Davis v. Specks et al (INMATE 2)

Filing 3

ORDER directing payment of initial partial filing fee of $8.66 be paid on or before 8/15/2005; 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 @ Bullock County Corr Facility, as directed. Signed by Judge Charles S. Coody on 7/26/05. Furnished to cashier. (djy, )

Davis v. Specks et al (INMATE 2)

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Case 2:05-cv-00672-MEF-CSC

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Filed 07/26/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ______________________________ ALBERT D. DAVIS, #219 725 Plaintiff, v. CEDRIC SPECKS, et al., Defendants. __________________________________ * * * CIVIL ACTION NO. 2:05-CV-672-F WO * *

ORDER ON MOTION Plaintiff is an inmate incarcerated at the Bullock County Correctional Facility located in Union Springs, Alabama. He filed an affidavit in support of a request for leave to proceed in forma pauperis, on July 21, 2005. In accordance with the provisions of 28 U.S.C. § 1915(b)(1), a prisoner who seeks to proceed in forma pauperis in a civil action or on appeal is required to pay the full amount of the requisite filing fee. However, where an inmate lacks the funds necessary to pay the entire filing fee upon initiation of the civil action or appeal and has money available to him, the court shall assess and collect an initial partial filing fee.1 An inmate account clerk filed a certificate which indicates the balance in Plaintiff's prison account at the time the instant complaint was filed and provides the court with information necessary to determine the average monthly balance in his prison account and the average monthly deposits to such account for the six month period preceding the filing of this complaint. A review of this

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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information reveals that Plaintiff lacks the funds necessary to pay the $250.00 filing fee. The documents further establish that for the six month period immediately preceding the filing of the instant complaint the average monthly deposits to Plaintiff's prison account were $43.33. Such amount was greater than the average monthly balance in Plaintiff's account ($8.59). Thus, in accordance with the provisions of 28 U.S.C. § 1915(b)(1)(A), Plaintiff is required to pay an initial partial filing fee of $8.66 (20 percent of the average monthly deposits to Plaintiff's account). Accordingly, it is ORDERED that: 1. On or before August 15, 2005 Plaintiff shall forward to the Clerk of this Court the sum of $8.66 as an initial partial filing fee. Plaintiff is hereby advised that it is his responsibility to submit the appropriate paperwork to the prison account clerk for transmission of his funds to this court for payment of the initial partial filing fee. If the funds are not now available in Plaintiff's prison account, he must make arrangements for payment of the requisite filing fee; 2. Plaintiff shall make monthly payments of 20 percent of each preceding month's income and/or funds credited to his account as payments towards the $250.00 filing fee in accordance with 28 U.S.C. § 1915(b)(2); 3. Those persons having custody of Plaintiff shall forward the above described payments from his inmate account to the Clerk of this Court each time the amount in the Plaintiff's account exceeds $10.00 until the $250.00 filing fee is paid in full; 4. The Clerk of Court SEND a copy of this Order to the account clerk at the Bullock County Correctional Facility; 5. Except to the extent that payment is required under this order, Plaintiff's motion for leave

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to proceed in forma pauperis (Doc. No. 2), IS GRANTED pursuant to 28 U.S.C. § 1915(a)(1); and 6. Plaintiff is cautioned that his failure to pay the initial partial filing fee in compliance with this order may result in a recommendation the Magistrate Judge will recommend that his case be dismissed and such dismissal will not be reconsidered unless exceptional circumstances exist.2 Done this 26th day of July, 2005.

/s/Charles S. Coody CHARLES S. COODY CHIEF UNITED STATES MAGISTRATE JUDGE

Plaintiff is advised that if he is unable to procure the initial partial filing fee within the time allowed by this court he must inform the court of such inability and request an extension of time within which to file the fee. Plaintiff is further advised that if this case is dismissed for failure to pay the initial partial filing fee or for any other reason he remains obligated to pay the $250.00 filing fee. The filing fee will be collected from any funds which become available to Plaintiff and will be forwarded to this court by those persons having custody of the plaintiff pursuant to the directives contained in this order. Moreover, Plaintiff is hereby informed that notwithstanding payment of the initial partial filing fee this court will dismiss this case prior to service of process if the court determines that the action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii).

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NOTICE INFORMATION 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 civil action. If you later file an appeal, the filing fee for the appeal is $255.00 and you will likewise be responsible for payment of such fee. Thus, if at the time you file your action you have the funds available to pay the requisite filing fee, you must send such amount to the court with your complaint or notice of appeal and, if appropriate, your IFP application. If you do not have enough money to pay the full filing fee when your action is filed, 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 to 20 percent of the average monthly deposits to your prison or jail account for the six months immediately preceding the filing of the lawsuit, or 20 percent of the average monthly balance in your prison or jail account for that same six month period, whichever is greater. The court will order that you make the initial partial filing fee out of your prison or jail account or any other funds you have indicated are available to you. If you fail to submit the initial partial filing fee, your case will be dismissed and the full amount of the filing fee will be collected from those persons having custody of you. After the initial partial 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 the balance on the filing fee. Pursuant to an order of the court, the agency that has custody of you will collect that money and send payments to the court any time the amount in the account exceeds $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 against you, or you fail to prevail at trial. In order to proceed with an action or appeal in forma pauperis you must complete the affidavit 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 filing 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 form, your request to proceed in forma pauperis will be denied. Regardless of whether some or all of the filing fee has been paid, the court is required to screen your complaint and to dismiss the complaint if (1) your allegation 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 damages and that defendant is immune from liability for money damages. If on three or more occasions 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 be

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granted, then you will be prohibited from bringing any other actions in forma pauperis unless you are in imminent danger of serious physical injury. In such cases, your request to proceed in forma pauperis will be denied and you will be required to pay the appropriate filing fee before proceeding in your civil action.