United States District Court, C.D. California
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
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.
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.
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. (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).
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).
today, Dunne has not paid the balance due on the initial
partial filing fee assessed by the Court over
nine months ago.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.
THE PLRA'S REQUIREMENTS APPLY TO THIS ACTION
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
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.”
UNDER THE PLRA, EVEN PRISONERS PROCEEDING IN FORMA