Polcastro v. Ward et al (INMATE2)
ORDER directing Monthly Payments be made from Inmate's Prison Account until fee is paid in full; granting 2 Affidavit for Leave to Proceed in forma pauperis except to the extent payment is required under this order. Copies mailed to plaintiff and account clerk at the Geneva County Jail. Signed by Judge Vanzetta P. McPherson on 9/29/2005. Copy furnished to cashier. (dmn)
Polcastro v. Ward et al (INMATE2)
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I N THE UNITED STATES DISTRICT COURT F OR THE MIDDLE DISTRICT OF ALABAMA S O U T H ER N DIVISION ____________________________ J O H N P. POLCASTRO, SR. Plaintiff, v. SH ER IFF GREG WARD, et al., Defendants. _______________________________ * * * CIVIL ACTION NO. 1:05-CV-909-F (WO) * *
O R D E R ON MOTION U p o n consideration of Plaintiff's motion for leave to proceed in forma pauperis (Doc. N o . 2), it is ORDERED that the motion is GRANTED.1 Upon review of the financial information provided to the court, it is clear that Plaintiff l a c k s the necessary funds in his prison account to pay either the requisite filing fee or an i n i ti a l partial filing fee. However, under the provisions of 28 U.S.C. § 1915, Plaintiff is r e q u i re d to pay the $250.00 filing fee applicable to the filing of a civil action in this court. S p e c i f ic a l ly , 28 U.S.C. § 1915(b)(1) requires that this court "assess and, when funds exist, colle ct" the $250.00 filing fee from all monies available to Plaintiff. In light of the foregoing, and in accordance with the provisions of 28 U.S.C. § 191 5(b)(2 ), it is further ORDERED that:
Attached to this order is a notice explaining the requisite procedures for filing civil actions in forma pauperis under 28 U.S.C. § 1915.
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1 . Plaintiff shall make monthly payments of 20 percent of the monies credited to and/o r maintained in his prison account as payments towards the $250.00 filing fee; 2. Those persons having custody of Plaintiff shall forward the above described paym ents from Plaintiff's account to the clerk of this court each time the amount in Plaintiff's a c c o u n t exceeds $10.00 until the $250.00 filing fee is paid in full; and 3. To aid Plaintiff and those persons having custody of him in complying with the
requ ireme nts of this order, the Clerk of Court IS DIRECTED to furnish a copy of this order to Plaintiff and the inmate account clerk at the Geneva County Jail. 2 Done this 29th day of September 2005.
/ s / Vanzetta Penn McPherson V A N Z E T TA PENN MCPHERSON U N I T E D STATES MAGISTRATE JUDGE
P l a in t i ff is advised that if this case is dismissed for any reason he remains obligated to pay the $ 2 5 0 . 0 0 filing fee. The filing fee will be collected from any funds which becom e available to Plaintiff a n d will be forwarded to this court by those persons having custody of Plaintiff pursuant to the directives c o n t a i n e d in this order. A d d i t i o n a l l y , Plaintiff is advised that if he files a notice of appeal he will likewise be required to p a y the requisite appellate filing fee which is currently $255.00. Thu s , if at the time Plaintiff files a n o t i c e of ap p e a l he has the necessary fund s to pay the $255.00 filing fee, he must submit such am o u n t to t h e court with the notice of appeal. If the requisite funds are not available and Plaintiff seeks to proceed i n forma pauperis on his appeal, he must complete an affidavit in support of such request and supply the c o u r t with a certified copy of his prison account statement for the 6-month period preceding the filing of t h e appeal. How e v e r , Plaintiff is informed that regardless of this court's determination on his in forma p a u p e r i s motion the entire app e l l a t e filing fee will be collected from those persons having custody of him f r o m fund s available in his prison account in a manner similar to that outlined in this order.
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NOTICE I N FO R M A T IO N TO PRISONERS SEEKING LEAVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915 I N CIVIL ACTIONS BEFORE ANY FEDERAL COURT I n accordance with 1996 amendments to the in form a pauperis (IFP) statute g o v e r n in g civil actions in federal court, as a prisoner you will be obligated to pay the full filing fee of $250.00 for a civil action. If you later file an appeal, the filing fee for t h e appeal is $255.00 and you will likewise be responsible for paym e n t of such fee. T h u s , if at the time you file your action you have the funds available to pay the requisite f i li n g fee, you must send such amount to the court with your com plain t or notice of ap pea l and, if appropriate, your IFP application. If you do not have enough money to pay the full filing fee when your action is filed, y o u can file the action without prepayment of the filing fee. However, the court will assess a n d , when funds exist, collect an initial partial filing fee. The initial partial filing fee will be e q u a l to 20 percent of the average monthly deposits to your prison or jail account for the six m o n t h s immediately preceding the filing of the lawsuit, or 20 percent of the average monthly b a l a n c e in your prison or jail account for that same six month period, whichever is greater. T h e court will order that you make the initial partial filing fee out of your prison or jail a c c o u n t or any other funds you have indicated are available to you. If you fail to submit the i n i ti a l partial filing fee, your case will be dismissed and the full amount of the filing fee w i l l be collected from those persons having custody of you. A f t e r the initial partial filing fee has been paid, you will be responsible for paying the b a l a n c e of the filing fee. To fulfill your obligation for payment of the full filing fee, each mo nth you will owe 20 percent of 1your preceding month's income toward the balance on t h e filing fee. Pursuant to an order of the court, the agency that has custody of you will c o l l ec t that money and send payments to the court any time the amount in the account e x c e e d s $10.00. You are advised that the balance of the filing fee will be collected even if the action is subsequently dismissed for any reason, summary judgment is granted aga inst you, or you fail to prevail at trial. In order to proceed with an action or appeal in forma pauperis you must complete the affidav it in support of your request to proceed in forma pauperis and supply the court with a certified copy of your prisoner account statement for the 6-month period preceding the f i li n g of the complaint or notice of appeal and return it to the court with your cause of action. If you submit an incomplete form or do not submit a prison or jail account statement with the f o r m , your request to proceed in forma pauperis will be denied. R e g a r d l e s s of whether some or all of the filing fee has been paid, the court is r e q u i r e d to screen your complaint and to dismiss the complaint if (1) your allegation
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of poverty is untrue; (2) the action is frivolous or malicious; (3) your complaint does not state a claim on which relief can be granted; or (4) you sue a defendant for money d a m a g e s and that defendant is immune from liability for money damages. I f on three or more occasions you have filed actions or appeals while a prisoner w h i c h were dismissed as frivolous or malicious or for failure to state a claim on which r e l ie f can be granted, then you will be prohibited from bringing any other actions in f or m a pauperis unless you are in imminent danger of serious physical injury. In such c a s e s , your request to proceed in form a pauperis will be denied and you will be required t o pay the appropriate filing fee before proceeding in your civil action.
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