MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this Privacy Act and civil rights action. (ECF Nos. 8 & 13.) The action proceeds on Plaintiff's Privacy Act claim against the Federal Bureau of Prisons (BOP) and his First and Eighth Amendment claims against Defendant Valero. (ECF Nos. 15 & 40.) The BOP was served and has appeared in the action. (ECF Nos. 21 & 24.) The United States Marshals Service has been ordered to serve Defendant Valero but service has not yet been effectuated. (ECF No. 45.)
These findings and recommendations address the following motions:
On March 17, 2014, prior to service of the complaint, Plaintiff filed a motion to stay collection from his inmate trust account of filing fees for this action.
On August 8, 2014, the BOP filed a motion to revoke Plaintiff's in forma pauperis status, a motion to dismiss, and a request for judicial notice. (ECF No. 24.) Plaintiff filed an opposition (ECF No. 25), and Defendant filed a reply (ECF No. 26).
On October 22, 2014, Plaintiff filed a motion to declare 28 U.S.C. § 1915(g) unconstitutional. (ECF No. 27.) Defendant filed an opposition. (ECF No. 29.) Plaintiff filed no reply.
On November 10, 2014, Plaintiff filed a "Motion for Relief under PLRA," seeking (1) to stay collection of his filing fees, (2) a declaration that 28 U.S.C. § 1915(g) is unconstitutional, and (3) to split the filing fees for this action among co-plaintiffs. (ECF No. 31.) Defendant filed an opposition. (ECF No. 33.) Plaintiff filed no reply.
These matters are deemed submitted pursuant to Local Rule 230(l).
In relation to its motion to dismiss and motion to revoke Plaintiff's in forma pauperis status, Defendant asks the Court to take judicial notice of pleadings and orders filed in other actions initiated by Plaintiff. (ECF No. 24-2.) Plaintiff does not object to the request. (
Federal Rule of Evidence 201(b)(2) authorizes the Court to judicially notice facts not subject to reasonable dispute, including court records, because they may be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
Judicial notice of the court records included in Defendant's request is proper. Fed. R. Evid. 201(b)(2). Accordingly, Defendant's request should be granted.
On March 10, 2014, the Court granted Plaintiff's motion to proceed in forma pauperis. (ECF No. 13.) Defendant BOP seeks to revoke Plaintiff's in forma pauperis status on the ground that he has brought three or more actions that were dismissed as frivolous, malicious, or failed to state a claim, and he was not in imminent danger of serious physical injury at the time of filing. (ECF Nos. 24 & 26.) Plaintiff concedes that he has at least three "strikes" under the Prison Litigation Reform Act, but argues that he was in imminent danger at the time his complaint was filed. (ECF No. 25.)
It is undisputed that Plaintiff has incurred at least three "strikes" within the meaning of 28 U.S.C. §1915(g). (ECF Nos. 24 & 25.)
28 U.S.C. § 1915 permits a federal court to authorize the commencement and prosecution of an action without prepayment of fees by an individual who submits an affidavit demonstrating that he or she is unable to pay the fees. However,
28 U.S.C. § 1915(g).
The imminent danger exception applies if "the complaint makes a plausible allegation that the prisoner faced `imminent danger of serious physical injury' at the time of filing."
At the time Plaintiff initiated this action, he was incarcerated at the federal Administrative Maximum Facility (ADX) in Florence, Colorado ("ADX — Florence"). He since has been transferred to the Medical Center for Federal Prisoners in Springfield, Missouri. His complaint concerns actions that occurred at United States Penitentiary — Atwater ("USP — Atwater"), although it is unclear whether Plaintiff ever was incarcerated at that facility.
Plaintiff's allegations may be summarized essentially as follows:
Plaintiff is a former member of Florencia 13, a Mexican Mafia subordinate, but since has cooperated with law enforcement, debriefed, and provided testimony against Florencia 13.
In 2010, Plaintiff and other inmates, including Mathew Eyre, filed suit against BOP officials. Eyre subsequently was transferred to USP — Atwater. On July 30, 2012, Defendant Valero questioned Eyre about his participation in the lawsuit, told Eyre to drop the case, called Plaintiff a snitch, and revealed sensitive information from Plaintiff's BOP file. Defendant Valero also stated that several prison gangs would soon know that Eyre was "collaborating with rats."
