Wiideman v. Harper, CV-N-88-192-ECR.

• Decision Date: 02 November 1990
• Docket Number: No. CV-N-88-192-ECR.,CV-N-88-192-ECR.
• Citation: 754 F. Supp. 808
• Parties: Randal N. WIIDEMAN, Plaintiff, v. Michael J. HARPER, et al., Defendants.
• Court: U.S. District Court — District of Nevada

754 F. Supp. 808

Randal N. WIIDEMAN, Plaintiff, v. Michael J. HARPER, et al., Defendants.

No. CV-N-88-192-ECR.

United States District Court, D. Nevada.

November 2, 1990.

Randal N. Wiideman, Ely, Nev., in pro. per.

Brian McKay, Atty. Gen., Carson City, Nev., for defendants.

ORDER

EDWARD C. REED, Jr., Chief Judge.

Plaintiff filed this action in forma pauperis on October 26, 1988, asserting claims under 42 U.S.C. § 1983 alleging deprivations of rights secured by the First and Fourteenth Amendments to the United States Constitution. Plaintiff, an inmate in the Nevada Department of Prisons, contends that defendants denied him possession of a typewriter for doing legal work for other prisoners.

On February 14, 1990, defendant Robert Bayer filed a Motion to Dismiss the Action or in the alternative, a Motion for Order to Plaintiff to Pay Fees and Costs. Defendant asserts that plaintiff has recently received $1,000.00 from a settlement in regard to eleven pending actions against various defendants. Defendant contends that the present action should be dismissed pursuant to 28 U.S.C. § 1915(d) or that plaintiff should be required to reimburse the Government for fees and costs that were previously waived in accordance with his leave to proceed in forma pauperis.

Plaintiff filed a response on February 21, 1990, asserting that the money he received in the settlement was paid directly to his mother, who is allegedly destitute and financially dependent upon social security as her sole source of income. Thus, plaintiff argued he was still a pauper. The United States Magistrate Phyllis Halsey Atkins issued an order on June 7, 1990 (document # 44) finding that plaintiff "controlled disbursement of the funds" and "had the authority to substantially change his economic status, but instead chose to forego having the money deposited into his inmate account."

The Magistrate determined that plaintiff should have an opportunity to pay the costs related to the action as though he had not been granted leave to proceed in forma pauperis and that the failure to pay these costs may result in the dismissal of the action. The Magistrate ordered plaintiff to pay the costs related to the action within 30 days of the date of the order.

On August 9, 1990, after plaintiff refused to pay the ordered costs, the Magistrate filed a Report and Recommendation (document # 45) recommending that defendant's motion to dismiss be granted. Neither plaintiff nor defendants have filed any objections to the Magistrate's Report and Recommendation.

28 U.S.C. § 1915(a) provides: "Any court ... may authorize the commencement, prosecution or defense of any suit ... without prepayment of fees and costs ... by a person who makes affidavit that he is unable to pay such costs ..." Under this statute, the court has the discretion to require a prisoner plaintiff granted forma pauperis status at the time of filing the suit, to pay filing fees once "financial circumstances change:"

The use of the word `prepayment' in subsection (a) indicates that Congress did not intend to waive forever the payment of costs ... It is clear that § 1915 contemplates the postponement of fees and costs for litigants who are granted in forma pauperis status.

Flint v. Haynes, 651 F.2d 970, 972 (4th Cir.1981).

A court is not bound by its grant of forma pauperis status to a plaintiff:

This court is not bound by plaintiff's economic status on the date of filing ... Rather, the court should take into account all relevant changes in plaintiff's financial condition, both prior to and subsequent to the filing of the suit.

Carter v. Telectron, Inc., 452 F.Supp. 939, 942 (S.D.Tex.1976). Thus, this court may retroactively require plaintiff to pay fees and costs if his financial situation has improved.

Under § 1915(d), the court may "dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." This court does not purport to pass on the merits of plaintiff's case at this time. We briefly note that under § 1915(e), should the Magistrate allow plaintiff to proceed in forma pauperis and should plaintiff ultimately litigate his claim unsuccessfully, the court could impose costs at that time, at its discretion, based on the frivolity or maliciousness of his claim.

Having concluded that plaintiff could lose his forma pauperis status, we now consider plaintiff's ability to pay fees and costs. One court held that a prisoner with forma pauperis status who acquired $5486.76 after filing his case, lost his status just because he acquired enough money to pay the filing fee, despite stating under oath that he used the money to support an ill wife and daughter. Carter, supra. "It is of little moment to this Court that plaintiff has decided his funds must be used for other purposes or even that he has exhausted the court award ..." Id. at 999. The Magistrate followed Carter.

