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Pro Se Tips and Tactics
My first article will cover the issue of proceedings in forma pauperis under the standard created by the Prison Litigation Reform Act (PLRA). It is my intent to walk you through the entire litigation process in these articles, e.g., from seeking in forma pauperis status, to seeking discovery, to holding a trial, to handling an appeal.
If prisoners can't afford to pay the filing fee and other litigation expenses, they can apply for permission to proceed in forma pauperis (IFP), which means "as a poor person."2 However, with the changes imposed by the Prison Litigation Reform Act (PLRA), there is no complete waiver of the filing fees and any costs, even for those who have no funds in their prison accounts when filing.3 If IFP is granted, the court will issue an order to prison staff to collect a percentage of any amount that is eventually placed in the prisoner's account until the account due is completely paid.4 The PLRA provided a safety valve that still allows those prisoners who have no funds to file lawsuits and to pay later.5
Application of IFP Upon Release
The circuits are divided on whether the PLRA's filing fee provisions apply to a lawsuit or a notice of appeal that is filed when the person is incarcerated even if released the next day from prison.6 Courts have held that the PLRA filing fees provisions do not apply to alien detainees,7 habeas actions filed under §§ 2254 or 2255,8 persons who are civilly committed as sexual or violent predators,9 and those on parole.10
File and Service Fees: Once the IFP application is granted, the complaint is filed for the prisoner by the court and the officers of the court (i.e., the United States Marshal) will issue and serve process without your having to pay them.11 The prisoner may also be excused from pre-paying other costs such as clerk and docket fees, copying costs for documents from the clerk's office,12 payment of court-appointed experts,13 etc.
Fees Prisoners Must Pay: IFP status does not excuse prisoners from paying all litigation expenses. You will probably have to pay witness fees to persons who are not parties to the lawsuit if you subpoena them to testify at depositions or at trial. The prisoner is also responsible for other "incidental costs" of litigation, such as copies of documents,14 postage for filing and serving papers after the complaint has been filed.
Affidavit: When filing a motion to proceed in forma pauperis, the prisoner is required to attach an affidavit stating the nature of the action, all of the assets you have, that you are unable to pay the required fees or give security, and you believe you are entitled to relief requested.15 The prisoner is also required to attach "a certified copy of the trust fund statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal...."16 This statement is obtained from the record office of the prison.
Upon receipt of the motion for in forma pauperis, the court is to review it to determine the amount of the partial filing fee that must be paid.17 The court is to require a partial filing fee of 20 percent of the average monthly deposits in the prisoner's account or the average monthly balance for the past 6-months period, which ever is greater.18 Once that amount is determined the court will issue an order and send it to the prisoner requiring monthly payment of that amount until the filing fee is paid in full.19 However, if the court determines that prisoner's account contained no funds for the six-month period immediately preceding the filing of the complaint, the initial partial filing fee assessment should be $0.00, but the prisoner will be ordered to pay the full filing fee in installments.20
In the IFP order, the court will usually set a time period of 30 days for the prisoner to made the first payment. If the prisoner does not make that initial payment, the court is to take some action, such as issuance of an order to show cause why the complaint should not be dismissed for non-payment, prior to dismissing the lawsuit.21 You must respond to the order to show cause by submitting proof that you requested said funds to be sent to the court or that the amount presently in your account is less than that ordered by the court. If the court find that the delay is the fault of prison officials, than the court will allow the lawsuit to proceed.22 However, if the prisoner has intentionally deleted his prison account to avoid payment of the filing fee, the court can dismiss the lawsuit with prejudice.23
Most courts are now placing in the order granting IFP, or in an attachment to that order, a requirement that the prisoner agrees to have funds removed from his prison account monthly by prison staff and when the total amount removed exceeds $10 that the amount is sent to the federal court.24
Impact of Voluntary Dismissal
Once the complaint or notice of appeal has been received by a federal court, a later voluntary dismissal of it will not eliminate a prisoner's obligation to pay the required filing fees.25 Any subsequent dismissal of the case does not eliminate this financial responsibility.26 Even if the case is dismissed without prejudice for failure to exhaust administrative remedies, the prisoner will still be required to pay the filing fee originally imposed and then pay a second filing fee if the administrative remedies are exhausted and the complaint is re-filed.
Impact of Multiple Plaintiffs
The courts are divided whether a number of pro se prisoners can file a single civil rights complaint raising the same claim against the same defendants when they are all requesting IFP status. Some courts have held that when more than one prisoner is named as a plaintiff that "[t]he statute does not specify how fees are to be assessed when multiple prisoners constitute the plaintiffs or appellants ... each prisoner should be proportionally liable for any fees and costs that may be assessed. Thus, any fees and costs that the district court or the court of appeals may impose shall be equally divided among all the prisoners."27 This holding would not apply to class members in a class action since the class certification is not decided until long after the issue of IFP is determined.
In addition, the IFP statute provides that "[j]udgment may be rendered for costs at the convulsion of the suit or action as in other cases."67 Costs will be discussed in another article.
Importance of Honesty
At every stage you must be completely honest with the court concerning your finances. If you misrepresent them, the court may dismiss your case.28
1.Daniel E. Manville is presently a Staff Attorney for Wayne State University Law School Civil Rights Clinic. He is the author and publisher of the recently released "Disciplinary Self-Help Litigation Manual" and is presently working on a rewrite of the "Prisoners' Self-Help Litigation Manaul" with John Boston.
2.This article will discuss 28 U.S.C. § 1915. Many states have adopted similar procedures as discussed in this section. If you are considering filing in state court, you should review the state Statutes and court rules pertaining to in forma pauperis.
