Opinion
Case No. 1:97-CV-773
February 13, 2001
ORDER
In accordance with the Opinion issued on this date,
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss First Amended Complaint (Dkt. No. 80-1) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Dismiss Count Two (Dkt. No. 80-1) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Dismiss Count Three (Dkt. No. 80-1) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Dismiss Count Five (Dkt. No. 80-1) is GRANTED.
IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment (Dkt. No. 80-2) is DENIED as moot. This claim was dismissed pursuant to the stipulation of the parties.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment on Count Four (Dkt. No. 86) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment on Count Five (Dkt. No. 86) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment on Count Six (Dkt. No. 86) is GRANTED.
OPINION
This is a civil rights action brought by a state prisoner, Marvin D. Hughes (hereinafter "Plaintiff'), pursuant to 42 U.S.C. § 1983. The following matters are presently before the Court: (1) Defendants', Raymond Toombs, Deb Beltz, and Zbigniew Tyszkiewicz (hereinafter "Defendants"), Motion to Dismiss the First Amended Complaint, for Partial Dismissal of Count Five due to Res Judicata, and for Dismissal of Counts Two and Three; (2) Defendants' Motion for Summary Judgment with respect to Defendant Tyszkiewicz; and (3) Plaintiff's Motion for Summary Judgment with respect to Counts Four, Five, and Six.
Background
This case involves Plaintiff's claim that Defendants took monies from his prison trust account in violation of his constitutional right against deprivation of property without due process and right of access to the courts in violation of federal law and court orders. The underlying facts of this case have been set forth in a previous Report and Recommendation and Opinion, Hughes v. Toombs, No. 1:97-CV-773, 1999 U.S. Dist. LEXIS 12092 (W.D.Mich. Aug. 4, 1999).
Briefly stated, Plaintiff contends that Defendant Debra Beltz, a bookkeeper employed by the Ionia Maximum Correctional Facility (hereinafter "IMAX"), improperly withdrew all of the funds in Plaintiff's prison account to pay for filing fees related to two civil rights actions brought by Plaintiff. Plaintiff contends that Defendant Beltz knew or should have known that her conduct in depriving Plaintiff of the funds in his account violated a federal statute and orders of the district court setting forth installment payment schedules for the filing fees. Plaintiff maintains this is so despite Beltz' assertion that her conduct was pursuant to prison procedures and Michigan Department of Corrections' (hereinafter "MDOC") policy concerning the withdrawal and holding of funds from prisoner accounts for payment of court filing fees. Plaintiff also alleges that Defendant Toombs, as warden of IMAX, established procedures and implemented MDOC policy at IMAX in a manner contrary to federal statute and court orders and in violation of Plaintiff's constitutional rights. Plaintiff further alleges that Defendant Tyszkiewicz, a subsequent warden at IMAX, continued the improper implementation of these procedures. Finally, Plaintiff claims that as a result of Defendants' conduct, he was denied access to his funds to pay for supplies necessary to pursue legal actions and to purchase necessities.
Plaintiff raises six claims in his First Amended Complaint: Count One, a § 1983 claim for deprivation of property without due process; Count Two, a § 1983 claim for denial of right of access to the courts; Count Three, a § 1983 claim of retaliation for exercising his constitutional rights; Count Four, a § 1983 claim for violation of federal rights under the Prison Litigation Reform Act (hereinafter "PLRA") 28 U.S.C. § 1915(b); Count Five, a contempt of court claim; and, Count Six, a conversion claim.
Plaintiff has mistakenly referred to the conversion count as a second "Count V." Consequently, the court will differentiate Plaintiff' last two counts by referring to the "contempt count" and the "conversion count."
I. Defendants' Motions to Dismiss A. Defendants' Motion to Dismiss First Amended Complaint for Failure to Add Necessary Party
Defendants seek to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(7) for Plaintiff's failure to include the Clerk of the United States District Court (the "Clerk") as a necessary party under Federal Rule of Civil Procedure 19. Since the Clerk of this Court is the primary administrative officer of this Court, appointed by and responsible for carrying out the orders of this Court, his addition to the lawsuit is tantamount to making the Court itself a party to the action. Defendants' novel suggestion is questionable at best.The question of joinder under Rule 19 and dismissal for failure to join an indispensable party under Rule 12(b)(7) involves a three-step process. See Keweenaw Bay Indian Community v. State of Michigan, 11 F.3d 1341, 1345 (6th Cir. 1993).