We do not adopt such a rigid view. First, § 1915 does not require a plaintiff to choose between paying a filing fee and supporting himself or his family. Lumbert v. Illinois Dep't of Corrections, 827 F.2d 257, 260 (7th Cir.1987). While the Carter and Lumbert courts held how the prisoner spent his money irrelevant, the court in In re Epps, 888 F.2d 964 (2nd Cir.1989), disagreed, noting "We do not agree with Judge Posner that the amount of a ... fee is appropriate simply because a prisoner has the funds to pay it but prefers to devote his limited resources to commissary purchases that may seem readily dispensable to one not in confinement." Id. at 968. Thus, the Epps court also rejected the rigid Carter view. Second, courts have recently begun to consider many factors in determining a prisoner's ability to pay, and have often resolved the issue by requiring the prisoner to pay only a part of the normal fees.

Factors courts look to in deciding whether a plaintiff may proceed in forma pauperis include: whether the plaintiff would have to spend his last dollar on filing fees (Carter, supra, at 943) and what expenses the plaintiff has (Epps, supra, at 968). Factors specifically related to prisoner plaintiffs include: how much money the prisoner has in his inmate account (Id. at 967-68) and how many suits the prisoner has pending in federal court, which bears on plaintiff's good faith in filing the suit (Carter, supra, at 999; Collier v. Tatum, 722 F.2d 653, 657 (11th Cir.1983)).

In Collier, plaintiff prisoner had $140 in his inmate account. The court ordered plaintiff to pay a filing fee or explain why he could not. Plaintiff responded that his account had dropped to under $1. At the court's request, plaintiff could offer no explanation for this decrease. Since the court did not know whether plaintiff intentionally decreased the balance in the account to avoid court costs, it held that plaintiff had to pay the fee or face dismissal of the case.

In this case, plaintiff acquired $1000.00 and allegedly gave it to his mother for her support. The court below adopted the view of the Carter court and held that plaintiff must pay the full filing fee of $131.40 since he "controlled the disbursement of the funds" and "chose to forego having the money deposited into his inmate account." The Magistrate did not consider the merits of plaintiff's claim that he used the money for a "valid" purpose.

Second, the Magistrate did not consider applying a partial filing fee. While the Ninth Circuit has not considered the issue, "All circuits that have considered the issue, have upheld the authority of district courts to require prisoners to pay partial filing fees." Epps, supra, at 967. While no uniform test exists to determine the amount of a partial fee, courts have given judges wide discretion in determining a proper fee.

The in forma pauperis statute allows potential plaintiffs unable to afford filing fees and costs, to proceed without paying such fees and costs. However, on its face, the statute does not provide for the payment of partial filing fees. Several federal circuits have accepted partial filing fees to discourage potential prisoner plaintiffs from filing meritless suits just to harass prison officials and the courts. On the other hand, a partial fee allows potential plaintiffs with limited resources to pursue claims they believe meritorious. Judge Posner of the 7th Circuit notes that even a modest fee will weed out claims with no merit, filed by plaintiffs with nothing to lose. In Lumbert, supra, Judge Posner considered a prisoner's claim that a partial filing fee based on "50% of the prisoner's average monthly income for the six months immediately preceding the submission of the petition" was erroneous. The 7th Circuit held that this formula was not an abuse of discretion. Judge Posner noted that imposing some cost on a prospective plaintiff will ensure that the plaintiff believes his claim has some merit and will not file a suit just to harass:

We want the putative plaintiff to think about the case and not just file reflexively; having to make even a modest monetary outlay may help focus his thinking ... It is proper that prisoners be made to think twice — by monetary exactions well within their ability, limited as it is, to pay — about bringing lawsuits that have no significant prospect of obtaining any worthwhile relief.

Id. at 259-60.

The partial fee issue is especially pervasive in the context of potential prisoner plaintiffs, who almost always have limited financial resources, but plenty of time to file civil rights suits. While § 1915 does not specifically address partial filing fees, the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th and 11th Circuits have upheld them. In re Stump, 449 F.2d 1297 (1st Cir.1971); In re Epps, 888 F.2d 964 (2d Cir.1989); Bullock v. Suomela, 710 F.2d 102 (3rd Cir.1983); Evans v. Croom, 650 F.2d 521 (4th Cir.1981); Smith v. Martinez, 706 F.2d 572 (5th Cir. 1983); Lumbert, supra, (7th Cir.); In re Williamson, 786 F.2d 1336 (8th Cir.1986); Sellers v. United...