Coleman v. Campbell et al (INMATE1)

Filing 3

[VACATING THE PORTION OF THE ORDER REQUIRING PAYMENT OF $5.33 AS AN INITIAL PARTIAL FILING FEE] ORDER granting 2 Application to Proceed Without Prepayment of Fees and Affidavit; further ordered that on or before 9/16/05 the plaintiff shall fo rward to the clerk of court the sum of $5.33 as an initial partial filing fee as further set out in order; directing the Clerk to furnish a copy of this order to the account clerk at the Station Correctional Facility.. Signed by Judge Susan Russ Walker on 9/7/05. (sl, ) Modified on 9/15/2005(sl, ).

Coleman v. Campbell et al (INMATE1)

Doc. 3

Case 2:05-cv-00844-MHT-SRW

Document 3

Filed 09/07/2005

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION PAT RICK COLEMAN, #155030, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:05-CV-844-T WO

DONAL CAMPBELL, et al., Defendants.

O RDER AND OPINION ON MOTION NO TIC E TO PRIS O NERS : Pursuant to the 1996 revisions to 28 U.S .C. § 1915, the re qui si te procedures for filing civil actions in forma pauperis have substantially changed. Addi ti onal l y, in accordance with the provisions of the Consolidated Appropriations Act of 2005, the filing fee for civil actions has increase d to $250. contai ns an explanation of these changes. T he plaintiff, a state inmate, filed an affidavit in support of a request for leave to p roceed in forma pauperis before this court. See Court Doc. No. 2. In accordance with t he 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 t h e requisite filing fee. H o w ever, where an inmate lacks the funds necessary to pay the entire filing fee upon init iat ion of the civil action or ap p e a l and has money available to him, the court shall assess The attached notice

Dockets.Justia.com

Case 2:05-cv-00844-MHT-SRW

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Filed 09/07/2005

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and collect an initial partial filing fee. An inmate account clerk filed a certificate which indicat es the balance in plaintiff's p rison account at the time the instant complaint was filed and provides the court with informat ion necessary to determine the average monthly balance of plaintiff's prison a c c ount and the average monthly deposits to such account for the six month period p receding the filing of this complaint. A review of this informat i o n reveals that the plaintiff lacks the funds necessary to p ay the $250.00 filing fee. The documents further establish t hat for the six month period immediately preceding the filing of the instant complaint the average monthly deposits to plaint i ff's prison account were $26.67. Such amount was

great er than the average monthly balance of plaintiff's account. Thus, in accordance with t he provisions of 28 U.S.C. § 1915(b)(1)(A), the plaintiff is required to pay an initial partial filing fee of $5.33. Accordingly, it is ORDERED that on or before Sep t e mb e r 16, 2005 the plaintiff shall forward to the Clerk of this Court the sum of $5.33 as an init i a l p art ial filing fee. The plaintiff is hereby advi se d that it is his responsibi l i ty to submit the appropriate paperwork to the prison account clerk for transmission of his funds to this court for payment of the initial partial fi l i ng fee. If the funds have been dispersed from the plaintiff's prison account and are not now available to him, the plaintiff must make arrangements for payment of the requisite

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filing fee.

In accordance with the provisions of 28 U.S.C. § 1915(b)(2), it is hereby ORDERED that: 1. The plaintiff shall make monthly payments of 20 percent of each preceding

mont h's income and/or funds credited to his account as p a y ment s towards the $250.00 filing fee. 2. Those persons having custody of t h e p l aint iff 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 those persons having cust o d y 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 account clerk at the Staton Correctional Facility. It is further ORDERED that except to the extent that pay me n t is required under this order the p laint iff's motion for leave to proceed in forma pauperis is hereby GRANTED. T he plaintiff is cautioned that if he fails to pay the initial part i a l filing fee in

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comp liance with t h i s order the Magistrate Judge will recommend that his case be dismissed and such dismissal will not be reconsidered unless excep t i o n al circumstances exist. The pl ai nti ff is advised that if he is unable to procure the initial partial filing fee within the ti me allowed by this court he must inform the court of such inability and request an e xte nsi on of time within which to file the fee. The 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 re mai ns obligated to pay th e $250.00 filing fee. The filing fee will be collected from any funds which become available to the plaintiff and will be forwarded to this court by those p ersons having custody of the plaintiff pursuant to the directives contained in this order. More ove r, the plaintiff is hereby informed that notwi t h s t a ndi ng payment of the initial parti al filing fee this court will dismiss this cas e prior to service of process if the court de te rmi ne s that the action is frivolous, malicious, fails to state a claim upon which relief may be gran t e d, or s e e ks monetary relief from a defendant who is immune from such re l i e f in accordance with the provisions of 28 U.S .C. § 1915(e)(2)(B)(i), (ii) and (iii). Addit i o n a l l y , the 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. Thus, if at t he time the plaintiff files a notice of appeal he has t h e necessary funds to pay the $255.00 filing fee, he must submit such amount to the court wit h t h e not ice of appeal. If the

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Case 2:05-cv-00844-MHT-SRW Document 3 Filed 09/07/2005 Page 5 of 7 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 the filing of the appeal. However, the plaintiff is informed that regardless of this court's

det erminat ion on his in forma pauperis motion the entire appellat e filing fee will be collect ed from t hose persons having custody of him from funds available in his prison account in a manner similar to that outlined in this order. DONE, this 7th day of September, 2005.

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

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NOTICE

Filed 09/07/2005

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INFORM A TION 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 ci vi l 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 appl i cati on. 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 t he 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 p art ial filing fee out of your prison or jail account or any other funds you have indicated are available t o you. If you fail to submit the initial partial filing fee, your case will be dismissed and the ful l amount of the filing fee will be collected from those persons having custody of you. Aft er 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 t o 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 t o proceed with an action or appeal in forma pauperis you must complete the affidavit in support of your request to proceed in for ma pauperis and supply the court with a cert ified copy of your prisoner account statement for the 6-month period preceding the filing of the comp laint or notice of appeal and return it to the court with your cause of action. If you submit an incomp let e form or do not submit a prison or jail account statement with the form, your request to p roceed in forma pauperis will be denied. Re gardl e ss 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 whi ch relief can be granted; or (4) you sue a defendant for money damages and that de fe ndant is immune from liability for money damages. If on three or more occasions you have filed actions or appeals while a prisoner which 6

Case 2:05-cv-00844-MHT-SRW Document 3 Filed 09/07/2005 Page 7 of 7 we re dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, then you will be prohibited from bringing any other actions in forma pauperis unl e ss 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 fi l i ng fee before proceeding in your civil action.

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