The Mexican Mafia became aware of Defendant Valero's disclosures and authorized Plaintiff's murder. Other gangs have been solicited to kill Plaintiff. Plaintiff has been assaulted by prison gang members who vowed to kill him. The BOP refused to investigate the matter or provide protection.
Defendant argues primarily that Plaintiff's allegations of imminent danger are not plausible. (ECF No. 24-1 at 5-7.) Defendant notes that Plaintiff has raised the claim that he is subjected to threats and assaults due to being labeled a snitch in at least seven prior cases. Plaintiff raised nearly identical allegations to those in the instant action in
Plaintiff points out that many of his prior cases cited by Defendant are irrelevant to the instant action because they involve different facts. (ECF No. 25.) Other cases did not address the imminent danger inquiry. Another is not final because it is pending on appeal. And in still another, involving "materially identical claims," the court ruled that Plaintiff was in imminent danger for purposes of 28 U.S.C. § 1915(g). Plaintiff states that Defendant has offered nothing other than examples of Plaintiff's litigiousness to undermine the plausibility of his allegations. Other courts have found that similar allegations (raised by other Plaintiffs) satisfy the imminent danger exception.
In reply, Defendant argues that Plaintiff's allegations are baseless because he has been repeating the same allegations of danger in multiple complaints over several years. (ECF No. 26.)
Plaintiff alleges that gang members have vowed to kill him and that BOP refuses to protect him. These claims, on their face, suggest imminent danger of serious physical injury. At the pleading stage, the Court is required to accept this allegation as true.
The Court has some discretion to reject allegations that are fantastic or delusional.
The cases cited by Defendant do not compel a contrary result. Plaintiff raised allegations similar to those presented here
There, Plaintiff raised nearly identical allegations to those presented here. (ECF No. 24-2 at 17-24.) The court denied him leave to proceed in forma pauperis, noting that other courts reviewing Plaintiff's "suspiciously similar (and often fraudulent filings)" have held that he faces no threat of imminent danger. (ECF No. 24-2 at 15.) In so doing, the court relied on
Thus, only one case cited in
Finally, as Plaintiff points out, in at least one of the cases cited by Defendant and involving similar allegations, Plaintiff was permitted to proceed in forma pauperis on the ground that Plaintiff sufficiently alleged imminent danger.
Defendant has presented evidence indicating that Plaintiff has a history of abusive and sometimes fraudulent litigation. However, Plaintiff nonetheless has alleged a threat of imminent danger sufficient to proceed in forma pauperis in this action. Accordingly, Defendant's motion to revoke Plaintiff's in forma pauperis status should be denied.
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.
In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading.
The Privacy Act provides a private cause of action against federal agencies for violating the Act's provisions.
A Privacy Act claim seeking money damages based on improper disclosure has four elements: (1) the disclosed information is a "record" contained with a "system of records"; (2) the agency improperly disclosed the information; (3) the disclosure was willful or intentional; and (4) the disclosure adversely affected the plaintiff.
The Court screened Plaintiff's first amended complaint and found that it stated a cognizable Privacy Act claim against BOP based on allegations that a BOP agent shared Plaintiff's inmate records with another inmate for an improper purpose, without Plaintiff's consent, and that Plaintiff suffered harm as a result. (ECF No. 15.)
Defendant argues that Plaintiff's complaint fails to state a Privacy Act claim because (1) Plaintiff does not allege what "sensitive information" defendant Valero revealed to Inmate Eyre; (2) Plaintiff does not specifically allege that the "sensitive information" was learned from BOP records; (3) Plaintiff does not specify the records that were compromised; (4) the information allegedly disclosed by Defendant Valero already was publicly known; (5) Plaintiff does not allege the disclosure was willful or intentional; and (6) Plaintiff does not allege he was assaulted or threated based on the sensitive information from his inmate records, rather than because he was regarded as a "snitch."
Plaintiff argues that, to the extent the complaint contains insufficient detail, Plaintiff should be granted leave to amend. (ECF No. 25.) He submits a proposed second amended complaint (ECF No. 25 at 18-21), naming as an additional defendant an USP — Atwater employee named Estrada, and alleging that Valero and Estrada showed Inmate Eyre a copy of a cooperation agreement between Plaintiff and the AUSA and a letter outlining Plaintiff's cooperation with the government. These documents previously had not been revealed to any inmates.
