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Washington Cost Bill PI Vacated
In the February, 1996, issue of PLN we reported Richey v. Nerup, the unpublished ruling by federal judge Quakenbush in Spokane, WA who entered a Preliminary Injunction (PI) on September 14, 1995, enjoining the Washington DOC from seizing funds from prisoner litigants assessed cost bills in unsuccessful civil rights actions. The court ruled that the cost bills were sought by the attorney generals office in retaliation for prisoners exercising their right of access to the courts and was designed to chill that right. The court also held the DOC lacked statutory authority to seize prisoner funds to satisfy cost bills.
The DOC defendants appealed and the court of appeals for the ninth circuit, in an unpublished ruling, vacated that portion of the PI concerning the lack of statutory authority for the seizure of funds involving cost bills because on June 7, 1996, the Washington legislature enacted SSB 6315 which amended RCW 72.09.450 to allow the DOC to seize prisoners' funds to satisfy cost bills. [See PLN, July, 1996.]
"The district court's injunction only prevented the department from freezing or withdrawing funds without statutory or court ordered authority. The recent enactment by the Washington legislature, signed by the governor, provides such authority. By its own terms, the district court's injunction no longer prevents the department from recouping the funds owed to it." The court held the statutory change was sufficient to make the injunction moot. The court noted the entire claim was not moot "Because the plaintiffs may still obtain relief on their underlying claim for damages." The case was remanded to the district court for further proceedings. The district court's ruling on retaliation and that the prisoners' funds were being seized without due process were not disturbed. Both rulings are unpublished and cannot be cited as binding precedent. However, as a practical matter, any Washington prisoner who had funds seized prior to June 7, 1996, to satisfy a cost bill can sue prison officials and the responsible member of the attorney generals office for taking the money without statutory authority. See: Jirovec v. Blodgett, 1996 WL 654441 (9th Cir. WA).
The best way to avoid this situation is to oppose a cost bill if the plaintiff loses. [See: "How to Defend Against a Bill of Costs." PLN, June, 1993.] The Prison Litigation Reform Act also places limits on how much money can be taken when a prisoner litigant is assessed costs he cannot pay all at once. While many prison systems simply seize all or most of a prisoners funds under guise of recouping costs, this practice violates 28 U.S.C. § 1915(f)(2)(A), which could provide a separate cause of action.
The DOC defendants appealed and the court of appeals for the ninth circuit, in an unpublished ruling, vacated that portion of the PI concerning the lack of statutory authority for the seizure of funds involving cost bills because on June 7, 1996, the Washington legislature enacted SSB 6315 which amended RCW 72.09.450 to allow the DOC to seize prisoners' funds to satisfy cost bills. [See PLN, July, 1996.]
"The district court's injunction only prevented the department from freezing or withdrawing funds without statutory or court ordered authority. The recent enactment by the Washington legislature, signed by the governor, provides such authority. By its own terms, the district court's injunction no longer prevents the department from recouping the funds owed to it." The court held the statutory change was sufficient to make the injunction moot. The court noted the entire claim was not moot "Because the plaintiffs may still obtain relief on their underlying claim for damages." The case was remanded to the district court for further proceedings. The district court's ruling on retaliation and that the prisoners' funds were being seized without due process were not disturbed. Both rulings are unpublished and cannot be cited as binding precedent. However, as a practical matter, any Washington prisoner who had funds seized prior to June 7, 1996, to satisfy a cost bill can sue prison officials and the responsible member of the attorney generals office for taking the money without statutory authority. See: Jirovec v. Blodgett, 1996 WL 654441 (9th Cir. WA).
The best way to avoid this situation is to oppose a cost bill if the plaintiff loses. [See: "How to Defend Against a Bill of Costs." PLN, June, 1993.] The Prison Litigation Reform Act also places limits on how much money can be taken when a prisoner litigant is assessed costs he cannot pay all at once. While many prison systems simply seize all or most of a prisoners funds under guise of recouping costs, this practice violates 28 U.S.C. § 1915(f)(2)(A), which could provide a separate cause of action.
