Opinion
Civil Action No. 00-N-1066
February 26, 2001.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The plaintiff in this case is an inmate in a Colorado state prison. On June 27, 2000, he was granted leave, pursuant to 28 U.S.C. § 1915, to proceed in forma pauperis. Section 1915 allows an indigent prisoner to bring an action without prepayment of filing fees. Id. at § 1915(a)(1). The prisoner is required, however, to pay an initial partial filing fee and thereafter to "make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account," until the full filing fee is satisfied. Id. at § 1915(b)(1) and (2). This requirement is designed to deter frivolous prisoner litigation. E.g.,Williams v. Roberts, 116 F.3d 1126, 1127-28 (5th Cir. 1997).
Alternatively, if the plaintiff lacks money with which to make a particular month's filing fee payment, the Order dated June 27, 2000, allows him to avoid making that payment by filing a current certified copy of his inmate trust fund account statement demonstrating his lack of funds. The June 27 Order provides, however, that if the plaintiff fails to make a required monthly payment or fails to file an account statement showing that he cannot make that payment, "the Prisoner's Civil Rights Complaint will be dismissed without further notice." Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915, entered June 27, 2000.
Since the June 27 Order, the plaintiff has not made any payment whatsoever toward his filing fee. In addition, in the intervening eight months, he has filed only three account statements.
On July 10, 2000, the plaintiff filed a copy of his account statement for the period December 30, 1999, to June 30, 2000. Based on that account statement, I excused the plaintiff from paying his initial filing fee for the month of June. I also ordered that the initial fee be paid by September 24, 2000, and that the plaintiff thereafter make the required monthly payments toward his filing fee or show cause why he could not.
On September 22, 2000, the plaintiff submitted a copy of his account statement which reflects his account status through September 6, 2000. On November 3, 2000, the plaintiff submitted another account statement which reflects his account status through October 20, 2000. Thus, the plaintiff attempted to show cause why he could not make his payments in August and September, respectively. The plaintiff has not filed monthly account statements for the months of July, October, November, and December 2000, and January 2001.
On December 15, 2000, I ordered the plaintiff to show cause, in writing, why his case should not be dismissed for his failure to pay his initial partial filing fee of $4.00 and to make monthly payments until his filing fee is paid in full, or to file monthly account statements demonstrating that he had no money with which to make the monthly payments. At that time, I determined that the plaintiff had funds sufficient to pay the initial filing fee of $4.00 and to make monthly installments against the unpaid filing fee balance.
In his response to my Order to Show Cause, the plaintiff acknowledged that he was ordered to pay his initial partial filing fee of $4.00 and to make monthly payments thereafter or show cause monthly that he is unable to do so. He asserts, however, that his case should not be dismissed because: (1) the defendants prohibited him from complying with the Court's orders to pay his fee or show cause why he could not; (2) the Court has not appointed an attorney to represent him; and (3) "the court record shows that the plaintiff indeed filed a [sic] inmate banking history with this court each and every month from May 2000 — December 2000."
The plaintiffs response to the Order to Show Cause does not assert that he cannot afford to make his payments based on the income credited to his inmate trust fund account each month. Indeed, as I determined in my Order to Show Cause,
The plaintiffs account statement [for the period of time through October 20, 2000] shows an available balance of 56 cents as of October 20, 2000. The plaintiff appears to claim that because he had only 56 cents on October 20, he did not have assets with which to pay his filing fee in July, August, September, or October. To the contrary, the account statement shows deposits and voluntary expenditures during the relevant time period and for purposes other than paying the filing fee in this case, those deposits and expenditures far exceeding the $4.00 initial filing fee.
Specifically, the plaintiffs account statement filed on November 3, 2000, shows a balance of more than $25.00 from July 17 through 19, 2000, and of more than $5.00 from July 19 through 26, 2000. During that time period, the plaintiff placed two canteen orders in the amounts of $18.81 and $4.33 respectively. From August 1 through 9, 2000, the plaintiff had an account balance of more than $15.00, which was depleted by a canteen order in the amount of $18.14. The plaintiff had an account balance of more than $5.00 from October 3 through 11, 2000, which was substantially depleted to satisfy a canteen order. And from October 13 through 17, 2000, the plaintiff had an account balance in excess of $7.00, again substantially depleted to satisfy a canteen order.
The plaintiffs account statement clearly shows that prior to his discretionary expenditures, the plaintiff had assets with which to pay the initial partial filing fee of $4.00 by September 24, 2000, as ordered, and to make monthly installment payments of 20% of his income against the unpaid filing fee balance. Based on the last account statement provided by the plaintiff (which provides information through October 20, 2000), the plaintiff received income of $16.49 in October 2000. Applying the 20% formula mandated by 28 U.S.C. § 1915(b)(2), the plaintiff was obligated to make a monthly payment of $3.30 for October 2000.