The court must first determine whether a person is necessary to the action and should be joined if possible. Rule 19(a) describes this initial analysis as follows:
(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject matter of the action and is so situated that the disposition of the action in the person's absence may
(i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave the parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
If the court finds that the absent person or entity falls within either one of these provisions, the party is thus one to be joined if feasible. The court must then consider steps two and three: the issues of personal jurisdiction and indispensability.Id. Defendants' motion fails at step one because they have not established that the Clerk is a "necessary" party under Rule 19(a).
In Safeco Ins. Co. v. Town of White House, Tennessee, 36 F.3d 540 (6th Cir. 1994), the Court listed three different circumstances in which a party becomes necessary for purposes of Rule 19:
A party is "needed for just adjudication" under Rule 19 if: (1) complete relief cannot be given to existing parties in his absence; (2) disposition in his absence may impair his ability to protect his interest in the controversy; or (3) his absence would expose existing parties to substantial risk of double or inconsistent obligations. Fed.R.Civ.P. 19(a)(1) (2)(i)-(ii).Id. at 546.
Defendants have failed to demonstrate that the Clerk has met any one of the three circumstances identified in Safeco. First, Plaintiff can obtain complete relief without adding the Clerk as a party. Plaintiff does not allege that the Clerk wrongfully charged him filing fees, seek a refund from the Clerk, or seek injunctive relief against the Clerk. Rather, Plaintiff alleges that the manner in which Defendants withdrew the funds from his prison account caused him injury. Under these circumstances, it appears to the Court that Plaintiff can obtain complete relief from Defendants. If it were to become necessary for the Clerk to return funds to the MDOC, this could be accomplished by an order of this Court. It is unnecessary to make the Clerk a party to the suit. Second, Defendants have failed to demonstrate that the Clerk's absence from this litigation may impair the Clerk's ability to protect his interest in the controversy. The Court's previous orders in Case Nos. 1:96-CV-703 and 4:97-CV-90 granted Plaintiff in forma pauperis status and created a method for the Clerk to collect payment from Plaintiff's prison account. Consequently, the Clerk's interest in any fees owed by Plaintiff will not be impaired by the outcome of the present suit. Even if Plaintiff recovers funds from Defendants, this recovery will not imperil the Clerk's ability to receive funds from Plaintiff's prison account.
Finally, Defendants have failed to demonstrate that the Clerk's absence will expose Plaintiff or Defendants to a substantial risk of incurring double or inconsistent obligations. Plaintiff, an indigent prisoner, is already subject to a court-ordered payment schedule under the orders granting him in forma pauperis status. The Clerk has no other claims. Accordingly, the Court will deny Defendants' Motion to Dismiss the First Amended Complaint for failure to add a necessary party.
B. Defendants' Motion to Dismiss Counts Two and Three
Next, Defendants move to dismiss Counts Two and Three on the ground that the Court's Order of August 4, 1999, already dismissed those two counts pursuant to Federal Rule of Civil Procedure 12(b)(6), and they are therefore barred. The August 4, 1999, Order states that "Defendants' Motion for Dismissal . . . [is] GRANTED . . . as to Plaintiff's First Amendment [claims]. . . ." Plaintiff points out that the Court's August 4, 1999, Opinion appears to contradict the Order because the Opinion concludes that "Hughes has stated a claim for denial of access to the courts in violation of the First Amendment." Hughes v. Toombs, No. 1:97-CV-773, 1999 U.S. Dist. LEXIS 12092, at *9 (W.D.Mich. Aug. 4, 1999).
It is obvious to the Court that it made a clerical error in its August 4, 1999, Order dismissing Plaintiff's First Amendment denial of access claim. Therefore, the Court will rectify this error by denying Defendants' Motion to Dismiss as to Count Two. Based on the reasoning of the Court's August 4, 1999, Opinion, Plaintiff still has a valid claim for denial of access to the courts.