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Related legal case
Jirovec v. Blodgett
| Year | 1996 |
|---|---|
| Cite | 1996 WL 654441 (9th Cir. WA) |
| Level | Court of Appeals |
100 F.3d 962 (Table), 1996 WL 654441 (9th Cir.(Wash.)) Unpublished Disposition
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA9 Rule 36-3 for rules regarding the citation of unpublished opinions.)
United States Court of Appeals, Ninth Circuit.
David E. JIROVEC, Plaintiff-Appellee,
v.
James BLODGETT, Defendant,
and
O. Patton; C/O Belanger; C/O Skramstad; Tucker, C/O; Mike Strang; Merill,
C/O; Croghan, C/O, Defendants-Appellants.
Don D. HEMPHILL, Plaintiff-Appellee,
v.
Lawrence KINCHELOE, Warden; Amos Reed; Robert Zabor; Pete Lewis; Robert
Hults; Parley Edwards; Brent Hodkins, Defendants-Appellants.
Thomas W.S. RICHEY, Plaintiff-Appellee,
v.
Penelope NERUP; Douglass Carr, Defendants-Appellants.
David E. JIROVEC, Plaintiff-Appellee,
v.
James BLODGETT, Defendant,
and
Larry Sutton; Robert Jarrell, Defendants-Appellants.
Nos. 95-36039, 95-36040, 95-36041 and 95-36043.
Submitted Nov. 5, 1996. [FN*]
FN* The panel unanimously finds this decision suitable for decision without oral argument pursuant to Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4.
Decided Nov. 8, 1996.
Appeal from the United States District Court for the Eastern District of Washington, Nos. CV-92-00241-JLQ, CV-86-00953-JLQ, CV-93-00362-JLQ and CV-91-00438-JBH; Justin L. Quackenbush, Senior District Judge, Presiding.
E.D.Wash.
VACATED.
Before: WRIGHT, BRUNETTI, and O'SCANNLAIN, Circuit Judges.
MEMORANDUM [FN**]
FN** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
**1 We must decide whether an appeal of a preliminary injunction is moot when an intervening state enactment satisfies the terms of the injunction.
Officers of the Washington State Department of Corrections ("Department") appeal the entry of a preliminary injunction order on September 14, 1995 prohibiting them from "freezing and/or withdrawing funds from prisoner trust accounts for the payment of civil judgments for cost bills owing to [the Department], absent legislative authority to do so pursuant to statute, or process or order of the court to that effect." At the time of the order, there was no explicit statutory provision authorizing the Department to withdraw funds from prisoner trust accounts for cost bills.
On June 7, 1996, Washington Substitute Senate Bill 6315 went into effect. It amended RCW 72.09.450 to read:
(3) The department shall record as a debt any costs assessed by a court against an inmate plaintiff where the state is providing defense pursuant to chapter 4.92 RCW. The department shall recoup the debt when the inmate's institutional account exceeds the indigency standard and may pursue other remedies to recoup the debt after the period of incarceration.
Based on this new statutory enactment, the Department officials--the appellants--have moved to vacate the district court's order as moot and to remand the case to the district court.
This case is before us as an appeal from an interlocutory order granting a preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). The only question raised, therefore, is whether the district court abused its discretion in issuing the preliminary injunction. See University of Texas v. Camenisch, 451 U.S. 390, 393 (1981). The merits of the underlying claims raised by the plaintiffs are not before us. Id.
The district court's injunction only prevented the officers of the Department from freezing or withdrawing funds without statutory or court-ordered authority. The recent enactment by the Washington legislature, signed by the Governor, provides such authority. By its own terms, the district court's injunction no longer prevents the Department from recouping the funds owed to it. Since the injunction no longer has any meaningful effect, "the parties lack a legally cognizable interest in the determination whether the preliminary injunction was properly granted," Camenisch, 451 U.S. at 394, and the appeal from the preliminary injunction is moot. Kitlutsisti v. Arco Alaska, Inc., 782 F.2d 800 (9th Cir.1986) (interlocutory appeal was moot after permits were granted when injunction prohibited only drilling without permits); see Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.1994) ( "A statutory change ... is usually enough to render a case moot.").