In the face of two orders that he make an initial partial filing fee of $4.00, the plaintiff cannot voluntarily spend his income on discretionary items and then at month's end claim that he is without assets to satisfy his federal court filing fee obligation. Such a rule would invite prisoners to evade the clear mandate of § 1915(b)(2) that federal court filing fees be paid on a monthly basis at the rate of "20 percent of the preceding month's income credited to the prisoner's account." 28 U.S.C. § 1915 (b)(2) (emphasis added). In my view, § 1915 and this Court's Orders of June 27 and August 24, 2000, required this plaintiff to pay the first 20% of his monthly income toward his federal filing fee obligation, absent a substantial justification to the contrary, which he has not provided.
The plaintiff first argues that he cannot make his payments because the defendants are not allowing him to receive money orders or allowing him to forward money orders to the Court for filing fees. As a preliminary matter, whether or not the plaintiff is allowed to receive money orders is not relevant to the issue of whether the plaintiff can make monthly payments or show cause why he cannot pay. The Court's assessment of the plaintiffs ability to pay is based on the amount of money credited to his inmate trust fund account each month; it is not based on money which has not been credited to his account. The plaintiffs alleged inability to deposit money orders does not prohibit him from making payments which are based on the amount of money already in his account, nor does it prohibit him from sending to the Court a copy of his account statement to show cause why he cannot pay his fees.
The plaintiff states that he informed the Court in his Motion entitled "Plaintiff's Motion Request [sic] Order on Defendants to Release All Hold's [sic] on Plaintiff's Incoming Money Orders and Mail so that Plaintiff Follow [sic] Court Orders to Pay Filing Fees Pursuant to 28 U.S.C. § 1915(a)," filed September 6, 2000, that the Colorado Department of Corrections (the "DOC") was not allowing him to pay his filing fee. That Motion, however, seeks an order prohibiting the defendants from holding the plaintiffs incoming mail — specifically, money orders from his family. The Motion does not assert that the plaintiff is being prevented from sending money to the Court. Moreover, the plaintiff does not assert that he ever tried to send money to the Court.
On October 17, 2000, I denied this Motion without prejudice for the plaintiffs failure to serve it on the defendants as required by Rule 5, Fed.R.Civ.P. The plaintiff did not attempt to refile the Motion, nor did he attempt service of the Motion on the defendants.
I note that on February 20, 2001, more than two months after I issued the Order to Show Cause, the plaintiff filed a "Motion to Compel Forwarding Money Orders to Court." This Motion, for the first time, and without any supporting facts, asserts that the defendants prohibited the plaintiff from sending money to the Court to pay his filing fee. This bald assertion comes too late. Moreover, the plaintiff is required to show cause each month why he cannot make his payments. Although the Motion asserts that the defendants are denying the plaintiff access to copies of his account statements so that he can attempt to show cause, it also asserts that the plaintiff has filed monthly copies of his account statements. As addressed below, the record does not support the plaintiffs allegation that the defendants are denying him access to his account statements. In addition, this allegation is inconsistent with the plaintiffs assertion that he filed account statements each month since filing this case.
Even if the plaintiff were prohibited from sending money to the Court, that does not explain the plaintiffs failure to show cause each month why he cannot make his payments. Although the record reflects that, on several occasions, the plaintiff complained that the DOC would not provide him with a copy of his account statement, the record also shows that after each such complaint, the plaintiff obtained and filed a copy of that statement. The plaintiffs allegations that the defendants were not providing him with copies of his account statements are unsupported by the record.
For example, after the plaintiffs first complaint that the defendants would not give him a copy of his account statement on June 7, 2000, the Court ordered the Warden to provide a copy of the plaintiffs inmate trust fund account. The Court vacated the Order on June 23, 2000, because the plaintiff himself provided the Court with a copy of his account statement on June 22, 2000. Subsequently, on August 25, 2000, I denied as moot the plaintiffs July 5, 2000, motion to order the Warden to provide a copy of his inmate trust fund account because the plaintiff filed a copy of his account statement on July 10, 2000.
The plaintiff next asserts:
The Plaintiff has filed a number of motions requesting the Court to appoint an attorney in this matter yet do [sic] to what plaintiff believe [sic] is prejudice the Magistrate Judge has dismissed each motion that I've filed into this Court.
On October 17, 2000, I denied the plaintiffs Motion for the Appointment of Counsel, filed July 31, 2000, for the plaintiffs failure to serve it upon the defendants as required by Rule 5, Fed.R.Civ.P. The record shows that this Motion is the plaintiffs only motion for appointment of counsel. The plaintiff did not attempt to refile the Motion, nor did he attempt service of the Motion upon the defendants.
To the extent the plaintiff is arguing that he is unable to comply with the Court's orders to pay his fees because he is not represented by counsel, the argument is without merit. The plaintiff does not need an attorney to make monthly payments toward his filing fee or to submit a certified copy of his account statement showing that he cannot pay his fee.