Count Three of Plaintiff's First Amended Complaint alleges that Defendants Beltz, Toombs, and Tyszkiewicz retaliated against him for exercising his First Amendment right to file law suits. The Court's August 4, 1999, Opinion stated that Plaintiff's retaliation claim was not clearly included in the Complaint and that the Complaint provided no factual allegations in support of this legal conclusion. The Court dismissed the retaliation claim in its August 4, 1999, Order. Plaintiff has remedied the original ground for dismissal by filing a separate count for retaliation. Further, Defendants have failed to address the sufficiency of the retaliation count as set forth in Plaintiff's First Amended Complaint. Accordingly, the Court will deny Defendants' Motion to Dismiss Count Three of Plaintiff's First Amended Complaint.
Defendants also contend that they are prejudiced by the retaliation claim and that Plaintiff should not be able to resurrect the claim at this late date without permission of the court. Defendants' contentions are without merit. This Court granted Plaintiff's Motion for Leave to Amend his Complaint on September 12, 2000.
C. Motion to Dismiss Plaintiff's Count for Contempt of Court
Next, Defendants seek dismissal of Plaintiff's Count Five, which alleges that Defendants are in civil contempt of court for violating two orders entered in Plaintiff's previous suits, 1:96-CV-703 and 4:97-CV-90. These orders required the agency having custody of Plaintiff to forward to the proper court payments of twenty percent of the preceding month's income in Plaintiff's prison account each month that his account exceeded ten dollars. Plaintiff alleges that Defendants were in contempt of these orders when they withdrew all, or substantially all, of Plaintiff's funds from the prison account to pay the amounts owed by Plaintiff to the Clerk's office for filing these two suits.Defendants correctly counter that the civil contempt proceedings should have been brought in the original suits.
"Proceedings for civil contempt are between the original parties, and are instituted and tried as part of the main case." Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 445 (1911); see, e.g., Matter of Hipp, Inc., 895 F.2d 1503, 1510 (5th Cir. 1990) (in which the court noted that a criminal contempt proceeding, unlike a civil contempt proceeding, is a separate proceeding, not part of the case in which the violated order was issued, and does not depend on the validity of the order or the continuation of the underlying proceeding); Cf. Higgason v. Swihart, 980 F. Supp. 296 (N.D.Ind. 1997) (in which the court declined to find prison officials in contempt after the plaintiff filed two motions for sanctions against the officials for taking too much money out of the plaintiff's prison account to pay the appellate filing fee under 28 U.S.C. § 1915(b)). Plaintiff's civil contempt claims should have been brought in the two previous suits rather than as an independent action. Accordingly, the Court will grant Defendants' Motion to Dismiss Plaintiff's Count for civil contempt.
II. Defendants' Motion for Summary Judgment Regarding Defendant Tyszkiewicz
The parties have stipulated to the dismissal of all claims against Defendant Tyszkiewicz. Accordingly, Defendant Tyszkiewicz' Motion for Summary Judgment will be denied as moot.
III. Plaintiff's Motion for Summary Judgment
Plaintiff seeks summary judgment pursuant to Federal Rule of Civil Procedure 56 with respect to Count Four (§ 1983 claim for violating the PLRA), the contempt count, and the conversion count.
A. Standard
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the Sixth Circuit Court of Appeals described the standard for deciding a Rule 56 motion as follows:
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); LaPointe, 8 F.3d at 378. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 252, 1065 S.Ct. at 2512.Id. at 478-79.
B. Section 1983 Claim for Violation of the PLRA
In Count Four, Plaintiff seeks relief under § 1983 for an alleged violation of 28 U.S.C. § 1915(b), which provides as follows:
(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of —
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.
(3) In no event shall the filing fee collected exceed the amount of fees permitted by statute for commencement of a civil action or an appeal of a civil action or criminal judgment.
(4) In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.
An initial question before the Court is whether § 1915(b) can serve as the basis for Plaintiff's § 1983 claim. Section 1983 provides, in relevant part, the following:
Every person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or proper proceeding for redress.42 U.S.C. § 1983.
