Opinion
Case No. 1:07-cv-908.
October 29, 2008
Plaintiff Michael Marr ("Marr") is incarcerated. In October 2007, the Magistrate Judge granted Marr's motion for leave to proceed in forma pauperis ("IFP") in this matter. Marr was charged an initial partial filing fee of $4.81, but the court permitted him to proceed without payment thereof because he lacked sufficient funds to pay, directing him to pay when funds became available.
Funds have never been debited from Marr's prison account to pay the $4.81 initial partial filing fee. Marr contends that the Magistrate Judge's October 2007 IFP order and/or federal law obligate the prison to do so, no matter how low that causes the balance in Marr's prison account to go. For the reasons that follow, the court agrees with Marr.
To begin with, title 28 U.S.C. § 1915(b)(2) provides that " [a]fter 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 [prison] 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." Emphasis added. The Magistrate's IFP order interpreted this provision to impose the $10 minimum-balance requirement only after the initial partial filing fee has been paid: "The ten-dollar rule of § 1915(b)(2) is applicable to fees and costs due only after the initial partial filing fee is paid. Once the initial partial filing fee is paid in full, the ten-dollar and twenty-percent requirements of § 1915(b)(2) become applicable." See Doc. #5 (Oct. 2, 2007 IFP Order of M.J. Carmody) at 2 (citing McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997)).
Under the Magistrate's October 2007 interpretation of § 1915(b)(2), the statute does not require the prison to observe the $10 minimum-balance requirement until and unless he has paid the initial partial filing fee. In other words, on the Magistrate's view, the statute poses no impediment to the Michigan Department of Corrections ("MDOC") debiting Marr's prison account to pay the $4.81 initial partial filing fee even if his prison account balance is already below $10.00, or if the payment causes his prison account balance to fall below $10.
This court agrees with the Magistrate's October 2007 interpretation of § 1915(b)(2), and therefore with the Magistrate's holding that § 1915(b)(2) by its terms does not prohibit MDOC from paying Marr's $4.81 initial partial filing fee even if that causes his account balance to fall below $10. The Second Circuit's summary of § 1915(b)(2) also seems to take the view that the provision does not impose the $10-minimum-balance requirement until after the IFP prisoner has paid the initial partial filing fee. See Whitfield v. Scully, 241 F.3d 264, 272 (2d Cir. 2001).
This court is also inclined to agree with the Magistrate, however, that the terms of § 1915(b)(2) do not expressly and with perfect clarity require MDOC to pay any part of Marr's $4.81 initial partial filing fee if that would reduce his account balance below $10. See Magistrate's Oct. 3, 2008 IFP Order at 3. The question is this: if the text of § 1915(b)(2) does not make entirely clear that the $10-minimum requirement does not "kick in" until after payment of the initial partial filing fee, does any binding case law answer the question? The answer is yes.
On October 16, 2008, Marr filed a timely, specific objection to the Magistrate's October 3, 2008 order refusing to require MDOC to debit funds from Marr's account to pay his initial partial filing fee when doing so would cause his account balance to fall below $10 contrary to MDOC policy. Because the Magistrate's order ruled on a non-dispositive issue pursuant to 28 U.S.C. § 636(b)(1)(A) — not a dispositive matter pursuant to 28 U.S.C. § 636(b)(1)(B) — this court's review is highly deferential. This court may disturb the Magistrate's order only if it was "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A) and FED. R. CIV. P. 72(a).
This court will find a magistrate's factual finding to be "`clearly erroneous when, although there may evidence to support it, the . . . court, [considering the entire evidence], is left with the definite and firm conviction that a mistake has been committed.'" NEFT, LLC v. Border States Energy, LLC, ___ F. App'x ___, ___, 2008 WL 4613577, *2 (6th Cir. Oct. 15, 2008) (Richard Allen Griffin, J.) (quoting US v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007)); see also Kovats v. State of Michigan, 2008 WL 2095423, *1 (W.D. Mich. May 16, 2008) (Paul L. Maloney, J.) (citing US v. US Gypsum Co., 333 U.S. 364, 395 (1948) (explaining the clear-error standard of FED. R. CIV. P. 52(a)).
