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Hearing Required Before Denial of IFP
Khalid Alexander is a Nevada state prisoner. He tried to file suit and requested in forma pauperis status in order to proceed without paying the normally required filing fees. The Nevada district court has a policy of requiring prisoners to pay a partial filing fee based on either the value of their assets or their average income, whichever is greater.
Alexander had 29¢ on his account when he filed suit but had an average income of $27.67 over the preceding six months. The district court required him to pay a five dollar filing fee based on it's chart. Alexander filed a motion asking the court to reconsider it's order stating that he had no assets, had lost his prison job and no longer had an income. The district court denied the motion but gave Alexander an additional 60 days in which to pay the partial filing fee. The court of appeals for the ninth circuit reversed and remanded.
The appeals court noted that a district court may consider a plaintiff's cash flow in the recent past and may also require a plaintiff to justify the depletion of a previously adequate account.
The appellate court held "Before the court requires a fee greater than the plaintiff's assets based on a recent depletion of an account, however, it must notify the plaintiff and give him a chance to show that the depletion was not a deliberate attempt to avoid the filing fee.... When a prisoner has lost his source of income, a fee based on his average income over the past few months may be inappropriate."
The appeals court remanded the case for Alexander to have an opportunity to explain why he had no funds to pay the five dollar filing fee despite a recent average income of $27.67 a month. See: Alexander v. Carson Adult High School, 9 F.3d 1448 (9th Cir. 1993).
Alexander had 29¢ on his account when he filed suit but had an average income of $27.67 over the preceding six months. The district court required him to pay a five dollar filing fee based on it's chart. Alexander filed a motion asking the court to reconsider it's order stating that he had no assets, had lost his prison job and no longer had an income. The district court denied the motion but gave Alexander an additional 60 days in which to pay the partial filing fee. The court of appeals for the ninth circuit reversed and remanded.
The appeals court noted that a district court may consider a plaintiff's cash flow in the recent past and may also require a plaintiff to justify the depletion of a previously adequate account.
The appellate court held "Before the court requires a fee greater than the plaintiff's assets based on a recent depletion of an account, however, it must notify the plaintiff and give him a chance to show that the depletion was not a deliberate attempt to avoid the filing fee.... When a prisoner has lost his source of income, a fee based on his average income over the past few months may be inappropriate."
The appeals court remanded the case for Alexander to have an opportunity to explain why he had no funds to pay the five dollar filing fee despite a recent average income of $27.67 a month. See: Alexander v. Carson Adult High School, 9 F.3d 1448 (9th Cir. 1993).
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Related legal case
Alexander v. Carson Adult High School
| Year | 1993 |
|---|---|
| Cite | 9 F.3d 1448 (9th Cir. 1993) |
| Level | Court of Appeals |
Alexander v. Carson Adult High School, 9 F.3d 1448 (9th Cir. 08/05/1993)
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 93-15522
[3] 1993; 9 F.3d 1448
[4] *fn* submitted: August 5, 1993.
[5] KHALID ALEXANDER, PLAINTIFF-APPELLANT,
v.
CARSON ADULT HIGH SCHOOL; JIM PADGETT, EXECUTIVE OFFICER; KAREN OWEN, DEFENDANTS-APPELLEES.
[6] Appeal from the United States District Court for the District of Nevada. D.C. No. CV-92-00519-EC. Edward C. Reed, Jr., District Judge, Presiding.
[7] Khalid Alexander, Carson City, Nevada, pro se for the plaintiff-appellant.
[8] No appearance by the defendants-appellees.
[9] Before: Herbert Y. C. Choy, Alfred T. Goodwin, and Otto R. Skopil, Jr., Circuit Judges. Opinion by Judge Skopil.
[10] Author: Skopil
[11] SKOPIL, Circuit Judge:
[12] Khalid Alexander appeals the district court's dismissal of his action for failure to pay a five dollar partial filing fee. We review the district court's decision to impose a partial fee pursuant to the in forma pauperis statute, 28 U.S.C. § 1915, for an abuse of discretion. See O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). Although "district courts enjoy wide discretion in deciding whether a partial fee is fair and appropriate in a particular case," Johnson v. Kemp, 781 F.2d 1570, 1571 (11th Cir. 1986) (finding abuse of discretion), that discretion is not unbridled. In re Epps, 888 F.2d 964, 967 (2d Cir. 1989) (no discretion to deprive litigants of their last dollar); In re Williamson, 786 F.2d 1336, 1340 (8th Cir. 1986); Green v. Estelle, 649 F.2d 298, 302 (5th Cir. 1981).
[13] The Nevada District Court has initiated a partial filing fee for prisoners proceeding in forma pauperis based on either the value of their assets, or their average income over the past six months, whichever is greater. Alexander had twenty-nine cents in his account when he filed his case, but had an average income over the past six months of $27.67. The district court required him to pay a five dollar fee based on its fee chart. Alexander filed a motion to reconsider, stating that he had no assets and had lost his job and no longer had an income. The district court denied the motion, but granted an extra sixty days to pay the fee.