In Wood v. Tompkins, 33 F.3d 600 (6th Cir. 1994), the Sixth Circuit Court of Appeals reviewed the circumstances in which a § 1983 claim may be based upon the violation of rights conferred by a federal statute:
42 U.S.C. § 1983 provides a private cause of action for "the deprivations of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. Ever since Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980), the Supreme Court has held that § 1983 provides a private cause of action for violations of federal statutes as well as the Constitution. The coverage of § 1983 is to be "broadly construed."Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 447-48, 107 L.Ed.2d 420 (1989). The Court has recognized only two exceptions under which statutory violations are not actionable:
A plaintiff alleging a violation of a federal statute will be permitted to sue under § 1983 unless (1) "the statute does not create enforceable rights, privileges, or immunities within the meaning of § 1983," or (2) "Congress has foreclosed such enforcement of the statute in the enactment itself."Wilder v. Virginia Hosp. Assn, 496 U.S. 498, 508, 110 S.Ct. 2510, 2517; 110 L.Ed.2d 455 (1990) (quoting Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987)).
To determine whether the first of these two exceptions applies, the Court has developed a three part test:
(1) Was the provision in question intended to benefit the plaintiff?
(2) Does the statutory provision in question create binding obligations on the defendant governmental unit, rather than merely expressing a congressional preference? and
(3) Is the interest the plaintiff asserts specific enough to be enforced judicially, rather than being "vague and amorphous"?Wilder, 496 U.S. at 509, 110 S.Ct. at 2517; Golden State, 493 U.S. at 106, 110 S.Ct. at 448. The plaintiff bears the burden of proving that this exception does not apply. Golden State, 493 U.S. at 106, 110 S.Ct. at 448.
As for the second of the exceptions, the only way Congress forecloses § 1983 enforcement is by "providing a comprehensive enforcement mechanism for protection of a federal right." Id. Mere availability of administrative protections is not sufficient. Id. "Rather, the statutory framework must be such that allowing a plaintiff to bring a § 1983 action would be inconsistent with Congress' carefully tailored scheme." Id. at 107, 110 S.Ct. at 449. "We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right." Id. The defendant bears the burden of proving that this exception applies. Id. Wood, 33 F.3d 600 at 604-605.
1. The PLRA provision in question is intended to benefit the Plaintiff.
In applying the Wilder test to § 1915(b), the Court agrees with Plaintiff's contention that this statute creates an enforceable right that was intended to benefit him within the meaning of § 1983. In enacting the original version of the in forma pauperis statute in 1892, "Congress proposed to `open the United States courts to a class of American citizens who have rights to be adjudicated, but are now excluded practically for want of sufficient money or property to enter the courts under their rules.'" Roller v. Gunn, 107 F.3d 227, 230 (4th Cir. 1997) (quoting H.R. Rep. No. 1079, 52d Cong., 1st Sess. 1 (1892)). The statute and its enactment represent the United States Government's affirmative response to the rhetorical question posed by the Committee on the Judiciary in 1892: "whether this Government, having established courts to do justice to litigants, will admit the wealthy and deny the poor entrance to them to have their rights adjudicated." H.R. Rep. No. 1079, 52d Cong., 1st Sess. 1 (1892).
In the case law subsequent to its enactment, the United States Supreme Court and various lower courts have all referred to the dictates of § 1915 as "benefits" and "privileges" conferred by Congress on those individuals in our society of lesser wealth. Rowland v. California Men's Colony, 506 U.S. 194, 196, 198, 198 n. 2 (1993) ("benefit"); Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C. Cir. 2000) ("privilege"); Feliciano v. Selsky, 205 F.3d 568, 571 (2d Cir. 2000) ("benefit"); Hrobowski v. Commonwealth Edison Co., 203 F.3d 445, 448 (7" Cir. 2000) ("benefit"); Cherry v. Champion Int'l Corp., 186 F.3d 442, 447 (4th Cir. 1999) ("benefit"); Roller v. Gunn, 107 F.3d 227, 232 (4th Cir. 1997) ("benefit"); Deutsch v. United States, 67 F.3d 1080, 1089 (3d Cir. 1995) ("benefit").
