of counsel in civil case); Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (same); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985) (stating an indigent litigant enjoys neither a statutory nor a constitutional right to have counsel appointed in a civil case). Given the record, the court does not believe that the assistance of counsel is warranted. Accordingly, the application for appointment of counsel shall be denied.

III. STANDARD OF REVIEW

A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam); Smith v. St. Bernards Reg'l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged are clearly baseless, they must be weighed in favor of the plaintiff. Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992). A court, however, can dismiss at any time a complaint filed in forma pauperis if the complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim is "frivolous" if it "lacks an arguable basis in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); accord Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir. 1994). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Accordingly, a court may review the complaint and dismiss sua sponte those claims that fail "'to raise a right to relief above the speculative level. . . .'", see Parkhurstv. Tabor, 569 F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that are premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490 U.S. at 325. See, e.g., Denton v. Hernandez, 504 U.S. at 27 (considering frivolousness); Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may dismiss an action if an affirmative defense exists).

IV. COMPLAINT

The plaintiff, proceeding pro se, submitted a complaint under 42 U.S.C. § 1983 to redress issues that are related to constitutional violations. Jurisdiction appears to be predicated on 28 U.S.C. § 1343(a)(3). Under 28 U.S.C. § 1391(b), venue appears proper.

In his complaint and the documents he submitted in support of it, the plaintiff makes clear that he is dislikes the fact that he received an incident or behavior report for lying and inciting disruptiveness and, more importantly, that the defendants lowered him from treatment level three to...