(PC) Howard v. Bailey

• Court: District Court, E.D. California
• Decided: January 17, 2025
• Docket: 1:24-cv-00897
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KARLIS RUBENS HOWARD, Case No. 1:24-cv-00897-HBK (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO PAY BALANCE OF FILING FEE OR FILE 13 v. UPDATED FINANCIAL INFORMATION

14 PENNER, et al., FEBRUARY 21, 2025 DEADLINE 15 Defendants.

16 17 18 On January 13, 2025, Plaintiff Karlis Rubens Howard, who is proceeding pro se, filed a 19 Notice of Change of Address indicating he was recently released from CDCR custody.1 (See 20 Doc. No. 14). Because Plaintiff initiated this action while a prisoner and was granted leave to 21 proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915 (Doc. No. 4), he is “required to pay 22 the full amount of a filing fee” under the Prison Litigation Reform Act. 28 U.S.C. § 1915(b)(1). 23 Based on Plaintiff’s “certified copy of the trust fund account statement (or institutional 24 equivalent) for . . . the 6-month period immediately preceding the filing of the complaint,” 28 25 U.S.C. § 1915(a)(2), the Court granted Plaintiff IFP, assessed the full $350.00 filing fee, 2 directed 26 1 The Court also independently has confirmed that Plaintiff is no longer in CDCR custody. See 27 https://ciris.mt.cdcr.ca.gov/search (last visited January 17, 2025); see Pacheco v. Diaz, 2019 WL 5073594, at *2 (E.D. Cal. Sept. 4, 2019) (taking judicial notice of CDCR’s Inmate Locator system). 28 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 1 the “agency having custody” over Plaintiff to forward to the Clerk of Court both the initial, and 2 any subsequent monthly payments required “until the filing fees are paid,” in full. (Doc. No. 4). 3 See § 1915(b)(2); see also Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005); Bruce v. 4 Samuels, 577 U.S. 82, 84 (2016). 5 Due to Plaintiff’s release, the fee collection provision is now unenforceable, and the Court 6 no longer has the means to collect the fees owed by Plaintiff. See DeBlasio v. Gilmore, 315 F.3d 7 396, 399 (4th Cir. 2010) (noting that, after a prisoner is released, there is “no ‘prisoner’s account’ 8 from which to deduct . . . payments”). 9 Although the Ninth Circuit has yet to decide how a released prisoner who is obligated to 10 “pay the full amount of a filing fee” under 28 U.S.C. § 1915(b)(1) may proceed IFP after he has 11 been released, see Putzer v. Attal, 2013 WL 4519351, at *1 (D. Nev. Aug. 23, 2013) (noting the 12 “unresolved issue within the Ninth Circuit regarding the application of the Prison Litigation 13 Reform Act (PLRA) pauper application requirements in cases where the prisoner is released 14 pendente lite, i.e., during the litigation”), other circuits and district courts in California have found 15 the statutory language of § 1915(b)(1) requires released prisoners to pay the amounts still due 16 after their release if they wish to continue to prosecute their action. Gay v. Tex. Dep’t of Corr., 17 117 F.3d 240, 241–42 (5th Cir. 1997); In re Smith, 114 F.3d 1247, 1251–52 (D.C. Cir. 1997); 18 Robbins v. Switzer, 104 F.3d 895, 897–99 (7th Cir. 1997); Townsend v. Rendon, 2022 WL 19 1462181, at *2 (E.D. Cal. April 1, 2022) (directing released inmate to “either pay the filing fee in 20 full or submit a complete[d] application to proceed in forma pauperis by a non-prisoner”); 21 Makoni v. Downs, 2016 WL 7210403, at *4 (S.D. Cal. Dec. 13, 2016) (denying released 22 prisoner’s initial IFP motion and requiring supplemental post-release IFP motion); Flynn v. 23 Canlas, 2015 WL 8492503, at *4 (S.D. Cal. Dec. 10, 2015) (same); Adler v. Gonzalez, 2015 WL 24 4041772, at *2 (E.D. Cal. July 1, 2015) (requiring “updated IFP application” of released prisoner 25 because court “ha[d] before it no evidence that Plaintiff [remained] a pauper,” and the 26

27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 19, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed 28 IFP. Id. 1 “[c]ircumstances that undoubtedly contributed to his impoverishment, i.e., imprisonment, no 2 longer exist”); Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (remanding fee payments to 3 district court in order to “review [plaintiff's] present economic situation and fit a fee to the 4 economic facts if [he was] still interested in pursuing his claim”). 5 Consequently, for this case to proceed further, Plaintiff must pay $350.00 (the total 6 amount that remains due toward the $350.00 filing fee as of the date of this Order) in one lump 7 sum no later than February 21, 2025, if he wishes to continue to prosecute this action. If Plaintiff 8 cannot pay this amount in one lump sum, Plaintiff shall file a renewed motion to proceed IFP 9 accompanied by the enclosed financial form completed and signed to under penalty of perjury by 10 this same date. Plaintiff must provide a complete picture of his current financial situation, 11 including an explanation as to his ability to provide basic necessities for himself. Plaintiff must 12 include any information relating to any financial assistance he receives, the amount of this 13 assistance, and the name of the entity providing this assistance. The Court will then review the 14 renewed application and set a monthly payment schedule for the remainder of the $350.00 filing 15 fee.3 16 ACCORDINGLY, it is ORDERED: 17 1. No later than February 21, 2025, Plaintiff must pay $350.00 (the total amount that 18 remains due toward the $350.00 filing fee) in one lump sum by cashier’s check, money order, or 19 personal check, payable to the Clerk of Court. Plaintiff shall include his name and case no. 1:24- 20 cv-00897-HBK on the check. 21 3. If Plaintiff cannot pay this amount in one lump sum, Plaintiff, by this same date, 22 shall file a renewed motion to proceed IFP accompanied by the enclosed financial form 23 completed and signed to under penalty of perjury. 24 4. The Clerk of the Court shall enclose a blank AO 239 (Rev. 01/15) Application to 25 Proceed in District Court Without Prepaying Fees or Costs (Long Form) with this Order for 26 Plaintiff’s use, if appropriate. 27 3 “In no event shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner 28 has no assets and no means by which to pay the initial filing fee.” 28 U.S.C. § 1915(b)(4). 1 5. If Plaintiff fails to comply with this Order by failing to either pay $350.00 in one 2 | lump sum or submitting a completed AO 239 renewed IFP application, the Court may dismiss his 3 | action for Plaintiffs failure to prosecute and/or as a sanction for Plaintiff's failure to obey a court 4 | order. See Local Rule 110. 5 6 Dated: _ January 17, 2025 Kobo Zh. Bareh Hack 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28