JONES v. WARDEN J.E. THOMAS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BYRON JONES, :

:

Plaintiff :

: CIVIL NO. 3:15-CV-1388

v. :

: (Judge Caputo)

WARDEN J.E. THOMAS, et al., :

:

Defendants :

M E M O R A N D U M

Presently before the Court is Defendants’ motion to dismiss Mr. Jones’ Amended

Complaint due to his failure to pay the filing fee in this case or receive permission from

the Court to proceed in forma pauperis. (ECF No. 57.) For the following reasons, the

Court will grant Defendants’ motion and direct Mr. Jones to pay the $400 filing fee or file

the appropriate documents seeking in forma pauperis status.

I. Procedural Background

In December 2014, while housed at the prison camp on the grounds of FCI-Loretto,

Mr. Jones filed a Bivens action1 in the United States District Court for the Western District

of Pennsylvania. (ECF No. 1-3.) In his Complaint Mr. Jones alleged that seven

individuals employed at USP-Lewisburg conspired, harassed, intimidated, and retaliated

1 A “Bivens action” is a commonly used phrase for describing a judicially created remedy

allowing individuals to seek damages for unconstitutional conduct by federal officials. This

constitutional tort theory was set out in Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

against him after he filed administrative remedies. He also claimed two FCI-Loretto

employees improperly removed him from his job and denied him an emergency furlough

after placing him in “FRP refuse status.” (Id.) Mr. Jones filed an application to proceed

in forma pauperis as well as an Authorization allow prison officials to withdraw funds from

his prison account to pay the filing fee. (ECF Nos. 1-1, 3, and 5.) On February 2, 2015,

the Court granted Mr. Jones’ motion to proceed in forma pauperis and proceeded to

screen the Complaint. (ECF No. 6.)

On June 4, 2015, by Report and Recommendation, Chief Magistrate Judge

Maureen P. Kelly recommended severing and transferring the claims against the USP-

Lewisburg to this Court. (ECF No. 15.) On July 8, 2015, District Judge Kim R. Gibson

adopted the unopposed Report and Recommendation and transferred all claims against

the USP-Lewisburg defendants to this Court. (ECF No. 17.)

On November 9, 2015, the Honorable Judge Conaboy directed service of the

Complaint on the USP-Lewisburg defendants noting that “[a]n in forma pauperis

application filed by Plaintiff was previously granted by the Western District.” (ECF No.

23.) Defendants then moved to dismiss the Complaint based on Mr. Jones’ failure to

obtain leave to proceed in forma pauperis from the Court or pay the filing fee in this matter.

(ECF No. 31.) Defendants also sought a stay of proceedings pending the disposition of

their motion to dismiss. (ECF No. 32.)

In April 2016 Mr. Jones requested legal advice from the Clerk of Court as to

whether he needed to pay a second filing fee based on the Western District’s transfer of

claims against the USP-Lewisburg defendants to this Court. (ECF No. 35.) On December

9, 2016, the Clerk of Court’s Office sent Mr. Jones an application to proceed in forma

pauperis and Authorization form. (ECF No. 41.) In late 2018, this matter was reassigned

to the undersigned and Magistrate Martin C. Carlson. (ECF No. 47.)

In January 2019, Magistrate Judge Carlson dismissed Defendants’ motion to

dismiss without prejudice but stayed the proceedings after Mr. Jones filed an Amended

Complaint. (ECF Nos. 39 and 48.) Mr. Jones then clarified to the Court that his recent

filing was a supplement to his original complaint. (ECF No. 49.) On February 4, 2019,

the Court lifted the stay and directed Mr. Jones to file a single all-inclusive amended

complaint. (ECF No. 50.) Mr. Jones filed an Amended Complaint on February 28, 2019,

naming the original Defendants and several new Defendants. (ECF No. 51.) Following

service of the new Defendants, the Defendants filed a motion to dismiss the Amended

Complaint again raising Mr. Jones’ failure to pay the filing fee in this matter or receive

permission from the Court to proceed in forma pauperis. (ECF No. 57.) Defendants also

refiled their motion to stay the proceedings pending their motion to dismiss. (ECF No.

59.) The Court granted Defendants’ motion to stay on June 11, 2019. (ECF No. 61.)

To date, Mr. Jones has not filed a brief in opposition to Defendants’ motion to

dismiss. He has not paid the filing fee or sought leave to proceed in forma pauperis in

this matter. Also, the Court notes that the Bureau of Prisons released Mr. Jones from

custody on October 11, 2019. See https://www.bop.gov/inmateloc/ (Find by Number,

search 09702-058; last visited December 6, 2019). Mr. Jones’ last known address was

in Brooklyn, New York. (ECF No. 56.)