[14] When determining the ability of an in forma pauperis plaintiff to pay a partial filing fee, the court may consider the plaintiff's cash flow in the recent past, and the extent to which the plaintiff has depleted his savings on nonessentials. Wiideman v. Harper, 754 F. Supp. 808, 811-12 (D. Nev. 1990); Epps, 888 F.2d at 967-68. If the plaintiff has depleted a previously adequate account and cannot pay the partial fee, the court may require the plaintiff to justify the depletion. Collier v. Tatum, 722 F.2d 653, 655-56 (11th Cir. 1983).
[15] Before the court requires a fee greater than the plaintiff's assets based on a recent depletion of an account, however, it must notify the plaintiff and give him a chance to show that the depletion was not a deliberate attempt to avoid the filing fee. Williamson, 786 F.2d at 1340-41; Johnson, 781 F.2d at 1572; Collier, 722 F.2d at 655-56; Wiideman, 754 F. Supp. at 811. When a prisoner has lost his source of income, a fee based on his average income over the past few months may be inappropriate. See Epps, 888 F.2d at 967; Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir. 1983); Green, 649 F.2d at 302.
[16] The record in this case indicates that the district court imposed the five dollar filing fee without giving Alexander the opportunity to explain why he had no funds in his account despite his recent average income of $27.67 a month. We remand to the district court with instructions to provide Alexander with that opportunity.
[17] REVERSED and REMANDED.
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General Footnotes
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[18] *fn* The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4.
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[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 93-15522
[3] 1993; 9 F.3d 1448
[4] *fn* submitted: August 5, 1993.
[5] KHALID ALEXANDER, PLAINTIFF-APPELLANT,
v.
CARSON ADULT HIGH SCHOOL; JIM PADGETT, EXECUTIVE OFFICER; KAREN OWEN, DEFENDANTS-APPELLEES.
[6] Appeal from the United States District Court for the District of Nevada. D.C. No. CV-92-00519-EC. Edward C. Reed, Jr., District Judge, Presiding.
[7] Khalid Alexander, Carson City, Nevada, pro se for the plaintiff-appellant.
[8] No appearance by the defendants-appellees.
[9] Before: Herbert Y. C. Choy, Alfred T. Goodwin, and Otto R. Skopil, Jr., Circuit Judges. Opinion by Judge Skopil.
[10] Author: Skopil
[11] SKOPIL, Circuit Judge:
[12] Khalid Alexander appeals the district court's dismissal of his action for failure to pay a five dollar partial filing fee. We review the district court's decision to impose a partial fee pursuant to the in forma pauperis statute, 28 U.S.C. § 1915, for an abuse of discretion. See O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). Although "district courts enjoy wide discretion in deciding whether a partial fee is fair and appropriate in a particular case," Johnson v. Kemp, 781 F.2d 1570, 1571 (11th Cir. 1986) (finding abuse of discretion), that discretion is not unbridled. In re Epps, 888 F.2d 964, 967 (2d Cir. 1989) (no discretion to deprive litigants of their last dollar); In re Williamson, 786 F.2d 1336, 1340 (8th Cir. 1986); Green v. Estelle, 649 F.2d 298, 302 (5th Cir. 1981).
[13] The Nevada District Court has initiated a partial filing fee for prisoners proceeding in forma pauperis based on either the value of their assets, or their average income over the past six months, whichever is greater. Alexander had twenty-nine cents in his account when he filed his case, but had an average income over the past six months of $27.67. The district court required him to pay a five dollar fee based on its fee chart. Alexander filed a motion to reconsider, stating that he had no assets and had lost his job and no longer had an income. The district court denied the motion, but granted an extra sixty days to pay the fee.
[14] When determining the ability of an in forma pauperis plaintiff to pay a partial filing fee, the court may consider the plaintiff's cash flow in the recent past, and the extent to which the plaintiff has depleted his savings on nonessentials. Wiideman v. Harper, 754 F. Supp. 808, 811-12 (D. Nev. 1990); Epps, 888 F.2d at 967-68. If the plaintiff has depleted a previously adequate account and cannot pay the partial fee, the court may require the plaintiff to justify the depletion. Collier v. Tatum, 722 F.2d 653, 655-56 (11th Cir. 1983).
[15] Before the court requires a fee greater than the plaintiff's assets based on a recent depletion of an account, however, it must notify the plaintiff and give him a chance to show that the depletion was not a deliberate attempt to avoid the filing fee. Williamson, 786 F.2d at 1340-41; Johnson, 781 F.2d at 1572; Collier, 722 F.2d at 655-56; Wiideman, 754 F. Supp. at 811. When a prisoner has lost his source of income, a fee based on his average income over the past few months may be inappropriate. See Epps, 888 F.2d at 967; Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir. 1983); Green, 649 F.2d at 302.
[16] The record in this case indicates that the district court imposed the five dollar filing fee without giving Alexander the opportunity to explain why he had no funds in his account despite his recent average income of $27.67 a month. We remand to the district court with instructions to provide Alexander with that opportunity.
[17] REVERSED and REMANDED.
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General Footnotes
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[18] *fn* The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4.
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