Finally, the plaintiff asserts that "the court record shows that the plaintiff indeed filed a [sic] inmate banking history with this court each and every month from May 2000 — December 2000." To the contrary, a total of five certified copies of the plaintiffs account statements have been filed since this action was brought in June. The first two statements established the plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915. The remaining three account statements demonstrated an attempt by plaintiff to show cause why the he could not pay his filing fee for the months of June, August, and September. As a result, the plaintiff has failed to submit a certified copy of his account statement in an attempt to establish that he did not have assets with which to make payments towards his filing fee for the months of July, October, November, and December 2000, and January 2001.
Section 1915(b)(2), 28 U.S.C. and this Court's Orders of June 27 and August 24, 2000, require the plaintiff to make monthly payments toward his outstanding filing fee balance, or show cause on a monthly basis why those payments cannot be made. That requirement is not satisfied by the plaintiff providing information on a periodic basis.
Rule 41.1 of the local rules of practice of this Court states:
A judicial officer may issue an order to show cause why a case should not be dismissed for lack of prosecution or for failure to comply with these rules, federal rules of civil or criminal procedure, or any court order. If good cause is not shown within the time set in the show cause order, a district judge may enter an order of dismissal with or without prejudice.
I respectfully RECOMMEND that the plaintiffs Amended Complaint be DISMISSED WITH PREJUDICE. Keeping in mind that dismissal with prejudice is a harsh sanction which is not to be imposed without justification,Jones v. Thompson, 996 F.2d 261, 264(10th Cir. 1993), I find that dismissal with prejudice is appropriate in this case. In making this determination, I considered the following factors as required by the Tenth Circuit: (1) the degree of actual prejudice to the defendants; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the Court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions. Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992).
I find that any prejudice suffered by the defendants as a result of the plaintiffs failure to comply with the Court's orders is minimal and, without more, would be insufficient to warrant dismissal. See id.
I do note, however, that the purpose behind requiring prisoners to pay their filing fees is to deter frivolous prisoner litigation.Williams, 116 F.3d at 1127-28. The prisons, like the courts, are burdened by frivolous civil rights cases. Thus, as prison officials and employees, the defendants certainly are affected by noncompliance with filing rules that seek to decrease frivolous litigation.
With regard to the second factor, the plaintiffs continued failure to comply with Court orders has caused disruption in my docket. Rather than attending to the merits of this case and other cases, I have been required to devote substantial attention to this plaintiffs failure to comply with court orders and § 1915(b).
With regard to the issue of culpability, the plaintiff cannot blame his failure to comply with Court orders on the defendants, nor can he blame his noncompliance on the fact that he is not represented by counsel. The plaintiff alone is culpable for his noncompliance.
The plaintiff has had adequate warning that his case would be dismissed for noncompliance with the payment requirements. On June 27, 2000, the Court directed the plaintiff to pay his fee or show cause why he could not, and warned the plaintiff that if he failed to comply with the order, he would suffer dismissal of his case. My Order of August 24, 2000, referred to the June 27 Order and again directed the plaintiff to pay the initial fee and thereafter make monthly payments or show cause why he could not. On December 15, 2000, I again warned the plaintiff that his case would be dismissed if he failed to justify his failure to make payments or show cause. Despite repeated warnings, the plaintiff failed to make any adequate showing excusing his failures to comply with this Court's orders to make his monthly payments or show cause why he could not.
At the same time that the plaintiff failed either to meet his filing fee obligation or to submit monthly financial statements evidencing his inability to do so, he flooded the Court with at least 21 separate motions, most of which were denied without prejudice for his failure to serve them on the defendants.
I have considered lesser sanctions, including dismissal without prejudice. Due to the plaintiffs repeated failure to comply with the Court's orders, I am convinced that the plaintiff simply would refile his case and repeat his pattern of failing to comply with orders concerning payment of the filing fee. Accordingly,
I respectfully RECOMMEND that the plaintiffs Complaint be DISMISSED WITH PREJUDICE pursuant to D.C.COLO.LR 41.1 for his failure to pay an initial partial filing fee of $4.00 and thereafter to make monthly payments of twenty percent of his preceding month's income until his filing fee was paid in full, or show cause each month that he has no assets with which to make the monthly payment, all as directed by the Court's Orders of June 27, 2000, and August 24, 2000.
FURTHER, IT IS ORDERED that pursuant to 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), the parties have ten (10) days after service to serve and file written, specific objections to this recommendation with the district judge assigned to this case. The district judge need not consider frivolous, conclusory, or general objections. A party's failure to file and serve written specific objections will preclude the party from a de novo determination by the district judge, United States v. Raddatz, 447 U.S. 667, 676-83 (1980), and also will preclude appellate review of both factual and legal questions. Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).