S.D. Cal. Weighs in on Split Re: 28 U.S.C. § 1915(b)(2) of the Prison Litigation Reform Act

Per Hendon v. Ramsey, --- F. Supp. 2d ----, 2007 WL 841414 (S.D. Cal. Feb. 23, 2007):

On July 3, 2006, this Court granted Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), found that the allegations in his Complaint survived the initial screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and directed the U.S. Marshal to effect service. [Doc. No. 4.] Because Plaintiff submitted an affidavit in support of his Motion to Proceed IFP showing he had no funds with which to pay any initial partial filing fees, he was ordered to pay none. However, the Court ordered the CDCR "to collect from Plaintiff's prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from [his] trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the account and [to] forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2)." (See IFP Order at 4.) It is this provision of the Prison Litigation Reform Act (PLRA) that Plaintiff now challenges. . . .

Plaintiff requests that the Court "should adopt the position taken in Lafauci v. Cunningham, 139 F.Supp.2d 144 (D.Mass.2001), which hold[s] that the total deducted from an inmate's monthly income for filing fees cannot exceed 20%," and that filing fees incurred for multiple federal cases and/or appeals "should be paid off sequentially." (Id. ¶ 3.) See also Whitfield v. Scully, 241 F.3d 264, 277 (2d Cir.2001) (holding that § 1915(b)(2) "generally requires the recoupment of multiple encumbrances in sequential fashion at a constant rate of 20 percent of monthly receipts to the prisoner's account."). Defendants acknowledge that the issue before the Court is one of first impression in the Ninth Circuit, and that there is a split of authority within the Circuit Courts of Appeal. (Defs. Opp'n at 3.) Defendants argue that 28 U.S.C. § 1915(b) is properly interpreted to require 20 percent of a prisoner's trust account to be collected for each suit initiated by the prisoner. (See Defs.' Opp'n at 2-3) (citing Atchison v. Collins, 288 F.3d 177 (5th Cir.2002); Lefkowitz v. Citi-Equity Group, Inc., 146 F.3d 609 (8th Cir.1998); Newlin v. Helman, 123 F.3d 429 (7th Cir.1997), overruled in part on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir.2000).) Defendants argue that the plain language of the PLRA and the underlying purpose of the statute support this reading. (Defs. Opp'n at 2.) . . .

In the instant Motion for Sequential Fee Collection, Plaintiff challenges Defendants' interpretation of 1915(b)(2). This provision of the PLRA provides for the continued payment of the remainder of the filing fee after the initial partial filing fee has been paid. . . . As noted above, there is a split of authority as to the manner in which prisoners are required to pay filing fees under § 1915(b)(2). The Second Circuit has held that § 1915(b)(2) requires that filing fees be collected sequentially, meaning an indigent prisoner can be assessed no more than 20 percent of his monthly income, regardless of the number of lawsuits filed. See Whitfield, 241 F.3d at 277. Each filing fee then is satisfied in the order incurred. The Fifth, Seventh, and Eighth Circuits have held that § 1915(b)(2) requires that filing fees be collected simultaneously, meaning that an inmate with multiple filing fees must pay 20 percent of his monthly income for each fee incurred. See Atchison, 288 F.3d at 181; Lefkowitz, 146 F.3d at 612; Newlin, 123 F.3d at 436. An inmate filing five cases, for instance, would be assessed 100% of his monthly income. The reasoning behind the two interpretations is discussed in detail below. . . .

The Court first turns to the language of § 1915(b) to determine whether the statute mandates that only 20 percent of Plaintiff's monthly income can be deducted for filing fees, or whether the statute requires that 20 percent of Plaintiff's income be collected for each action he has initiated. The Court agrees with the Fifth Circuit's analysis in Atchison and finds that the language of the statute lends itself to a reading that 20 percent of Plaintiff's monthly income must be deducted for each suit Plaintiff has filed. . . . [T]he overall statutory scheme is written in a manner that requires prisoners to complete procedures and pay fees on a per case basis, rather than a per prisoner basis. Further, § 1915(b)(2) references "the initial partial filing fee" discussed in § 1915(b)(1), suggesting that the subsections of the statute are intended to be read as an overall statutory scheme. The Court thus FINDS that when read in the context of the entire statute, § 1915(b)(2) mandates that after payment of the initial partial filing fee for each action or appeal filed, prisoners are also required to make monthly payments of 20 percent of their income for each civil action or appeal filed.