Moyer

MEMORANDUM **

Appellant Lawrence R. Moyer (“Moyer” or “Appellant”) appeals the district court’s dismissal of his claim that imposition of a fee on top of garnishment of prison wages — where the fee is a 10% surcharge on the garnished amount — is a violation of the Ex Post Facto Clause. 1 Because we agree that Moyer has pleaded a colorable ex post facto claim, we reverse the District Court’s dismissal of Moyer’s complaint and remand for further proceedings.

I. Background

The core of the matter before us is a 1994 amendment to a California law that imposed an additional fee on prisoners whose prison wages and trust account deposits are garnished to pay off restitution fines. The fee existed within California Penal Code section 2085.5 prior to the 1994 amendment, but was deducted from the payment after the balance of the prisoner’s outstanding fine was credited:

Cal. Stats.1992, c. 1091, § 1 (emphasis added).

Since passage of the 1994 amendment, the fee is deducted before the balance of his outstanding fine is credited. As amended in 1994, California Penal Code section 2085.5(c) reads as follows:

Cal. Stats.1994, c. 634, § 1 (emphasis added).

Because the 1994 amendment shifted…