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Dunne v. Swain

United States District Court, C.D. California

October 21, 2019

WILLIAM DUNNE and THOMAS FARRUGIA, Petitioners,
v.
C.L. SWAIN, Warden, Respondent.

          ORDER TO SHOW CAUSE WHY THE MAGISTRATE JUDGE SHOULD NOT RECOMMEND THAT THIS ACTION BE DISMISSED FOR: (1) PETITIONER DUNNE'S FAILURE TO PAY THE INITIAL PARTIAL FILING FEE; AND (2) PETITIONER FARRUGIA'S FAILURE TO FILE AN IFP APPLICATION

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On December 17, 2018, Petitioners William Dunne and Thomas Farrugia, federal prisoners proceeding pro se, filed a document captioned “Petition for Relief in the Nature of Mandamus” under 28 U.S.C. § 1361. (“Petition, ” Dkt. No. 2). Petitioners contend that the Federal Correctional Institution-1 at Victorville, California does not have a “functioning administrative remedy” process and seek, among other relief, an Order requiring Warden C.L. Swain to implement specific changes to the processing of prisoner grievances.

         On the same day that the Petition was accepted for filing, Dunne, but not Farrugia, filed a Request for Waiver of Filing Fee (“Waiver Request I, ” Dkt. No. 3), including the Declaration of William Dunne in support of the Request. (“Dunne Decl. I, ” Dkt. No. 4). The Court construed Waiver Request I as an application to proceed in forma pauperis (“IFP”), and on January 29, 2019, granted Dunne IFP status, with an order to pay an initial partial filing fee of $70.80 within thirty days of the Court's Order. (“IFP Order, ” Dkt. No. 10). On February 14, 2019, the Court received payment of $5.00 from Dunne, the amount of the filing fee for habeas actions.

         Shortly after the IFP Order issued, Dunne re-filed his Waiver Request (“Waiver Request II”), including the Declaration of William Dunne (“Dunne Decl. II”). (Dkt. No. 13). Waiver Request II and Dunne Declaration II were nothing more than photocopies of Waiver Request I and Dunne Declaration I, with one handwritten interlineation added to Dunne Declaration II.[1] (Id.; compare Dkt. Nos. 3-4). On June 4, 2019, the Court denied Waiver Request II on the ground that, contrary to Dunne's contentions, this action is subject to the filing fee requirements of the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), codified at 28 U.S.C. § 1915. (“PLRA Order, ” Dkt. No. 23, at 7-8).

         Accordingly, the Court denied Waiver Request II with prejudice to the extent that the Request could be “construed to seek a finding that the filing fee provisions of the PLRA do not apply to the instant action in mandamus.” (Id. at 7). However, to the extent that Waiver Request II could be construed as a challenge to the amount of the initial partial filing fee assessed in the January 2019 IFP Order, the Court denied the Request without prejudice to Dunne filing “an updated Request for an adjustment of the amount of the initial partial filing fee based on changed circumstances, supported by a copy of his trust account statement for the prior six months.” (Id. at 8).

         As of today, Dunne has not paid the balance due on the initial partial filing fee assessed by the Court over nine months ago.[2]Nor has he requested an adjustment to the amount of the initial partial filing fee to reflect his changed financial circumstances, if any. Farrugia still has not filed an IFP application at all. For the reasons stated below, Dunne and Farrugia are each ORDERED to show cause why this action should not be dismissed for their separate failures to comply with the filing fee requirements of the PLRA.

         II. THE PLRA'S REQUIREMENTS APPLY TO THIS ACTION

         Dunne argued in Waiver Request II that this action is akin to a habeas action and is therefore exempt from the PRLA. In the PLRA Order, the Court explained in some detail why the PLRA's provisions apply in this case. For the sake of completeness, the Court repeats that explanation here.