II. Discussion

Pursuant to 28 U.S.C. § 1914, “[t]he clerk of each district court shall require the

parties institution any civil action, suit or proceeding in court, whether by original process,

removal or otherwise, to pay a filing fee of $350, except that on application for a writ of

habeas corpus the filing fee shall be $5.” 28 U.S.C. § 1914(a). A complaint is “lodged”

but not “filed” with the Court until the plaintiff either pays the filing fee or has received

permission to proceed in forma pauperis. Brown v. Sage, 941 F.3d 655, 662 (3d Cir.

2019).

The Prison Litigation Reform Act (PLRA) requires all prisoners who bring a civil

action to pay the full filing fee.2 See 28 U.S.C. § 1915(b)(1). Thus, to proceed with a civil

action, a prisoner-plaintiff must pay the $400.00 filing fee or request leave to proceed in

forma pauperis and submit the affidavit and trust account statement required by 28 U.S.C.

§ 1915(a). An indigent prisoner granted leave to proceed in forma pauperis still must pay

the filing fee, but in installments. The amount of the initial payment depends on the

average deposits to and balance in the prisoner’s account at the time of filing the action.

The PLRA provides:

The court shall assess and, when funds exist, collect, as a

partial payment of any court fees required by law, an initial

partial filing fee of 20 percent of the greater of—

(A) the average monthly deposits to the prisoner’s account;

or

2 As of May 1, 2013, plaintiffs who submit the $350.00 statutory filing fee will also be

assessed a $50.00 administrative fee. The $50.00 filing fee does not apply to persons granted

leave to proceed in forma pauperis under 28 U.S.C. § 1915. Therefore, if in form pauperis status

is granted, the Plaintiff will be responsible to pay $350.00. However, if in forma pauperis status

is denied, the Plaintiff will be required to pay $400.00.

(B) the average monthly balance in the prisoner’s account for

the 6-month period immediately preceding the filing of the

complaint or notice of appeal.

28 U.S.C. § 1915(b)(1). The remainder of the filing fee is to be pain in monthly

installments. The statute provides:

After 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 credited to the prisoner’s account.

The agency having custody of the prisoner shall forward

payments from the prisoner’s account to the clerk of the court

each time the amount in the account exceeds $10 until the

filing fees are paid.

28 U.S.C. § 1916(b)(2).

Here, the Western District of Pennsylvania split Mr. Jones’ single Complaint

against USP-Lewisburg defendants and FCI-Loretto defendants into two separate

lawsuits. It severed the claims against the USP-Lewisburg officials and transferred that

portion of his original Complaint to this Court. As noted above, pursuant to 28 U.S.C. §

1914(a), Mr. Jones is required to pay a separate filing fee if he seeks to pursue this action.

See In re Diet Drugs, 325 F. Supp.2d 540, 542 (E.D. Pa. 2004) (“We view the payment

of a [ ] filing fee for every severed and amended complaint not only as just but as

mandated by § 1914(a). We do not read § 1914(a) to bestow a free ride on misjoined or

misjoining plaintiffs.”). As Defendants correctly note, the Court has not granted Mr. Jones

in forma pauperis in this matter and he has he paid the $400 filing fee.3 Accordingly, his

Amended Complaint, though before the Court, it is not yet “filed” with the Court. Brown,

supra.

3 The Court notes that this issue was overlook by the Court, not Plaintiff. Nonetheless, it

must be resolved prior to proceeding further in this matter.

Mr. Jones must pay a separate filing fee in this matter. He may pay the $400 filing

fee or seek in forma pauperis standing. As Mr. Jones filed this action while incarcerated,

the PLRA governs his in forma pauperis status application even though he is no longer in

custody. See Drayer v. Att’y. Gen. of Del., 81 F. App’x 429 (3d Cir. 2003) (per curiam)

(non-precedential). Therefore, he will need to complete an Application to Proceed In

Forma Pauperis and Authorization Form. Upon the Court’s receipt of these completed

forms, the Court will direct the Defendants to provide the Court with a certified copy of Mr.

Jones’ trust fund from May 27, 2014 through November 27, 2014. The Court will then

calculate the Mr. Jones’ initial payment for the filing of this action. Defendants will not be

required to file an answer or response to the Amended Complaint until Mr. Jones either

pays the filing fee or initial PLRA payment. If Mr. Jones does not wish to pay either of

these fees, he simply needs to advise the Court and his case will be dismissed without

prejudice. If Mr. Jones fails to pay the filing fee or initial PLRA payment, or fails to respond

to the Court’s Order, his action will be dismissed without prejudice.

An appropriate order follows.

DATE: December 6, 2019 /s/ A. Richard Caput o

A. RICHARD CAPUTO

United States District Judge