Cato v. Yancey et al (INMATE 2)

Filing 3

ORDER directing payment of initial partial filing fee of $47.74 within 21 days of the filing date of this 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, as further set out. Copies mailed to plaintiff and account clerk @ FPC Estill. Signed by Judge Susan Russ Walker on 9/15/05. Furnished to cashier. (djy, )

Cato v. Yancey et al (INMATE 2)

Doc. 3

Case 2:05-cv-00872-MEF-SRW

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IN THE UNITED STATES DISTRICT COURT FOR THE M IDDLE DISTRICT OF ALABAM A NORT HERN DIVISION ______________________________ LAM AR CATO, #49616-019 Plaint iff, v. RUT H YANCEY, et al., * * * CIVIL ACTION NO. 2:05-CV-872-F WO *

Defendant s. * __________________________________ O RDER ON MOTION Plaint iff is an inmate incarcerated at the Federal Prison Camp in Est i l l , South Carolina. He filed an affidavit in support of a request for leave to proceed in for m a pauperis, on September 12, 2005. In accordance w i t h the provisions of 28 U.S.C. §

1915(b)(1), a p r i s o n e r w h o 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. How e ver, where an inmate

lacks the funds necessary to pay the entire filing fee upon initiation of the civil act i o n or ap p eal and has money available t o him, the court shall assess and collect an initial partial filing fee.1

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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An inmate account clerk filed a certificate which indicates 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 mont hly balance in his prison account and t he average monthly deposits to such account for the six month period preceding t h e filing of this complaint. A review of t h i s information reveals that Plaintiff lacks the funds The documents further establish that for the six

necessary to pay the $250.00 filing fee.

mo n t h period immediately preceding the filing of the instant complaint the average monthly dep osit s to Plaintiff's prison account w e r e $165.00. Such amount was less than the average mont hly balance in Plaintiff's account ($238.70). Thus, in accordance with the provisions

of 28 U.S.C. § 1915(b)(1)(A), Plaintiff is required to pay an initial part i a l filing fee of $47.74 (20 percent of the average monthly balance in Plaintiff's account). Accordingly, it is ORDERED that: 1. Within twenty-one (21) days of t h e filing date of this order Plaintiff shall forward t o the Clerk of this Court the sum of $47.74 as an initial partial filing fee. Plaintiff is hereby advised that it is his res po n s i bi l i ty to submit the appropriate paperwork to the prison account clerk for transmis s i o n of his funds to this court for payment of the initial partial filing fee. If the funds are not now available in Plaintiff's pris o n account, he must make

arrangement s for payment of the requisite filing fee;

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2.

P l aint iff shall make monthly payments of 20 percent of each preceding mont h ' 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

p ay ment s from his inmate account t o t h e Clerk of this Court each time the amount in the Plaint iff'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 FPC Estill; 5. Except to the extent that payment is required under this order, Plaintiff's motion f o r leave t o p roceed 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

comp liance with this order may result in a recommendation the M agist rat e Judge will recommend that his case be dismissed and such dismissal will not be reconsidered unless excep t ional circumstances exist.2

Plain tif f is advised that if he is unable to procure the initial partial filing fee with in the time allowed by this court he must inform the court of such inability and req u est 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, Plain tif f is hereby informed that notwithstanding payment of the initial partial filing fee th is court will dismiss this case prior to service of process if the court determines that the
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Done, this 15th day of September, 2005.

/s/ Susan Russ Walker SUSAN RUSS WALKER UNIT ED STATES M AGIST RAT E JUDGE

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). P laintiff is also advised that if he files a notice of appeal he will likewise be required to pay the requisite appellate filing fee which is currently $255.00. Thus, if at the time Plaintiff files a notice of appeal he has the necessary funds to pay the $255.00 filing fee, he must submit such amount to the court with the notice of appeal. If the requisite funds are not available and Plaintiff seeks to proceed in forma pauperis on his appeal, he must complete an affidavit in support of such request and supply the court with a certified copy of his prison account statement for the 6-month period preceding the filing of the appeal. However, Plaintiff is informed that regardless of this court's determination on his in forma pauperis motion the entire appellate filing fee will be collected from those persons having custody of him from funds available in his prison account in a manner similar to that outlined in this order.

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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 gove rni ng civil actions in federal court, as a prisoner you will be obligated to pay the full fi l i ng fee of $250.00 for a civil action. If you later file an appeal, the filing fee for the appe al 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 appropri ate , your IFP application. If you do not have enough money to pay the full filing fee when your action is filed, you can file t h e action without prepayment of the filing fee. However, the court will a s s e s s and, w h en funds exist, collect an initial partial filing fee. The initial partial filing fee will be equal to 20 percent of the average monthly depos i t s 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, w h i c hever is greater. The court will order that you make the initial partial filing fee out of y our prison or jail account or any other funds y o u 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. Aft er the initial partial filing fee has been paid, you will be responsible for paying t h e 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 t o w ard the balance on the filing fee. Pursuant to an order of the court, the agency t h at has custody of you will collect that money and send payment s 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 e ve n if the action is subsequently dismissed for any reason, summary judgment i s grante d against you, or you fail to prevail at trial. In order to proceed with an action or appeal in forma pauperis you must complete t he affidavit in support of your request to proceed in forma pauperis and s u p p l y t h e court wit h a certified copy of your prisoner account statement for the 6-month period preceding t h e filing of the complaint or notice of appeal and return it to the court with your caus e of act i o n . If you submit an incomplete form or do not submit a prison or jail account st at ement with the form, your request to proceed in forma pauperis will be denied.

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Re g a r dl e s s of whether some or all of the filing fee has been paid, the court is re qui re d to screen your complaint and to dismiss the complaint if (1) your allegation of pove rty is untru e ; (2) the action is frivolous or malicious; (3) your complaint does not state a claim on which relief can be grante d; or (4) you sue a defendant for money damage s 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 whi ch were dismissed as frivolous or malicious or for failure to state a claim on which re l i e f can be granted, then you wi l l be prohibited from bringing any other actions in forma pauperis unless you are in imminent danger of serious physical injury. In such case s, 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.