3.28 U.S.C. § 1915(h). Some courts have held that this provision does not apply to those who are civilly committed as sexual or violent predatory. See, e.g., Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000) ("Only an individual who, at the time he seeks to file a civil action, is detained as a result of being accused of, convicted of, or sentenced for criminal offenses is a "prisoner" within the meaning of § 1915(a)(2) and (h)), and cases cited.
4.28 U.S.C. § 1915(b)(1). The court will requirement full payment even if done on the installment plan over years. See McGore v. Wrigglesworth, 114 F.3d 601, 606 (6th Cir. 1997) (observing that "the only issue [in IFP fee determination] is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan").
5.Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (under the safety-valve provision, "[i]n no event shall a prisoner be prohibited from bringing a civil action ... for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee." 28 U.S.C. §§ 1915(b)(4) (emphasis added).). The totally indigent prisoner is still subject to review pursuant to 28 U.S.C. §§ 1915(e(2) and 1915A, see discussion infra.
6.In re Prison Litigation Reform Act, 105 F.3d 1131, 1139 (6th Cir. 1997) ("PLRA could be construed to mean that the required partial fee payments are to be made only while the prisoner remains in prison, and that, upon his release, his obligation to pay fees is to be determined, like any non-prisoner, solely by whether he qualifies for i.f.p. status."); but see In re Smith, 114 F.3d 1247, 1251 (D.C. Cir. 1997) (because Smith was a prisoner when he filed his court action, he was obligated to fulfill the applicable PLRA requirements and pay amounts which accrued under the PLRA while he was incarcerated, even though he was released from prison while his appeal was pending).
7.Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002).
8.Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997).
9.Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000).
10.LaFontant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998).
11.28 U.S.C. § 1915(d).
12.Murphy v. Jones, 801 F.Supp. 283, 288, (E.D. Mo, 1992) ("In addition, an indigent litigant is not required to pay a variety of fees charged by the Clerk's Office for items such as photocopies ($.50 per page), retrieving records from a federal records center ($25), and reproduction of magnetic tape recordings ($15)).
This does not mean that you can automatically get free copies of anything in the court files. You will almost certainly have to show that you have a genuine need for a document in order to obtain it without payment, and some courts are reluctant to provide free copies under any circumstances. See In re Richards, 914 F.2d 1526, 1527 (6th Cir. 1990).
13.Court-appointed experts will be discussed in another article.
14.Brandon v. Beard, 140 F.R.D. 328, 329 (M.D. Pa. 1991) (plaintiff required to pay costs of copying documents sought in discovery).
15.28 U.S.C. § 1915(a).
16.Section 1915(a)(2). Some courts require a statement for the past 12-months. See, e.g., Wilson v. Sargent, 313 F.3d 1315, 1317 (11th Cir. 2002).
17.28 U.S.C. § 1915(b)(1); Wilson v. Sargent, 313 F.3d at 1317.
18.Id. 1915(b)(1). An example of this calculation is found in Wilson v. Sargent, 313 F.3d at 1319-20.
19.See In re Smith, 114 F.3d 1247, 1251 (D.C. Cir. 1997) (holding that under the PLRA, failure to comply with § 1915(b)(1) "may result in dismissal of a prisoner's action.").
20.28 U.S.C. § 1915(b)(2); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) ("Although the court can collect the initial fee only `when funds exist,' the court is to assess the initial fee based on the prisoner's account deposits and balances in the six-month period immediately preceding the filing of the complaint. " (emphasis in original)); Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000).
21.Wilson v. Sargent, 313 F.3d at 1321 ("district court must take reasonable steps to determine whether the prisoner complied with the order by authorizing payment by prison officials. ***. These steps may include issuing a show-cause order, allowing objections to the magistrate's report, communicating by telephone, fax, or email with officials of the custodial institution, and issuing an order to the custodial institution." (citation omitted)); See also Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983), overruled on other grds., Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1184 (7th Cir. 1989) (requiring notice and opportunity to respond prior to sua sponte dismissal of complaint and citing the cases of other circuits that have adopted this rule).
22.McGore v. Wrigglesworth, 114 F.3d at 607-08 ("prisoner cannot be penalized when prison officials fail to promptly pay an assessment.").
23. See Collier v. Tatum, 722 F.2d 653, 655-56 (11th Cir. 1983) cited to in Wilson v. Sargent, 313 F.3d at 1322.
24.Wilson v. Sargent, 313 F.3d at 1322; see also McGore v. Wrigglesworth, 114 F.3d at 606; Hatchet v. Nettles, 201 F.3d 651 (5th Cir. 2000).
25.Section 1915(b)(1); see In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) ( compels the payment of the respective fees at the moment the complaint or notice of appeal is filed).
26.Thurman v. Gramley, 97 F.3d 185, 187 (7th Cir. 1996).
27.Compare In re Prison Litigation Reform Act, 105 F.3d at 1138 ("any fees and costs that the district court or the court of appeals may impose shall be equally divided among all the prisoners") with Hubbard v. Haley, 262 F.3d 1194, 1197-98 (11th Cir. 2001) (no multi-plaintiff actions and each inmate must pay the full fee), cert. denied, 534 U.S. 1136 (2002).
28.28 U.S.C. § 1915(d); Romesburg v.Trickey, 908 F.2d 258, 260 (8th Cir. 1990) and cases cited. However, an erroneous financial statement is not cause for dismissal if there is no evidence of bad faith on the plaintiff's part. Mathews v.Gaither, 902 F.2d 877, 881 (11th Cir. 1990); Acevedo v. Reid, 653 F.Supp 347, 348-49 (S.D. N.Y. 1986).
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