Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40480
ERIC C. CHACHERE,
Plaintiff-Appellant,
versus
FREDERICO BARERRA, Lieutenant;
CESAR GUERRA; MICHAEL BEHRENS;
GOTTA HARMON; ERNALDO TREVINO,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
February 18, 1998
Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:
Eric G. Chachere, a Texas state prisoner, has filed a motion to proceed on
appeal notwithstanding his noncompliance with the district court's order requiring
him to execute the documents necessary to authorize withdrawals from his inmate
account. Chachere contends that the authorization form of the Texas Department
of Criminal Justice (TDCJ) does not comply with the Prison Litigation Reform Act
(PLRA).1 For the reasons assigned, the motion is denied.
1 28 U.S.C. § 1915.

Background
Chachere filed a civil rights complaint against several correction officials,
alleging that they had subjected him to deliberate indifference and excessive force.
Following a trial on the merits, the jury returned a verdict in favor of the
defendants. Chachere timely filed a notice of appeal and an application to proceed
in forma pauperis which the magistrate judge granted. Chachere was not required
to pay an initial partial filing fee, but was ordered to pay the $105 filing fee in
installments.
In accordance with the PLRA, the magistrate judge ordered the TDCJ Local
Funds Division to deduct 20% of each deposit made to Chachere's inmate trust
account and to forward same to the court. Consistent with the PLRA, the order
provided that the account balance must exceed $10 before a deduction may be
made. Chachere was ordered to execute the instruments necessary to authorize the
TDCJ to withdraw the funds from his account.
Chachere refused to sign the authorization form tendered, contending that it
did not comply with the PLRA because it did not explicitly prohibit withdrawals
from his account when the balance was below $10. The magistrate judge issued a
notice of noncompliance; Chachere subsequently filed a motion to proceed on
appeal.
Analysis
Section 1915(b)(2) of the PLRA provides:
After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
2

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 court each time the amount in the account
exceeds $10 until the filing fees are paid.
The authorization form at issue gives the TDCJ consent to withdraw from
Chachere's trust fund account 20% of each deposit made to the account until the
full amount of the filing fee is satisfied. The form does not include the $10
threshold. The specific language of the PLRA, however, does not mandate the use
of an authorization form or, if one is used, that the form specifically include both
the 20% and $10 limitations. Absent evidence to the contrary, we assume that
TDCJ personnel will comply with the requirements of the PLRA. The PLRA has
not automatically been violated by the TDCJ's failure to track the language of
section 1915(b)(2) in its consent form. We perceive no basis for concluding that
the TDCJ would withdraw funds from Chachere's account in violation of the $10
minimum prescribed by the PLRA and the court's order. Although it would be
preferable if the form explicitly referred to the $10 threshold, as well as the 20%
deduction level, and we urge the TDCJ to consider revising same at the next
printing, we decline to rule that the current consent form, as utilized herein, violates
the PLRA.
Chachere's motion to proceed on appeal is DENIED. We return this matter
to the district court to permit Chachere an opportunity to execute the required
authorization form. If he fails to do so timely his appeal will be dismissed.
3