United States District Court, D. Minnesota
Katherine M. Menendez United States Magistrate Judge.
matter is before the Court on Plaintiff Jeremy Pinson's
Motion for Leave to Proceed Without Initial Partial Filing
Fee, ECF No. 7 (Motion). For the following reasons, the Court
denies the Motion and orders Ms. Pinson to pay the initial
partial filing fee within 60 days.
Pinson did not pay the filing fee for this case, but instead
filed an Application to Proceed in District Court Without
Prepaying Fees or Costs. ECF No. 2 (IFP Application). In an
order dated January 22, 2019, the Court determined that Ms.
Pinson has “‘on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted.'”
Order 1-2, ECF No. 4 (quoting 28 U.S.C. § 1915(g)
(January 2019 Order)). Under 28 U.S.C. § 1915(g), such
individuals may not proceed in forma pauperis. The Court thus
denied the IFP Application and ordered Ms. Pinson to pay the
full filing fee within 30 days. See Id. at 2.
Pinson filed a Motion for Reconsideration, ECF No. 5, asking
this Court to review the January 2019 Order. She argued that
her complaint's allegations qualified her for §
1915(g)'s exception for prisoners “under imminent
danger of serious physical injury.” Id. at 1;
cf. Compl. 8-9 (presenting harm-related
allegations). The Court agreed that Ms. Pinson qualified for
the imminent-danger exception, vacated the January 2019
Order, and considered the IFP Application in light of §
1915(b). Order 4-6, ECF No. 6 (February 2019 Order). Applying
§ 1915(b), the Court determined that Ms. Pinson needed
to pay an initial partial filing fee of $2.33 before this
action could proceed. See Id. at 5.
response, Ms. Pinson has filed the present Motion. She
contends that she should be able to proceed without paying
the initial partial filing fee because she has “no
assets and no means by which to pay” it. 28 U.S.C.
§ 1915(b)(4); see also Mot. 1 (citing §
1915(b)(4)). She submits a form that purports to show her
commissary-account transactions; this shows a current
available balance of $0.00. See Federal Bureau of
Prisons, TRULINCS Account Transactions-Commissary,
included within ECF No. 7-1. Based on this, Ms.
Pinson asserts that her “available balance is less than
the assessed partial filing fee, ” and that as a
result, rather than her being required to pay the initial
partial filing fee, “the BOP [should] be directed to
collect the initial partial filing fee as soon as the funds
exist in the account to pay such, and that the court's
screening and service process [should] continue.” Mot.
Court disagrees. The fact that Ms. Pinson's available
balance is less than the initial partial filing fee of $2.33
is not dispositive. Illustrative here is a discussion from
Maddox v. Chisago County Sheriff Office
distinguishing between “assets” and
“means” in § 1915(b)(4):
The Court notes that [the plaintiff] has previously argued
(and appears to continue to argue) that, because he has spent
all of the money in his trust account, he has rendered
himself unable to pay any initial fee and therefore
should be excused from having to do so under §
1915(b)(4) . . . . As the Court has previously held, however,
the fact that [the plaintiff] currently lacks the
assets to pay his initial partial fee is not
sufficient to demonstrate that he lacks the means to
pay that fee. See Newlin v. Helman, 123 F.3d 429,
435 (7th Cir.1997), overruled on other grounds by Lee v.
Clinton, 209 F.3d 1025 (7th Cir. 2000) and Walker v.
O'Brien, 216 F.3d 626 (7th Cir. 2000)
(“Section 1915(b)(4) comes into play only when
‘the prisoner has no assets and no means by
which to pay the initial partial filing fee.' A prisoner
with periodic income has ‘means' even when he lacks
‘assets.'”)[.] If it were, then prisoners
could easily evade the strictures of the Prison Litigation
Reform Act by spending their money as soon as they receive
it. See Newlin, 123 F.3d at 435 (“It is not
enough that the prisoner lack assets on the date he files. If
that were so, then a prisoner could squander his trust
account and avoid the fee.”).
No. 10-CV-2133 (PJS/JJG), 2010 WL 3119393, at *1 (D. Minn.
Aug. 5, 2010).
Court noted in its previous Order, the trust-account
statement provided by Ms. Pinson shows that her average
monthly deposits for the six-month period from mid-June 2018
through mid-December 2018 was $11.67. As a result, whether or
not Ms. Pinson currently has assets by which to pay the
initial partial filing fee, she appears to have the means to
do so, so the § 1915(b)(4) exception does not apply.
cases that the Motion cites do not persuade. In Childs v.
Oritz, the U.S. Court of Appeals for the Tenth Circuit
affirmed a district court's dismissal (without prejudice)
of a prisoner's civil-rights action. 259 Fed.Appx. 139,
140 (10th Cir. 2007). In relevant part, the plaintiff had
argued that because he qualified for the § 1915(b)(4)
exception, the dismissal had been an abuse of discretion.
See Id. at 141. In that case, however, the district
court initially determined that the prisoner qualified for
the exception and allowed the litigation to proceed without
payment of the initial partial filing fee. See Id.
at 140. But the court also required the prisoner to make
monthly payments each month toward the filing fee or to show
cause each month “why he had no assets and no means to
pay the fee.” Id. After the prisoner
consistently failed both to make monthly payments and to show
that he lacked both assets and means, the district court
eventually dismissed the action. Id. at 141. Ms.
Pinson's situation plainly differs from that presented in
Childs-most critically, evidence she has submitted
indicates that she does not qualify for the §
1915(b)(4) exception in the first place.
Moore v. Bachmeier, the U.S. District Court for the
District of North Dakota suggested that §
1915(b)(4)'s wording implies that a prisoner's
failure to pay the initial partial filing fee cannot justify
dismissal of an action. 315 F.Supp.2d 1029, 1032 (D.N.D.
2004) (“28 U.S.C. § 1915(b)(4) provides that
‘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.'
Thus, the failure to pay a filing fee does not
constitute grounds for dismissal of a prisoner's
action.”) (emphasis added). The issue in this case, in
contrast, is not dismissal but commencement of the case.
summary, the Court concludes that Ms. Pinson has the means to
pay an initial partial filing fee of $2.33. This action will
go forward once Ms. Pinson pays that fee. As the Court noted
before, if Ms. Pinson elects to pursue this action through
payment of the $2.33 initial partial filing fee, the entirety
of the remaining balance of the $350.00 statutory filing fee
will have to be paid in later installments. Prison officials
will be ordered to deduct funds from Ms. Pinson's trust
account and submit such funds to the Court, as provided by
§ 1915(b)(2), regardless of whether Ms. Pinson succeeds
in this action. If Ms. Pinson does not pay her initial
partial filing fee within 60 days of the date of this order,
she will be required to show cause why the case should not be
dismissed without prejudice. See Fed. R. Civ. P.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT: Plaintiff
Jeremy Pinson must pay an initial partial filing fee of ...