Defendant argues that leave to amend would be futile and the complaint should be dismissed without leave to amend. (ECF No. 26.) Specifically, Defendant contends that the information that Plaintiff was a snitch was publicly available in multiple court documents and he therefore is unable to state a Privacy Act violation.
Plaintiff's complaint sufficiently alleges the elements of a Privacy Act claim. The allegation that the information disclosed was "sensitive information" from Plaintiff's inmate file is sufficient to allege the disclosure of a "record" from a "system of records." The disclosure, allegedly made in the context of encouraging Inmate Eyre to drop a lawsuit and apparently without Plaintiff's prior consent, was improper and reflects intent to disclose the information. Finally, threats to Plaintiff's life, allegedly based on the disclosure, are sufficient to allege adverse effect.
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Detailed factual allegations are not required.
Similarly without merit is the criticism that Plaintiff failed to specifically allege Defendant Valero's conduct was willful. The facts alleged in the complaint are sufficient to create an inference that the conduct was willful.
Likewise, Plaintiff's failure to specifically allege that he was assaulted or threated based on the sensitive information from his inmate records, rather than because he was regarded as a snitch, does not defeat his claim. The allegations are sufficient to indicate that Plaintiff may have been targeted on either or both of these bases. Plaintiff ultimately may be unable to prove he suffered adverse effects from the release of information from his inmate file, rather than from being labeled a snitch. However, that is not his burden at this stage of the proceedings. He must only allege facts that, when accepted as true, state a claim for relief. He has done so.
Defendant's argument that Plaintiff did not specifically allege that the information was learned from BOP records also lacks merit. Defendant appears to contend that Defendant Valero may have learned of the sensitive information independently of any BOP records.
Finally, Defendant argues that there was no Privacy Act violation because it was publicly known, through numerous Court records, that Plaintiff was a snitch. As an initial matter, it appears from the face of the complaint that the information allegedly revealed by Defendant Valero went beyond the contention that Plaintiff was a snitch. Furthermore, Defendant cites no authority, certainly none from this Circuit, to support its argument that information that is publicly known cannot be the subject of a Privacy Act violation. Defendant cites
Plaintiff's first amended complaint states a cognizable Privacy Act claim. Accordingly, Defendant's motion to dismiss should be denied. Based on this conclusion, the Court will not address Plaintiff's request to amend his complaint. If Plaintiff wishes to amend, he may bring a motion seeking same.
Plaintiff filed a motion to declare 28 U.S.C. § 1915(g) unconstitutional to the extent it hinders his ability to bring this action. (ECF No. 27.) However, the United States Court of Appeals for the Ninth Circuit has concluded that 28 U.S.C. § 1915(g) is not unconstitutional.
Plaintiff has filed two motions to stay collection of filing fees in this action.
Defendant contends that Plaintiff's arguments were rejected by the D.C. Circuit, and should be rejected here on the same ground. (ECF No. 33.)
Prisoners granted pauper status must make an initial partial payment at the time of filing, followed by monthly installments until the filing fees are paid in full. 28 U.S.C. § 1915(b). The initial filing fee is charged as follows:
28 U.S.C. § 1915(b)(1).
After the initial partial payment, the prisoner is required to make monthly payments as follows:
28 U.S.C § 1915(b)(2).
There is a split of authority as to the manner in which prisoners are required to pay filing fees under § 1915(b)(2). The Second and Fourth Circuits have held that § 1915(b)(2) requires that filing fees be collected sequentially, meaning that an indigent prisoner may be assessed no more than 20 percent of his monthly income, regardless of the number of suits filed.
The Fifth, Seventh, Eighth, Tenth, and District of Columbia Circuits have held that § 1915(b)(2) requires an indigent prisoner to simultaneously pay 20 percent of his monthly income toward each outstanding filing fee, even if this results in 100 percent of a prisoner's monthly income being collected.
The Second Circuit has found that the "text and structure of § 1915 fail to provide a definitive answer" as to whether PLRA filing fees should be collected sequentially or simultaneously.
The Fourth Circuit concluded that the PLRA is silent as to the manner in which filing fees should be collected.
The Seventh Circuit noted that § 1915 "does not tell us whether the 20 percent-of-income payment is per case or per prisoner."
The Fifth Circuit reached the same result, although based on a more detailed review of the statutory language.