This court will find a magistrate's legal conclusion to be "contrary to law `when it fails to apply or misapplies relevant statutes, case law or rules of procedure.'" Kovats, 2008 WL 2095423 at *1 (quoting Botta v. Barnhart, 475 F. Supp.2d 174, 179 (E.D.N.Y. 2007) (quoting Catskill Dev., LLC v. Park Place Entertainment Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002))).
Marr has not contended that the magistrate made any erroneous factual findings with regard to this issue. Consequently, this court cannot find clear error.
Marr does contend that the magistrate judge ruled "contrary to law" by holding that "while the provision in McGore on which Plaintiff relies permits prison officials to debit his account below the ten dollar mark to satisfy an initial partial filing fee, it does not require them to do so." Marr's Objection at 3 (quoting Magistrate Judge Carmody's Oct. 3, 2008 Order) (emphasis in Order). Marr points to our Circuit's statement that "[e]ven if the account balance is under ten dollars, prison official must still forward payments to the district court to pay the initial filing fee." Marr's Objection at 4 (quoting McGore, 114 F.3d at 606). As Marr points out, the Circuit gave a specific example that supports his argument:
For example, under § 1915(b)(1)(B), a district court determines that a prisoner owes an initial partial filing fee of fourteen dollars. The prisoner's trust account balance is zero. The district court must impose the fourteen[-]dollar initial partial filing fee, but allow the case to proceed to screening.
Thereafter, the prisoner receives deposits of three dollars per month in the trust account. Prison officials must forward each three-dollar deposit up to the first fourteen dollars to the district court clerk. Once the fourteen-dollar initial partial filing fee is paid, the ten-dollar and twenty-percent requirements of § 1915(b)(2) become applicable.McGore, 114 F.3d at 606 (emphasis added, paragraph break added). The Fifth Circuit reads McGore to support Marr's position, and this court agrees. See Hatchett v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000) (C.J. Carolyn Dineen King, JJ. E. Grady Jolly Davis) ("Even if the account balance is under ten dollars, the custodial institution must still forward payments to the district court to pay the initial partial filing fee[,] as the ten-dollar rule of § 1915(b)(2) is applicable only after the initial partial filing fee is paid.") (citing McGore, 114 F.3d at 606). The Eleventh Circuit reads § 1915(b)(2) the same way. See Wilson v. Sargent, 313 F.3d 1315, 1320 (11th Cir. 2002) (following Fifth Circuit's reasoning in Hatchett).
Accordingly, in this respect, the Magistrate's IFP Order of October 3, 2008 was contrary to law. This court must follow McGore, which holds that § 1915(b)(2) requires prisons to debit an IFP prisoner's account for the initial partial filing fee without regard to the balance in the account before or after that payment. See also Bomer v. Lavigne, 76 F. App'x 660, 662 (6th Cir. 2003) (C.J. Boggs, Norris, Clay) ("At the time the complaint was filed, Bomer had a balance of $3.09 in his prison account. Based on his income over the previous six months, Bomer was liable for a partial filing fee of $3.06. Thus, as the funds existed to pay the partial filing fee at the time the complaint was filed, Bomer was required to pay the $3.06.") (citing 28 U.S.C. § 1915(b)(1) and (b)(2) and McGore, 114 F.3d at 606-07).
Other judges in our district likewise cite McGore and require prisoners to pay the initial partial filing fee before receiving the benefit of § 1915(b)(2)'s ten-dollar minimum-balance rule:
Courtney v. Caruso, 2005 WL 2123807, *3 (W.D. Mich. Aug. 19, 2005) (Quist, J.);
Hernandez v. Caruso, 2005 WL 1610686, *1 (W.D. Mich. July 5, 2005) (McKeague, J.);
Mitchell v. MDOC, 2005 WL 1295614, *1-2 (W.D. Mich. May 31, 2005) (Quist, J.);
ORDER
The court AFFIRMS in part and REVERSES in part the Magistrate Judge's IFP Order of October 3, 2008.
The Michigan Department of Corrections SHALL debit Marr's prison account until his initial partial filing fee of $4.81 has been paid, even if his prison account balance is now below ten dollars or this payment causes the balance to fall below ten dollars.
This is not a final and immediately appealable order.