Gray v. Whaley (INMATE2)

Filing 3

ORDER directing payment of initial partial filing fee of $2.67 be paid on or before 2/28/06; 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 @ Bibb Correctional Facility. Signed by Judge Vanzetta P. McPherson on 2/8/06. Furnished to cashier. (djy, )

Gray v. Whaley (INMATE2)

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Case 2:06-cv-00107-MEF-WC

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Filed 02/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ______________________________ K Y M GRAY, #203 553 P l a i n t if f , v. P A U L WHALEY, et al., D e f e n d a n ts . __________________________________ * * * * * 2:06-CV-107-MEF (W O )

O R D E R ON MOTION P lain tiff is an inmate incarcerated at the Bibb Correctional Facility located in Brent, A la b a m a . He filed an affidavit in support of a request for leave to proceed in forma pauperis, o n February 1, 2006. In accordance with the provisions of 28 U.S.C. § 1915(b)(1), a p ris o n e r who seeks to proceed in forma pauperis in a civil action or on appeal is required to p a y the full amount of the requisite filing fee. However, where an inmate lacks the funds n e c es s a ry to pay the entire filing fee upon initiation of the civil action or appeal and has m o n e y available to him, the court shall assess and collect an initial partial filing fee.1 A n inmate account clerk filed a certificate which indicates the balance in Plaintiff's p riso n account at the time the instant complaint was filed and provides the court with in fo rm a tio n necessary to determine the average monthly balance in his prison account and

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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th e average monthly deposits to such account for the six month period preceding the filing o f this complaint. A review of this information reveals that Plaintiff lacks the funds n e c e ss a ry to pay the $250.00 filing fee. The documents further establish that for the six m o n th period immediately preceding the filing of the instant complaint the average monthly d e p o sits to Plaintiff's prison account were $13.33. Such amount was greater than the average m o n th ly balance in Plaintiff's account ($3.43). Thus, in accordance with the provisions of 2 8 U.S.C. § 1915(b)(1)(A), Plaintiff is required to pay an initial partial filing fee of $2.67 (20 p e rc e n t of the average monthly deposits to Plaintiff's account). Accordingly, it is ORDERED that: 1 . On or before February 28, 2006 Plaintiff shall forward to the Clerk of this Court th e sum of $2.67 as an initial partial filing fee. Plaintiff is hereby advised that it is his re sp o n sibility to submit the appropriate paperwork to the prison account clerk for tra n sm is s io n of his funds to this court for payment of the initial partial filing fee. If the funds a re not now available in Plaintiff's prison account, he must make arrangements for payment o f the requisite filing fee; 2 . Plaintiff shall make monthly payments of 20 percent of each preceding month's in c o m e and/or funds credited to his account as payments towards the $250.00 filing fee in a c c o rd a n c e with 28 U.S.C. § 1915(b)(2); 3. Those persons having custody of Plaintiff shall forward the above described

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p a y m e n ts from his inmate account to the Clerk of this Court each time the amount in the P lain tiff'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 Bibb C o rre c tio n a l Facility; 5. Except to the extent that payment is required under this order, Plaintiff's motion fo r leave 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 c o m p lia n c e with this order may result in a Recommendation by the Magistrate Judge that th is case be dismissed and such dismissal will not be reconsidered unless exceptional c irc u m sta n c e s exist.2
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Plaintiff is advised that if he is unable to procure the initial partial filing fee within the time a llo w e d by this court he must inform the court of such inability and request an extension of time w it h in which to file the fee. Plaintiff is further advised that if this case is dismissed for failure to p a y the initial partial filing fee or for any other reason he remains obligated to pay the $250.00 f ilin g fee. The filing fee will be collected from any funds which become available to Plaintiff and will be f o r w a r d e d to this court by those persons having custody of the plaintiff pursuant to the directives c o n t a i n e d in this order. Moreover, Plaintiff is hereby informed that notwithstanding payment of the in it ia l partial filing fee this court will dismiss this case prior to service of process if the court d e t e r m in e s that the action is frivolous, malicious, fails to state a claim upon which relief may be g r a n t e d , or seeks monetary relief from a defendant who is immune from such relief in accordance w i t h the provisions of 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii). P l a in tif f is also advised that if he files a notice of appeal he will likewise be required to pay the r e q u is ite appellate filing fee which is currently $255.00. Thus, if at the time Plaintiff files a notice of a p p e a l he has the necessary funds to pay the $255.00 filing fee, he must submit such amount to the court w ith the notice of appeal. If the requisite funds are not available and Plaintiff seeks to proceed in forma p a u p e r i s 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 m o tio n the entire appellate filing fee will be collected from those persons having custody of him from

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D o n e this 8th day of February 2006.

/s / Vanzetta Penn McPherson V A N Z E T T A PENN MCPHERSON U N IT E D STATES MAGISTRATE JUDGE

funds available in his prison account in a manner similar to that outlined in this order.

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NOTICE IN F O R M A T IO N TO PRISONERS SEEKING LEAVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915 IN CIVIL ACTIONS BEFORE ANY FEDERAL COURT I n accordance with 1996 amendments to the in forma 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 fu ll filing fee of $250.00 for a civil action. If you later file an appeal, the filing fee for th e appeal is $255.00 and you will likewise be responsible for payment of such fee. T h u s , if at the time you file your action you have the funds available to pay the r e q u is ite filing fee, you must send such amount to the court with your complaint or n o tic e 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, 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 b e equal to 20 percent of the average monthly deposits to your prison or jail account for the s ix months immediately preceding the filing of the lawsuit, or 20 percent of the average m o n th ly 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 o r jail account or any other funds you have indicated are available to you. If you fail to s u b m it the initial partial filing fee, your case will be dismissed and the full amount of th e filing fee will be collected from those persons having custody of you. A f te r the initial partial filing fee has been paid, you will be responsible for paying th e balance of the filing fee. To fulfill your obligation for payment of the full filing fee, e a ch month you will owe 20 percent of your preceding month's income toward the balance o n the filing fee. Pursuant to an order of the court, the agency that has custody of you will c o lle c 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 a g a in s t you, or you fail to prevail at trial. In order to proceed with an action or appeal in forma pauperis you must complete th e affidavit in support of your request to proceed in forma pauperis and supply the court w ith a certified copy of your prisoner account statement for the 6-month period preceding th e filing of the complaint or notice of appeal and return it to the court with your cause of a c tio n . If you submit an incomplete form or do not submit a prison or jail account statement w ith the form, your request to proceed in forma pauperis will be denied. R e g a r d les s of whether some or all of the filing fee has been paid, the court is

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required to screen your complaint and to dismiss the complaint if (1) your allegation o f poverty is untrue; (2) the action is frivolous or malicious; (3) your complaint does n o t 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 ic h were dismissed as frivolous or malicious or for failure to state a claim on which r e lie f can be granted, then you will be prohibited from bringing any other actions in fo rm a pauperis unless you are in imminent danger of serious physical injury. In such c a se s , your request to proceed in forma pauperis will be denied and you will be r e q u ir e d to pay the appropriate filing fee before proceeding in your civil action.