It is well settled that “the PLRA does not extend to a prisoner's use of habeas corpus petitions.” Washington v. Los Angeles Cnty. Sheriff's Dep't, 833 F.3d 1048, 1058 (9th Cir. 2016); see also Andrews v. King, 398 F.3d 1113 (9th Cir. 2005) (“The ‘PLRA's revised [in] forma pauperis provisions relating to prisoners do not apply to habeas proceedings.'”) (quoting Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997); brackets in original). However, the PLRA, including its filing fee requirements, does apply “in ‘a civil action' or the ‘appeal [of] a judgment in a civil action or proceeding.'” Washington, 833 F.3d at 1058 (quoting 28 U.S.C. § 1915(g); brackets in original). Whether a particular mandamus petition is more civil or criminal in nature is a case-specific inquiry.
The Ninth Circuit has observed that “mandamus, as a common-law writ that functions in some respects like an appeal, is not categorically either civil or criminal.” El-Shaddai v. Zamora, 833 F.3d 1036, 1047 (9th Cir. 2016) (citing Washington, 833 F.3d at 1057- 59). The Ninth Circuit instructs that the determination of whether a given mandamus petition should be deemed “civil” (and thus subject to the PLRA) or “criminal” (and thus exempt from the PLRA) “depends on the nature of the underlying claim.” El-Shaddai, 833 F.3d at 1047; see also Washington, 833 F.3d at 1057-59 (adopting reasoning of Martin v. United States, 96 F.3d 853, 854- 55 (7th Cir. 1996), regarding civil-criminal distinction to be applied to mandamus petitions). In Washington, for example, the court determined that the petitioner's mandamus petitions were not subject to the PLRA because they “directly challenged underlying criminal proceedings” and therefore “operated like habeas petitions challenging a criminal conviction.” Id.; see also El-Shaddai, 833 F.3d at 1047 (mandamus petition was “like a habeas petition and outside of the scope of the PLRA” where it directly challenged petitioner's “sentence and parole terms, ” and thus, “the duration of his criminal sentence”).
In contrast, where the mandamus petition arises from an action that will not affect the fact or duration of the petitioner's confinement, courts have found that the petition must comply with the PLRA. See, e.g., In re Grant, 635 F.3d 1227, 1230 (D.C. Cir. 2011) (applying PLRA filing fee requirements to mandamus petition challenging order transferring petitioner's underlying civil complaint to another district); Misiak v. Freeh, 22 Fed.Appx. 384, 386 (6th Cir. 2001) (“The PLRA applies to mandamus petitions that seek relief analogous to civil complaints under 42 U.S.C. § 1983.”); In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997) (“[A] mandamus petition arising from an ongoing civil rights lawsuit falls within the scope of the PLRA.”); In re Nagy, 89 F.3d 115, 117 n.1 (2d Cir. 1996) (“Whether the PLRA applies to a writ of mandamus directed to a judge conducting a civil lawsuit would normally depend on whether the writ was simply an alternative device for obtaining the relief sought in civil actions that are covered by the PLRA.”); Tillisy v. U.S. Fed. Bureau of Prisons, 2015 WL 1058256, at *2 (W.D. Wash. Mar. 10, 2015) (mandamus petition seeking order compelling petitioner's transfer to a different prison for advanced medical care was subject to PLRA requirements because it arose “in the context of civil litigation”); Fjerstad v. Palmquist, 2008 WL 4331633, at *1 (W.D. Wash. Sept. 17, 2008) (mandamus petition alleging prison's failure to comply with federal regulations governing visitation privileges “must comply” with the PLRA because the petition arose “in the context of civil litigation”).
Petitioners' complaints in this action concern the conditions of their confinement, not its duration. As Petitioners argued, “[a]s a result” of Swain's alleged failure to comply with grievance process regulations,
medical services are slow-walked if provided at all, meals frequently deviate downward from the prescribed national menu without appropriate substitutes, recreational and other equipment is not repaired or issued in sufficient quantity, recreation is needlessly constrained, vocational programs are un- or underprovided, paperwork is not timely processed, provision of sanitation supplies is neglected, lights are not restored, etc., etc.
(Petition at 15). Not one of the many dozens of grievances listed on Dunne's grievance log directly challenges the fact of his conviction or the duration of his confinement. (Petition, Exh. 1). Similarly, Farrugia's grievances, attached as Exhibits to the Petition, concern only the conditions of his confinement. (Id., Exhs. 11-13). The mandamus relief Petitioners are seeking here arises from “civil actions” or appeals, not from underlying criminal matters. Accordingly, the Court concludes that the PLRA applies to the instant Petition, including the requirement in 28 U.S.C. § 1915(b)(1) that inmates proceeding in forma pauperis be “required to pay the full amount of a filing fee.”

         III. UNDER THE PLRA, EVEN PRISONERS PROCEEDING IN FORMA ...


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