Davis v. Clark et al (INMATE1)

Filing 3

ORDER AND OPINION 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 Covington County Jail. Signed by Judge Susan Russ Walker on 5/11/2005. (dmn)

Davis v. Clark et al (INMATE1)

Doc. 3

Case 2:05-cv-00429-MEF-SRW

Document 3

Filed 05/11/2005

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORT HERN DIVISION ROBERT MICHAEL DAVIS, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:05-CV-429-F WO

ANT HONY CLARK, et al., Defendants.

O RDER AND OPINION ON MOTION NO TICE TO PRIS O NERS : Pursuant to the 1996 revisions to 28 U.S .C. § 1915, the requisite procedures for filing civil acti o n s in forma pauperis have substantially change d. Additionally, in accordance with the provi s i ons of the Consolidated

Appropri ati ons Act of 2005, the filing fee for civil actions has increased to $250. The attache d notice contains an explanation of these changes. Up on consideration of the motion for leave to p r o ceed in forma pauperis filed by t he plaintiff on May 9, 2005 (Court Doc. No. 2), and for good cause, it is ORDERED that such motion be and is hereby GRANTED. In accordance with the provisions of 28 U.S.C. § 1915(b)(1), a p r isoner who seeks t o proceed in forma pauperis in a civil act i o n or on appeal is required to pay the full amount of the requisite filing fee. Upon review of the financial information provided to the

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Case 2:05-cv-00429-MEF-SRW

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court , it appears that the plaintiff lacks the requisite funds in his prison account for this court to require payment of either the entire filing fee or an initial partial filing fee. However, under the provisions of 28 U.S.C. § 1915(b)(1), t h i s court must "assess and, when funds exist, collect" the $250.00 filing fee from monies available to the p laint iff. In light of t he foregoing and in accordance with the provisions of 28 U.S.C. § 1915(b)(2), it is further ORDERED that: 1. The plaintiff shall make monthly payments of 20 percent of each preceding

mont h's income credited to his account as payments towards the $250.00 filing fee. 2. Those persons having custody of the plaintiff shall forward the above described p ay ment s from the plaintiff's account to the clerk of this court each time the amount in the p laint iff's account exceeds $10.00 until the $250.00 filing fee is paid in full. Id. To aid the plaintiff and t h o s e p e r s ons having custody of the plaintiff in complying wit h the requirements of this order, the clerk is DIRECTED to furnish a copy of this order t o the inmate account clerk at the Covington County Jail. T he plaintiff is advised that if this case is dismissed for any reason he remains obligat ed to pay the $250.00 filing fee. The filing fee will be collected from any funds which b ecome available to the plaintiff and will be forwarded to this court by those persons having custody of the plaintiff pursuant to the directives contained in this order. Addit ionally , the plaint i f f is advised that if he files a notice of appeal he will likewise

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be required to pay the requisite appellate filing fee which is currently $255.00. Thus, if at t he time the plaintiff files a notice of ap p e a l he has the necessary funds to pay the $255.00 f i l i n g fee, he must submit such amount to the court with the notice of appeal. If the requisit e funds are not available and the plaintiff seeks to proceed in forma pauperis on his appeal, he must complete an affidavit in support of such request and supply the court wit h a certified copy of his prison account statement for the 6-month period preceding t h e filing of the appeal. However, t h e p laint iff is informed that regardless of this court's

det erminat ion on his in forma pauperis motion the entire appellate filing fee will be collect ed from those persons having custody of him from funds available in his prison account in a manner similar to that outlined in this order. DONE, this 11th day of May, 2005.

/s/ Susan Russ Walker SUSAN RUSS WALKER UNIT ED STATES MAGISTRATE JUDGE

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Document 3 Filed 05/11/2005 Page 4 of 4 NOTICE INFORM AT ION TO PRISONERS SEEKING LEAVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915 IN CIVIL ACTIONS BEFORE ANY FEDERAL COURT

In accordance with 1996 amendments to the in forma pauperis (IFP) statute governing civil actions in federal court, as a prisoner you will be obligated to pay the full filing fee of $250. 00 for a ci v i l acti o n . If you later file an appeal, the filing fee for the appeal is $255.00 an d you will likewise be responsible for p a y m en t of such fee. Thus, if at the time you file you r action you have the funds available to pay the req u i s i te filing fee, you must send such amou n t to the court with your complaint or notice of appeal and, if appropriate, your IFP ap p lication . If you do not have enough money to pay the full filing fee when your action is fi l e d , you can file the action without prepayment of the filing fee. However, the court will assess and, when funds exist, collect an initial partial filing fee. The initial partial filing fee will be equal t o 20 percent of the average monthly depos i t s t o your prison or jail account for the six months immediately preceding the filing of the lawsuit, or 20 percent of t h e average monthly balance in your prison or jail account for that same six month period, whichever i s greater. The court will order that you make the initial partial filing fee out of your prison or jail account or any ot h er funds you have indicated are available to you. If you fail t o s u b mit the initial partial filing fee, your case will be dismissed and the full amou n t of th e f ilin g fee will be collected from those persons having custody of you. After the ini t i a l part i a l filing fee has been paid, you will be responsible for paying the balance of the filing fee. To fulfill your obligation for payment of the full filing fee, each month you will owe 20 percent of your preceding month's income toward t h e bal a n c e on the filing fee. Pursuant to an order of the court, the agency that has custody of you wi l l col l e c t that money and send payments to the court any time the amount in the account exceeds $10.00. You are advised that the bal a n ce of the filing f ee will be collected even if the acti o n i s s u b seq u en tly dismissed for any reason, summary ju d gmen t is granted against you, or you fail to prevail at trial. In order to proceed with an action or appeal in forma pauper is you must complete the affidavit in support of your request to proceed i n f o r m a pauperis and supply the court with a certified copy of your prisoner account statement for the 6-m o nth period preceding the filing of the complaint or notice of appeal and return it to the court with your cause of act i o n . If you submit an incomplete form or do not submit a prison or jail account statement with the form, your reques t t o proceed in forma pauperis will be denied. Regard l e s s of wh e th er some or all of the filing fee has been paid, the court is required to screen you r complaint and to dismiss the complaint if (1) your allegation of poverty is u n tru e; (2) the action is frivolous or malicious; (3) your complaint does not state a cl a i m on wh ich rel i e f can b e granted; or (4) you sue a defendant for money damages and that d ef en d an t is immune from liability for money damages. If on three or more occas i o n s you have filed actions or appeals while a prisoner which were dismissed as frivolous or malicious or for failure to state a claim on which relief can b e granted, then you will be prohibited from bringing any other actions in forma pauperis u n less you are in immin e n t danger of serious physical injury. In such cases, your request to proceed in forma pauperis wi l l be denied and you will be required to pay the appropriate f ilin g fee before proceeding in your civil action.