That portion of § 1915(b) at issue was enacted as part of the PLRA. The text of the PLRA "reflects [the fact] that the drafter's primary objective was to curb prison condition litigation." Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). It does so by providing prisoners with an economic disincentive to file frivolous lawsuits. Hampton v. Hobbs, 106 F.3d 1281 (6th Cir. 1997). Under the PLRA, "[p]risoners are no longer entitled to a waiver of fees and costs." McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). Consequently, when an inmate seeks pauper status under § 1915, "the only issue is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan." Id.
While the PLRA "erects a complex installment process by which prisoners may pay their filing fee obligations," Kincade, 117 F.3d at 951, it does not do away with in forma pauperis status. In fact, the PLRA sets up a very specific installment plan that allows a prisoner declared a pauper by the court to pay the filing fee as funds become available in a prisoner's trust account. This installment fee system provides a definite benefit to prisoners in that it allows them to gradually pay the filing fee over time. This scheme means that prisoners are still able to file a lawsuit but are not completely deprived of the ability to buy necessities. Hampton, 106 F.3d at 1284-86 (6th Cir. 1997). The fee structure of the statute does not force a prisoner to make a Hobson's choice of filing a lawsuit to vindicate his civil rights or foregoing necessary purchases. See Losee v. Maschner, 113 F. Supp.2d 1343, 1351 (S.D.Iowa 1998) ("[T]he PLRA's goals [are to] discourag[e] inmates' frivolous lawsuits, and provid[e] safeguards that ensure inmates do not have to totally deprive themselves of life's amenities to file lawsuits."). Thus, because § 1915(b) is intended to benefit prisoners who are declared paupers by the court, this section passes the first part of the Wilder test.
2. Section 1915(b) creates a binding obligation on the government defendants.
The second part of the Wilder test requires that the provision in question creates a binding obligation on the government unit in question. Wilder v. Virginia Hosp. Ass'n. , 496 U.S. 498, 509 (1990). The provision giving rise to the asserted right must be mandatory rather than couched in precatory terms. Wilder, 496 U.S. at 512; Horn by Parks v. Madison County Fiscal Court, 22 F.3d 653, 658 (6th Cir. 1994). Section 1915(b)(2) states that after the court makes a determination of pauper status, "[t]he agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the account exceeds $10 until the filing fees are paid." 28 U.S.C. § 1915(b)(2) (emphasis added). The language of this section provides for no discretion on the part of prison officials. They must forward the appropriate amount from the prisoner's account to the court and they may not make arbitrary determinations as to what amount is appropriate for withdrawal. The language of the statute could not be more clear and it easily meets the criteria stated in Wilder, that the provision in question creates a binding obligation on the government entity.
3. The interest asserted by the Plaintiff is specific and can be judicially enforced.
In order to meet the third part of the Wilder test, "the plaintiff must demonstrate that the right assertedly protected by the statute is not so `vague and amorphous' that its enforcement would strain judicial competence." Wilder, 496 U.S. at 509. This test is easily met. The statute mandates that prison officials withdraw the statutorily determined fee amount from the prisoner's trust account and then send that amount to the court. Simple math indicates whether or not prison officials have accomplished the task properly. Should prison officials ignore the dictates of the statute and send more than the proper amount from the prisoner's trust account, the court can easily figure this out. The simplicity and the specificity of the right asserted means enforcement would in no way strain the judicial competence of the court. Therefore, § 1915(b) passes the final Wilder factor. Given that § 1915(b) easily surmounts the factors enunciated in Wilder, Plaintiff has a cause of action under 42 U.S.C. § 1983 for Defendants' violations of 28 U.S.C. § 1915 (b).
4. Plaintiff's § 1983 claim.
These facts are undisputed. On September 3, 1996, Magistrate Judge Scoville issued an Order granting Plaintiff leave to proceed in forma pauperis and requiring Plaintiff to pay an initial partial filing fee and the remainder in installments pursuant to 28 U.S.C. § 1915(b). Despite the clear language of the statute and the order, Defendant Beltz took far more from Plaintiff's account than authorized and sent that sum to the Court. Defendant Beltz openly admitted that this action violated the statute and the Order.
