Brian David Cloutier

1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MAINE
In re:
Brian David Cloutier,
Debtor
Chapter 7
Case No. 26-10185
ORDER DENYING REQUESTED WAIVER AND DISMISSING CASE
Brian David Cloutier began this bankruptcy case by filing a voluntary petition. 	Usually,
before beginning a case like this one, a debtor must get a briefing about credit counseling. 	See
11 U.S.C. §§ 109(h), 521(b); Fed. R. Bankr. P. 1007(b)(3), (c)(3). 	Mr. Cloutier says that, due to
being in state prison, he was and is unable to get such a briefing. 	And he asks the Court to
waive the briefing requirement. 	As explained below, although the Court understands that Mr.
Cloutier appears to be unable to get a briefing, his circumstances do not qualify for a waiver.
Thus, the Court must deny his request and dismiss this case.
To qualify for the type of waiver that Mr. Cloutier seeks, he would need to show that
either “incapacity, disability, or active military duty in a military combat zone” makes him
unable to get the briefing. 	Mr. Cloutier 	argues that “disability” applies here.1 	To qualify for a
disability-based waiver, Mr. Cloutier would need to 	show that he “is so physically impaired as to
be unable, after reasonable effort, to participate in an in person, telephone, or Internet briefing,”
see 	11 U.S.C. § 109(h)(4).
On his petition and in a “Motion Requesting Permanent Waiver of Credit Counseling
Requirement” [Dkt. No. 4], Mr. Cloutier noted that he 	is in prison and will be there until 2036.
In the motion, he added that he is 63 years old. 	Because such circumstances alone would not
1 	He checked a box to that effect on his petition and reiterated that argument in a supplemental filing
discussed below. 	He does not (and has no apparent basis to) argue that incapacity or military duty could
apply here.
Case 26-10185 Doc 17 Filed 10/15/26 Entered 10/15/26 11:27:23 Desc Main
Document Page 1 of 3

2
necessarily make someone unable to get a briefing about credit counseling, the Court directed
Mr. Cloutier to supplement his motion [Dkt. No. 7], which he did [Dkt. No. 16].
In the supplement, Mr. Cloutier indicates that he asked case managers at his prison about
options for getting the briefing and that he learned about restrictions generally imposed on
prisoners that would prevent him from getting the briefing in person, by phone, and via the
internet.2 	Thus, he “asserts that the prison is the physical impairment preventing any briefing”
and should be recognized as a qualifying disability.
Other courts have considered a substantially similar argument. 	And, in doing so, the
predominant conclusion has been that “disability” 	requires limitations in the human body itself
and cannot be met solely by outside factors such as incarceration. 	E.g., In re Hubel, 395 B.R.
823, 825-26 (N.D.N.Y. 2008) (collecting cases and observing that, if incarceration had been
intended to count as a “disability,” Congress could 	have expressed that intent more clearly when
defining the term). 	This predominant view is persuasive because, among other reasons, it
readily comports with a typical understanding 	of “disability” and avoids expanding the term
beyond that typical understanding without a clear indication from Congress that anything broader
was intended.
The Court understands that Mr. Cloutier’s seeming inability to comply with the briefing
requirement is poised to thwart his immediate desire for a financial fresh start through
bankruptcy. 	But, with incarceration as his only impediment to compliance, he has not shown
2 	For example, he says that a “case manager informed [him] that inmates cannot use the supervised
telephone for the duration needed to complete telephone 	credit counseling” and “that inmates cannot use
the internet to view websites, use an email address, enter payment information, or enter personal data, as
needed to register for internet credit counseling.”
Case 26-10185 Doc 17 Filed 10/15/26 Entered 10/15/26 11:27:23 Desc Main
Document Page 2 of 3

3
that he qualifies for a disability-based waiver of the briefing requirement. 	Thus, his request for
such a waiver is denied. 	See 	11 U.S.C. § 109(h)(4).3
Further, because the briefing was required but not completed before Mr. Cloutier began
this case, he is not eligible to proceed in this case. 	See 	11 U.S.C. § 109(h)(1). 	Thus, the case
must be and is dismissed accordingly. 	See 	11 U.S.C. § 707(a).
Dated: October 15, 2026
Michael A. Fagone
United States Bankruptcy Judge
District of Maine
3 	Section 109(h)(4) says that a court will determine whether a debtor qualifies for a disability-based
waiver “after notice and hearing[.]” 	That phrase, however, is separately defined so as not to require a
hearing in all circumstances. 	See 	11 U.S.C. § 102(1). 	Here, the circumstances do not necessitate a
hearing. 	The Court notified Mr. Cloutier that his original motion lacked sufficient facts and that any
supplement would need to detail his “physical impairment” among other things. 	As indicated, Mr.
Cloutier then identified prison as his only physical impairment. 	Assuming all of Mr. Cloutier’s original
and supplemental factual allegations to be true, he 	cannot—as a matter of law (detailed above)—meet the
requirements for a disability-based waiver. 	A hearing on the matter would not change this outcome.
Case 26-10185 Doc 17 Filed 10/15/26 Entered 10/15/26 11:27:23 Desc Main
Document Page 3 of 3