Fourth Circuit Chides Virginia Magistrate for Assuming Prisoners Proceed IFP
by Douglas Ankney
The U.S. Court of Appeals for the Fourth Circuit held on November 15, 2023, that a lower court erred in assuming that a group of Virginia prisoners proceeded in forma pauperis (IFP) when they sued federal Internal Revenue Service (IRS) Commissioner Daniel I. Werfel for COVID-19 stimulus payments that they never received.
Under 28 U.S.C. § 1915(b)(1), as amended by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, prisoners filing suit in federal court may proceed IFP and have filing fees waived under certain conditions, one of which prohibits joining one another’s suits. But Buckingham Correctional Center prisoners Kevin Ballance, Aaron Ellis, Dwayne Young and Vincent Spinner paid the full $402 filing fee when they filed their complaint pro se in federal court for the Western District of Virginia.
A magistrate, however, assumed sua sponte that they were proceeding IFP and severed their suit into separate actions for each Plaintiff, including five more that the original four asked to add, saying that all nine each needed to pay the full filing fee before they could proceed. The magistrate added that it was “clear” from their pleadings that Plaintiffs had gotten Ballance to write them, but he could not do so since he was not an attorney. The prisoners filed objections, noting they were not proceeding IFP and had satisfied joinder requirements under Fed. Rule Civ. Proc. 20. They also said Ballance was not acting as their attorney but had merely been tapped for his superior handwriting to draft their pleadings—which looked similar because their claims were the same. The district court overruled those objections and adopted the magistrate’s recommendation. Plaintiffs then appealed.
After consolidating their appeals, the Fourth Circuit began by observing that § 1915(b)(1), “by its explicit terms, is restricted to in forma pauperis actions.” So the district court should not have applied it to Plaintiffs. Nor should it have severed their claims or denied a motion to amend their complaint to add five additional prisoners. As for finding that “Ballance was improperly representing” Plaintiffs, the Court said that “was not supported by the record.”
“To the contrary,” the Court continued, Ballance was reportedly drafted for his handwriting, he did not sign pleadings on anyone’s behalf, and the other Plaintiffs’ signatures were “the only evidence in the record on this point.” So factual findings otherwise were “clearly erroneous,” and severing the claims based on those findings was an abuse of discretion. Accordingly, the Court vacated the district court’s order and remanded the case. Before the Court, the prisoners were represented by attorneys with the Roderick and Solange MacArthur Justice Center in Washington, D.C. See: Ellis v. Werfel, 86 F.4th 1032 (4th Cir. 2023).
Back at the district court, Plaintiffs were ordered to present the stimulus amounts they allegedly were owed. Only Ellis, Young and Spinner complied, so the rest were dismissed. Judge James P. Jones then dismissed claims by the remaining three on June 11, 2024, finding that laws which authorized COVID-19 stimulus payments did not authorize a suit to recover them. The judge therefore construed the action as one seeking an extension of the federal government’s liability for damages in a civil rights action, first laid out in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); however, the circumstances of this case were not like those recognized in previous Bivens suits, and the Supreme Court of the U.S. has forbidden further expansion, as PLN has reported. [See: PLN, Apr. 2023, p.32.] The prisoners’ complaint was therefore dismissed, with prejudice. See: Ballance v. Rettig, 2024 U.S. Dist. LEXIS 103701 (W.D. Va.).
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