When Plaintiff realized that more than the proper amount of funds had been removed by Defendant Beltz, Plaintiff filed a grievance. Defendant Beltz responded to Plaintiff's grievance by stating that her actions were justified by MDOC Operating Procedure 04:02.105-A (hereafter "OP 04:02.105-A"). Despite the statute, the court Order, and the obvious applicability of OP 04:02.105A's "court order" exception, Defendant Beltz denied Plaintiff's grievance. Plaintiff appealed the denial to Defendant Toombs. Defendant Toombs is responsible for reviewing prisoner appeals. After reviewing the grievance, but without reviewing the court Order, Defendant Toombs denied Plaintiff's grievance because he felt Defendant Beltz' actions did not violate OP 04.02.105-A.
"Unless otherwise ordered by court, [Prisoner Accounting] checks prisoner's spendable balance and applies 100% of the spendable balance, unless the prisoner has spent less than $7.00. . . ." OP 04:02.105-A IV.5 (emphasis added).
Several weeks later, Defendant Beltz again withdrew the spendable balance in Plaintiff's account to pay court fees for Plaintiff's second suit. Defendant Beltz took this action despite the fact that Magistrate Judge Brenneman, like Magistrate Judge Scoville, had issued an Order granting Plaintiff pauper status and requiring that he pay only twenty percent of his previous month's income. On or about October 23, 1997, Defendant Beltz received a letter from the Court informing her that she had incorrectly sent the Court more funds than authorized by Magistrate Judge Brenneman's Order. The letter also contained a refund of the excess amount.
All of these actions by Defendants violated 28 U.S.C. § 1915(b). The statute requires the agency having custody of the Plaintiff to forward the proper filing fee installment payments from Plaintiff's trust account to the Court. The statute clearly states once the court grants a prisoner pauper status, the initial filing fee amount to be forwarded to the court is not the entire amount available in Plaintiff's trust account. Rather, the prison officials are to forward 20 percent of the greater of either the average monthly deposits in the trust account or the average monthly balance for the proceeding six months. Defendants did not carry out the mandates of the statute despite its explicit directions, and therefore their actions violated Plaintiff's right under the PLRA.
Although the Court understands the process by which prison officials determine the appropriate amounts to take out of a prisoner's account is cumbersome, it is a complication of their own creation. Higgason v. Swihart, 980 F. Supp. 296, 299 (N.D.Ind. 1997) ("[The] problems [involved in assessing filing fees] are, in a manner of speaking, self inflicted wounds, given the support afforded to the PLRA before its passage by many senior correctional officials and state attorneys general. . . .").
It appears to the Court that since the problem of prison officials inappropriately withdrawing excessive amounts from prisoner trust accounts for in forma pauperus filing fees may be widespread, this sort of action might be better brought in the form of a class action lawsuit.
Defendants contend that even if their actions violated Plaintiff's § 1915(b), Plaintiff has failed to prove that they had the specific intent to violate Plaintiff's rights and that they fall within the purview of qualified immunity. The Court disagrees. Defendants are simply mistaken when they argue that specific intent to deprive a person of a federal right is an element of a cause of action under § 1983. Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled on other grounds by Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978); Donald v. Wilson, 847 F.2d 1191, 1198-99 (6th Cir. 1988), overruled on other grounds by Green v. Bock, 490 U.S. 504 (1989). Therefore, Plaintiff need not prove specific intent to maintain an action under § 1983.
Defendants' argument regarding qualified immunity is similarly unavailing. "Generally officials have qualified immunity from individual liability for damages resulting from exercising discretionary functions." Mackey v. Dyke, 29 F.3d 1086, 1093 (6th Cir. 1994) (emphasis added). This liability "protects those officers only `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. at 1093-94 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
It is obvious from the language of § 1915(b) that the withdrawal and forwarding of the requisite filing fees is not a discretionary function. The statute is a directive and use of the word "shall" leaves no room for interpretation of what a prison official is supposed to do with regard to the forwarding of fees to the court. The prison officials must forward only the appropriate amount as set forth by the statute and reiterated by court order.
