Tag Archives: in forma pauperis

Two IFP/FRP Cases Are Wins for Prisoners – Update for November 28, 2023

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1500th-231128We posted our first article on federal criminal justice issues on February 16, 2014, with no real idea where this might lead.  Today, we celebrate our 1500th post on trial and post-conviction matters, legislative initiatives, and sentencing issues.

MONEY, THAT’S WHAT I WANT

Two decisions last week ease the burden for prisoners seeking to get in forma pauperis (IFP) status in civil and criminal cases and to get Inmate Financial Responsibility Program (FRP) withholding changed.

moneythatswhat231128

IFP: First, an explainer. Court’s ain’t free. Even if you decide to represent yourself (largely, a stupid idea we’ll discuss some other time), there are fees and costs. Of course, the decision to go pro se (represent yourself instead of hiring a lawyer) is usually driven by necessity: if you don’t have any money, hiring a mouthpiece is hardly an option.

Federal courts grant in forma pauperis status to people who cannot afford the $402.00 district court filing fee or the $505.00 fee for filing a notice of appeal (and thus starting an appeal). To get IFPstatus, one must file an affidavit setting out income and expenses, assets and liabilities. It’s not automatic: sometimes the affiant has too much in the bank or makes too much. But, as you can imagine, for prisoners making $5.00 a month, IFP is a necessity if they have a civil action – a tort claim, a constitutional violation for crappy medical care, even an appeal of a 28 USC § 2255 motion – to bring.

Alex Rosa sued the Connecticut prison system in federal court, alleging he received constitutionally inadequate medical care. He applied for IFP status because he believed he couldn’t pay the $402 filing fee while paying for the “necessities of life.” The district court noted that Alex reported receiving $1,200 in federal COVID stimulus funds and had an average balance of about $600 over the last six months in his prison account. The district court noted that “[a]s a prisoner, Rosa does not pay for room or board” and could “discern no reason why requiring Rosa to pay the filing fee of $402 would force him to forego the necessities of life or abandon this action.” Rosa complained that he had to send money to his family, but the district court said “that funds Rosa chose to give his mother and son, even if for their essentials, could have instead been used to pay the filing fee in his suit.”

badjudge171016Last week, the 2nd Circuit reversed. An IFP motion “meets 28 USC § 1915(a)’s standard for grant when it demonstrates that the applicant cannot “pay or give security for the costs and still be able to provide himself and dependents with the necessities of life,” the Circuit ruled. To require IFP applicants to “have sworn to contribute to payment of costs the last dollar they have . . . and thus make themselves and their dependents wholly destitute would be to construe the statute in a way that would throw its beneficiaries into the category of public charges.”

IFRP: Criminal defendants are charged at minimum $100.00 for every count of conviction, the so-called special assessment. Beyond that, they are required to pay restitution for victims’ losses and, occasionally, fines and criminal forfeitures.

The Federal Bureau of Prisons runs the IFRP to force inmates to make regular payments toward their court obligations.  I am sure the BOP would quibble with my use of the word “force.” An inmate is not forced to participate, but if he or she refuses, the inmate will be denied FSA credits, will be reduced to being allowed to buy only a handful of items from the commissary, will be denied halfway house or home confinement, will not be able to earn more than a bare subsistence pay of a little more than $5.00 a month, will be housed in the lowest form of housing available, will not be allowed to work outside the fence even if he or she has the appropriate security and custody rating, and will not get a year off as incentive for completing the RDAP drug abuse program.  Read the list, starting at page 11 of the BOP Program Statement.

pooremptypockets231017Eric Sweatt is doing time for bank robbery. He had been paying into FRP while he was working UNICOR, but he got sick and was sent to a BOP medical facility, where – as a patient – he was not allowed to work. Eric declined FRP while he had no income, for which he was punished by BOP rules for FRP refusniks. He then filed a motion under 18 USC § 3664(k) to modify his judgment to halt his restitution payments until he recovered from surgery. If the court said Eric didn’t owe while incarcerated, the BOP could not force FRP on him.

The district court ruled it lacked authority to modify FRP payment plans. Earlier this month, the 7th Circuit reversed.

The 7th observed that Eric did not seek “to alter the fact or amount of restitution or to usurp the BOP’s exclusive authority to impose a pre-release payment plan. He requested only that the court adjust his ‘payment terms’ based on a change in his economic circumstances… In general, district courts lack jurisdiction to modify a sentence, but they can do so when authorized by statute… And as Sweatt pointed out, 3664(k) gives the district court the authority to do what he asked.”

Rosa v. Doe, Case Nos. 21-2628(L), 2023 U.S.App. LEXIS 30785 (2d Cir., Nov. 20, 2023)

United States v. Sweatt, Case No. 23-1752, 2023 U.S.App. LEXIS 29798 (7th Cir., Nov. 8, 2023)

– Thomas L. Root

7th Circuit Limits Court’s Dive Into Prisoner’s Pockets – Update for October 17, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HOW MUCH IS TOO MUCH FOR IFP?

The right of access to the courts is not forfeited by indigent people (including prisoners), a constitutional imperative for the past 75 years or so. The Prison Litigation Reform Act tried the limit that right by hobbling would-be litigants, due to what politicians perceived to be abuses of the federal courts by prisoners with grievances,

broke191011One provision requires prisoners to pay filing fees upfront unless they can prove poverty. If they are successful, prisoners may proceed in forma pauperis (IFP), but the courts extract the filing fees from their prison commissary accounts at a set rate.  An indigent who is not a prisoner is not subject to this limitation.