The case as a whole is not moot, however, because the plaintiffs may still obtain relief on their underlying claims for damages. The appropriate action is to vacate the district court's order and remand the case for consideration of the remaining issues. Camenisch, 451 U.S. at 394. Although we do not need to address the officers' other claims, we note that the case of Don D. Hemphill (No. 95-36040) may be moot because the funds withdrawn from his account appear to have been repaid and he now has been released from prison. We also note that the case of David E. Jirovec (No. 95-36039) may be moot since it appears that no cost bill was entered against Jirovec in his prior action. On remand, the district court should consider these questions.
**2 The district court's order granting a preliminary injunction is VACATED, and these cases are REMANDED to the district court.
"Thomas W.S. RICHEY, Plaintiff-Appellee, v. Penelope NERUP, et al., Defendants-Appellants. Don D. Hemphill, Plaintiff-Appellee, v. Lawrence Knicheloe, Warden, et al., Defendants-Appellants. David E. Jirovec, Plaintiff-Appellee, James Blodgett, Defendant, O. Patton, et al., Defendants-Appellants. David E. Jirovec, Plaintiff-Appellee, v. James Blodgett, et al., Defendants-Appellants. v., 1996 WL 33488873 (Appellate Brief) (C.A.9 January 18, 1996), Consolidated Brief of Defendants-Appellants
"Thomas W.S. RICHEY, Plaintiff-Appellee, v. Penelope NERUP, et al., Defendants-Appellants. Don D. Hemphill, Plaintiff-Appellee, v. Lawarance Kincheloe, Warden, et al., Defendants-Appellants. David E. Jirovec, Plaintiff-Appellee, v. James Blodgett, Defendant, O. Patton, et al., Defendants-Appellants. David E. Jiroverc, Plaintiff-Appellee, v. James Blodgett, et al., Defendants-Appellants., 1996 WL 33488872 (Appellate Brief) (C.A.9 March 27, 1996), Consolidated Reply Brief of Defendants-Appellants
100 F.3d 962 (Table), 1996 WL 654441 (9th Cir.(Wash.)) Unpublished Disposition
END OF DOCUMENT
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA9 Rule 36-3 for rules regarding the citation of unpublished opinions.)
United States Court of Appeals, Ninth Circuit.
David E. JIROVEC, Plaintiff-Appellee,
v.
James BLODGETT, Defendant,
and
O. Patton; C/O Belanger; C/O Skramstad; Tucker, C/O; Mike Strang; Merill,
C/O; Croghan, C/O, Defendants-Appellants.
Don D. HEMPHILL, Plaintiff-Appellee,
v.
Lawrence KINCHELOE, Warden; Amos Reed; Robert Zabor; Pete Lewis; Robert
Hults; Parley Edwards; Brent Hodkins, Defendants-Appellants.
Thomas W.S. RICHEY, Plaintiff-Appellee,
v.
Penelope NERUP; Douglass Carr, Defendants-Appellants.
David E. JIROVEC, Plaintiff-Appellee,
v.
James BLODGETT, Defendant,
and
Larry Sutton; Robert Jarrell, Defendants-Appellants.
Nos. 95-36039, 95-36040, 95-36041 and 95-36043.
Submitted Nov. 5, 1996. [FN*]
FN* The panel unanimously finds this decision suitable for decision without oral argument pursuant to Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4.
Decided Nov. 8, 1996.
Appeal from the United States District Court for the Eastern District of Washington, Nos. CV-92-00241-JLQ, CV-86-00953-JLQ, CV-93-00362-JLQ and CV-91-00438-JBH; Justin L. Quackenbush, Senior District Judge, Presiding.
E.D.Wash.
VACATED.
Before: WRIGHT, BRUNETTI, and O'SCANNLAIN, Circuit Judges.
MEMORANDUM [FN**]
FN** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
**1 We must decide whether an appeal of a preliminary injunction is moot when an intervening state enactment satisfies the terms of the injunction.