Even if the statute could be interpreted as providing some discretion, the issue here is whether Plaintiff had a "clearly established" right to have prison officials take only a statutorily specified amount from his trust account to pay his filing fees. "In order for a right to be `clearly established,' the law must be clear with regard to the official's particular action in the particular situation." Id. at 1094.
The contours of the right must be sufficiently clear that a reasonable official would understand that what he was doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in light of pre-existing law the unlawfulness must be apparent. Whether the official was or should have been aware of the [federal] right does not turn on the subjective good faith of that official, but rather turns on the "objective reasonableness" of the action, assessed in light of the legal rules that were in effect at the time the action was taken. Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Given the language of the statute, it was objectively unreasonable for Defendants Beltz and Toombs to believe that they could take from Plaintiff's account more than the amount authorized by statute as described by the Order. The statute gives Plaintiff the right to proceed in forma pauperis if the court so orders. With that right comes the right to pay the filing fee in installments. Defendants did not follow the explicit mandate of the statute when they forwarded all of the amount in Plaintiff's account to pay his filing fees. For Defendants to now assert that their actions were reasonable in light of the clear language of the statute is simply not credible.
The Court finds that based on the language of § 1915(b) the Defendants are not entitled to qualified immunity because sending the proper amount from Plaintiff's account is not a discretionary function, and because Defendants' actions were objectively unreasonable in light of the clear directive of the statute. Based on the reasoning described above, the Court will grant Plaintiff's motion for summary judgment as to the issue of Defendants' liability under § 1983 for violation of § 1915(b). The issue of damages under § 1983 for violation of Plaintiff's right under the PLRA is still unresolved and the parties are encouraged to resolve this issue.
C. Contempt of Court
For the reasons stated in Section I.C. of this Opinion, Plaintiff's Motion for Summary Judgment with respect to the contempt of court claim is denied.
D. Conversion
Finally, Plaintiff seeks summary judgment on his conversion claim. Under Michigan law, "[c]onversion is any distinct act of dominion wrongfully exerted over another person's personal property in denial of or inconsistent with his rights therein." Citizens Ins. Co. of America v. Delcamp Truck Center, Inc., 178 Mich. App. 570, 575, 444 N.W.2d 210 (1989) (quoting Nelson Witt v. Texas Co., 256 Mich. 65, 70, 239 N.W.2d 289 (1931)). "Conversion is an intentional tort in that the defendant's action must be willful, but one can commit the tort unwittingly if unaware of the plaintiff's outstanding property interest." Citizens Ins. Co., 178 Mich. App. at 575. However, when the alleged conversion involves funds in a bank account, a plaintiff can maintain an action "only if there was an obligation on the defendant's part to return or deliver the specific money entrusted to it." Check Reporting Services, Inc. v. Michigan National Bank-Lansing, 191 Mich. App. 614, 626, 478 N.W.2d 893 (1992). See also Garras v. Bekiares, 315 Mich. 141, 148, 23 N.W.2d 239 (1946).
Plaintiff has a property interest in the funds placed in his prisoner trust account. Mich. Admin. Code R. 791.6639. See also Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th Cir. 1997) ("Prisoners do have a protected interest in their money. . . ."). Although courts have stated that prisoners do not have full control over their funds while in prison, id., this does not imply that prison authorities have the right to withdraw funds for filing fees when those funds are not yet due to the court. The PLRA allows a prisoner declared a pauper by the court to pay his filing fees in installments. Defendants Beltz and Toombs had no property interest in Plaintiff's funds until those funds were due. Therefore, Defendants, however unwittingly, exerted wrongful dominion over Plaintiff's funds when they withdrew them from his account and sent them to the Court in violation of the PLRA and the various Court orders. Accordingly, Plaintiff's Motion for Summary Judgment will be granted on the conversion count. The issue of Plaintiff's damages for this Count still remains.
IV. Conclusion
This Opinion and the resulting Order leave the following issues between Plaintiff and Defendants unresolved: (1) Count II; (2) Count III; (3) Count IV as to damages; and (4) Count VI as to damages.
An Order consistent with this Opinion shall be issued forthwith.