To gain IFP status, and thus to avoid prepaying a $405 U.S. District Court filing fee, prisoners must – among other things – file an affidavit including a printout of their inmate trust accounts (commissary account) showing how much they collected and spent for the past 6 months.

But how much can you have in the account before you’re too rich to be poor? Jordan Whitaker, an Illinois prisoner, found that out last week. He wanted to appeal the loss of a federal suit against his state prison. His IFP filing showed his commissary account had $575, more than enough to cover the $505 filing fee, on the day his notice of appeal was filed, so the district court denied his request and told him to pay.

Last week, a 7th Circuit judge reversed the district court, holding that “the district court did not adequately consider the balance the Prison Litigation Reform Act (PLRA) struck between the need to collect fees and a prisoner’s discretionary use of his funds.”

IFP status is an exception to the normal rule in federal court that parties must prepay fees when filing litigation. But if a prisoner shows he or she is indigent, the PLRA requires the court to collect 20% of the prisoner’s average monthly deposits or balances in the past six months (whichever is higher) and then collect the remainder of the fees in installments based on 20% of the prisoner’s monthly income until the full debt is paid.

pooremptypockets231017Here, the 7th said, “drawing the line for in forma pauperis eligibility at the mere ability to pay the full filing fee fails to respect Congress’s compromise. Worse, it can lead to odd results that Congress likely did not intend. For example, such a rule creates a sharp welfare cliff: a prisoner with a consistent monthly income of $504 that he spent in full would need to pay only $100.80, but a prisoner like Whitaker with a balance of a few dollars more would need to pay almost everything he has, regardless of his income… A court may well have discretion to find a prisoner ineligible short of the point where the outcome of the statutory formula exceeds the full fee, but Whitaker’s income and assets are nowhere close to that limit…Whitaker should be permitted to prepay the prescribed portion of the fee with the rest to be collected from his future income, as Congress envisioned.”

Whitaker v. Dempsey, Case No 23-1086, 2023 U.S. App. LEXIS 26851 (7th Cir. Oct 10, 2023)

– Thomas L. Root

11th Circuit Calls One for the Batter – Update for February 10, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUMMARY JUDGMENT LOSS NOT A ‘STRIKE’

A prisoner unable to pay court fees may proceed in forma pauperis, that is, without prepaying fees. The Prison Litigation Reform Act, however, bars a prisoner from proceeding in forma pauperis if he or she has brought three or more actions or appeals in a federal court that were dismissed as frivolous, malicious, or for failing to state a claim upon which relief may be granted. This is called the “three-strikes rule.”

Jeremy Wells had filed three prior actions against state prison officials. One was dismissed for failing to state a claim.  A second was dismissed for failure to exhaust remedies, and the third was denied on summary judgment for the same reason. When he filed a new case, he was denied in forma pauperis status under the “three strikes rule.”

strikethree2302310Last week, the 11th Circuit allowed Jeremy to proceed in forma pauperis. “Summary judgment based on evidence outside the face of the complaint or on something other than the allegations in the complaint is not a dismissal for failure to state a claim,” the Circuit ruled. “A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. Summary judgment, on the other hand, asks whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Wells v. Brown, Case No 21-10550, 2023 U.S. App. LEXIS 2582 (11th Cir., February 1, 2023)

– Thomas L. Root

Too Much Frivolity For a Lawyer? – Update for May 9, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

APPLES AND ORANGES

noBS190509A long time ago, Congress decided that prisoners filed too many nonsense lawsuits. There was no cost to the prisoner, who always qualified for in forma pauperis status (which meant, among other things, that the prisoner did not have to pay the federal district court filing fee of $400.00 plus). So in 1996, Congress amended 28 USC § 1915, which requires courts to perform what one lawyer I know crudely but accurately calls the “bullshit review.” If after the judge casts his or her practiced eye on the complaint, the court decides that the complaint is utter crap – known in the legal world as “frivolous” – the prisoner will be denied in forma pauperis status. Of course, the inmate can still go forward by paying the filing fee, but for a guy making a quarter an hour, $400.00 buys a lot of Honeybuns at the commissary.

But that’s all in the civil litigation world. If you find yourself behind the criminal 8-ball, things are different. Apples and oranges.

Matthew Didham wanted to appeal the district court’s revocation of his supervised release. He asked for appointment of counsel, because he could not afford to keep paying his retained attorney, who withdrew after Matt was revoked.

The district court turned him down, because Matt had $750 in his commissary account, and therefore, the court reasoned, he could afford the appeal filing fee. Plus, the district judge found, citing 28 USC § 1915(a)(3), Matt’s appeal was frivolous, because he had “not articulated any argument to suggest that the court revoked his supervised release in error.”

Last week, the 7th Circuit reversed, and appointed counsel for Matt. It held that the district court had confused apples for oranges, applying the statute which applies for prisoners’ civil appeals, with the Criminal Justice Act, governing criminal and supervised release appeals. In 28 USC § 1915 cases, the court can deny counsel if the filing is frivolous. But for a supervised release violation, the right to counsel is set out in 18 USC § 3006A “for any person financially unable to obtain adequate representation.” It is not for the district judge to deny where he thinks he was right, and an appeal of his decision must therefore be wrong.

United States v. Durham, 2019 U.S. App. LEXIS 13264 (7th Cir.  May 2, 2019)

– Thomas L. Root