The Tenth Circuit likewise has concluded that, when read as a whole, the plain language of § 1915 requires the simultaneous collection of multiple filing fees.
The D.C. Circuit also has concluded that, "[t]aken as a whole, the language and operation of § 1915 indicate that its provisions apply
It is a "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."
First, the plain language of 28 U.S.C. § 1915(b)(1) is read by this Court as calling for assessment of the initial partial filing fee
Subsection (b)(2) immediately follows this provision and states: "[a]fter payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income." 28 U.S.C. § 1915(b)(2) (emphasis added). Because the initial filing fee required by subsection (b)(1) is here interpreted to apply on a per-case basis, it follows that subsection (b)(2)'s installment provision likewise applies on a per-case basis.
Other provisions of § 1915 can be read to support this interpretation. For example § 1915(a)(2) requires a prisoner to submit a certified copy of his or her trust fund account statement for the 6-month period immediate preceding the filing of the complaint or notice of appeal. Because the statement must reflect the 6-month period preceding filing, the requirement necessarily applies each time the prisoner files a complaint or notice of appeal. Additionally, Subsection (e)(2) permits the court to dismiss a case at any time if it is frivolous, malicious, or fails to state a claim. And, subsection (f)(1) allows the court to render judgment for costs "at the conclusion of the suit or action." Given that these provisions impose requirements or obligations for each civil action or appeal a prisoner files, it would be incongruous to conclude that subsection (b)(2) — and only subsection (b)(2) — imposes a global cap on monthly installment payments for
Additionally, the simultaneous approach comports with the PLRA's primary purpose. The PLRA was enacted to "curtail the extraordinary costs of frivolous prisoner suits and minimize such costs to taxpayers."
Finally, simultaneous collection of multiple filing fees does not raise constitutional concerns. "Because prisoners are in the custody of the state and accordingly have the `essentials of life' provided by the government," the simultaneous collection of filing fees does not require an indigent prisoner to "make the choice between his lawsuit and the necessities of life," even if 100% of the prisoner's monthly income is collected in filing fees.
Based on the foregoing, the Court concludes that 28 U.S.C. § 1915(b)(2) requires that multiple filing fees be collected simultaneously. Accordingly, Plaintiff's motion to stay the collection of filing fees for this action until those for other actions are satisfied should be denied.
Plaintiff asks that filing fees for this action be apportioned among co-plaintiffs and that Plaintiff's filing fee obligation be reduced. (ECF No. 31.)
Plaintiff has no co-plaintiffs in this action. Mikeal Stine and Jeremy Brown initially were plaintiffs in the action but their claims were severed. (ECF No. 3.) Accordingly, there are no co-plaintiffs to whom fees may be apportioned, and Plaintiff's motion should be denied.
Based on the foregoing, the Court finds that the court records submitted by Defendant are the proper subject of judicial notice. Accordingly, it is HEREBY RECOMMENDED that Defendant's request for judicial notice (ECF No. 24) be GRANTED.
The Court further finds that Plaintiff's complaint plausibly alleged that Plaintiff was in imminent danger of serious physical injury at the time of filing. Accordingly, it is HEREBY RECOMMEDED that Defendant's motion to revoke Plaintiff's in forma pauperis status (ECF No. 24) be DENIED. Because the Court recommends that Defendant's motion to revoke Plaintiff's in forma pauperis status be denied, it is FURTHER RECOMMENDED that Plaintiff's motions to declare 28 U.S.C. § 1915(g) unconstitutional (ECF Nos. 27 & 31) be DENIED as moot.
The Court also finds that Plaintiff's complaint states a cognizable Privacy Act claim against Defendant BOP. Accordingly, it is HEREBY RECOMMENDED that Defendant's motion to dismiss (ECF No. 24) be DENIED.
The Court further finds that 28 U.S.C. § 1915(b)(2) requires that multiple filing fees be collected simultaneously. Accordingly, it is HEREBY RECOMMENDED that Plaintiff's motions to stay collection of filing fees (ECF Nos. 14 & 31) be DENIED.
Finally, Plaintiff has no co-plaintiffs in this action, and it is HEREBY RECOMMENDED that his motion to apportion filing fees among co-plaintiffs (ECF No. 31) be DENIED.
The findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with the findings and recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." A party may respond to another party's objections by filing a response within fourteen (14) days after being served with a copy of that party's objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.
