The opinion of the court was delivered by: BREWSTER
Plaintiff, Tenence Rodgers,
proceeding in pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983 on December 29, 1995. Plaintiff, an inmate at California State Prison in Calipatria, California, alleges that the Warden of Calipatria, K.W. Prunty, a floor officer D. Deboe, and various other employees of the California Department of Corrections, violated the Eighth Amendment's proscription against cruel and unusual punishment by beating him and further conspired to harass him based on his sexual orientation. Plaintiff seeks injunctive relief and $ 800,000 in damages from each party.
On February 13, 1996, the Court granted plaintiff's request to proceed in forma pauperis and directed the U.S. Marshal to effect service of process. Only defendants Prunty and Deboe were properly served with summons and complaint pursuant to FED. R. CIV. P. 4.
On July 29, 1996, the Court granted defendant Prunty's motion to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6) on the grounds that: (1) the Eleventh Amendment bars claims for damages against Prunty in his official capacity as Warden of Calipatria; (2) plaintiff failed to allege facts sufficient to state a claim against Prunty in his individual capacity; and (3) plaintiff failed to allege facts sufficient to state a claim for conspiracy against defendant Prunty under the heightened pleading standard set forth in Branch v. Tunnell, 937 F.2d 1382, 1386 (9th Cir. 1991). Plaintiff was granted 30 days leave to amend his complaint. He did not do so; thus, only defendant Deboe remains a party to this action.
On November 5, 1996, defendant Deboe filed a motion to require payment of filing fees pursuant to 28 U.S.C. § 1915 as amended by the Prison Litigation Reform Act of 1995 ["PLRA"], Pub. L. 104-134, Title VIII, §§ 801-10, 110 Stat. 1321 (1996). Defendant does not address the merits of plaintiff's complaint, but rather requests that the Court apply the PLRA to plaintiff's case even though he was granted in forma pauperis status on February 13, 1996, more than two months prior to its enactment on April 26, 1996. Specifically, defendant requests that this Court apply the mandatory filing fee provisions set forth in amended 28 U.S.C. § 1915(b) retrospectively to this case and "all prisoner lawsuits pending at the time" the PLRA was enacted. Def.'s Motion at 6. Plaintiff has filed no opposition.
On April 26, 1996, Congress enacted the PLRA as Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. 104-134, 110 Stat. 1321 (1996). Section 804 of the PLRA, which amends 28 U.S.C. § 1915, redefines the rights and obligations of litigants who are granted in forma pauperis status. Prior to the passage of the PLRA, imprisoned litigants who were granted leave to proceed in forma pauperis could seek and easily obtain what amounted to a "waiver" of filing fees and costs.
The PLRA, however, requires prisoners proceeding in forma pauperis who bring "civil actions" or appeals of "civil actions" to pay the "full amount of a filing fee." 28 U.S.C. § 1915(b)(1). In the event that a prisoner is unable to pre-pay the entire fee at the time of filing, section 1915, as amended by the PLRA, establishes an elaborate deferred payment schedule by which litigants may fulfill their filing fee obligations. If an imprisoned litigant's funds are insufficient to pay the full filing fee, the prisoner must pay an initial partial filing fee. 28 U.S.C. § 1915(b)(1)(A)(B). Thereafter, the prisoner must make monthly payments to the court until the filing fee is paid in full, while the agency having custody of the prisoner must forward payments to the clerk of the court until the entire fee has been collected. 28 U.S.C. § 1915(b)(2). Notwithstanding the payment of any full or partial filing fee that may have been paid, the PLRA further mandates dismissal of a case at any time if the court determines that an allegation of poverty is untrue, or if the complaint or appeal is frivolous or malicious, fails to state a claim, or seeks monetary relief from a defendant who is immune. 28 U.S.C. §§ 1915(e); 1915A; Leonard v. Lacy, 88 F.3d 181, 184 (2d Cir. 1996).
a. The plain language of 28 U.S.C. § 1915(b) limits its application to the "bringing" or "filing" of a civil action or appeal.
Title 28 of the United States Code, section 1915, now provides:
(b)(1) . . . 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 ...