Officers of the Washington State Department of Corrections ("Department") appeal the entry of a preliminary injunction order on September 14, 1995 prohibiting them from "freezing and/or withdrawing funds from prisoner trust accounts for the payment of civil judgments for cost bills owing to [the Department], absent legislative authority to do so pursuant to statute, or process or order of the court to that effect." At the time of the order, there was no explicit statutory provision authorizing the Department to withdraw funds from prisoner trust accounts for cost bills.
On June 7, 1996, Washington Substitute Senate Bill 6315 went into effect. It amended RCW 72.09.450 to read:
(3) The department shall record as a debt any costs assessed by a court against an inmate plaintiff where the state is providing defense pursuant to chapter 4.92 RCW. The department shall recoup the debt when the inmate's institutional account exceeds the indigency standard and may pursue other remedies to recoup the debt after the period of incarceration.
Based on this new statutory enactment, the Department officials--the appellants--have moved to vacate the district court's order as moot and to remand the case to the district court.
This case is before us as an appeal from an interlocutory order granting a preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). The only question raised, therefore, is whether the district court abused its discretion in issuing the preliminary injunction. See University of Texas v. Camenisch, 451 U.S. 390, 393 (1981). The merits of the underlying claims raised by the plaintiffs are not before us. Id.
The district court's injunction only prevented the officers of the Department from freezing or withdrawing funds without statutory or court-ordered authority. The recent enactment by the Washington legislature, signed by the Governor, provides such authority. By its own terms, the district court's injunction no longer prevents the Department from recouping the funds owed to it. Since the injunction no longer has any meaningful effect, "the parties lack a legally cognizable interest in the determination whether the preliminary injunction was properly granted," Camenisch, 451 U.S. at 394, and the appeal from the preliminary injunction is moot. Kitlutsisti v. Arco Alaska, Inc., 782 F.2d 800 (9th Cir.1986) (interlocutory appeal was moot after permits were granted when injunction prohibited only drilling without permits); see Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.1994) ( "A statutory change ... is usually enough to render a case moot.").
The case as a whole is not moot, however, because the plaintiffs may still obtain relief on their underlying claims for damages. The appropriate action is to vacate the district court's order and remand the case for consideration of the remaining issues. Camenisch, 451 U.S. at 394. Although we do not need to address the officers' other claims, we note that the case of Don D. Hemphill (No. 95-36040) may be moot because the funds withdrawn from his account appear to have been repaid and he now has been released from prison. We also note that the case of David E. Jirovec (No. 95-36039) may be moot since it appears that no cost bill was entered against Jirovec in his prior action. On remand, the district court should consider these questions.
**2 The district court's order granting a preliminary injunction is VACATED, and these cases are REMANDED to the district court.
"Thomas W.S. RICHEY, Plaintiff-Appellee, v. Penelope NERUP, et al., Defendants-Appellants. Don D. Hemphill, Plaintiff-Appellee, v. Lawrence Knicheloe, Warden, et al., Defendants-Appellants. David E. Jirovec, Plaintiff-Appellee, James Blodgett, Defendant, O. Patton, et al., Defendants-Appellants. David E. Jirovec, Plaintiff-Appellee, v. James Blodgett, et al., Defendants-Appellants. v., 1996 WL 33488873 (Appellate Brief) (C.A.9 January 18, 1996), Consolidated Brief of Defendants-Appellants
"Thomas W.S. RICHEY, Plaintiff-Appellee, v. Penelope NERUP, et al., Defendants-Appellants. Don D. Hemphill, Plaintiff-Appellee, v. Lawarance Kincheloe, Warden, et al., Defendants-Appellants. David E. Jirovec, Plaintiff-Appellee, v. James Blodgett, Defendant, O. Patton, et al., Defendants-Appellants. David E. Jiroverc, Plaintiff-Appellee, v. James Blodgett, et al., Defendants-Appellants., 1996 WL 33488872 (Appellate Brief) (C.A.9 March 27, 1996), Consolidated Reply Brief of Defendants-Appellants
100 F.3d 962 (Table), 1996 WL 654441 (9th Cir.(Wash.)) Unpublished Disposition
END OF DOCUMENT