Montague v. Bell et al (INMATE3)

Filing 5

ORDER directing payment of initial partial filing fee of $40.00 be paid on or before May 11, 2011; 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 the Elmore County Jail. Signed by Honorable Wallace Capel, Jr on 4/20/2011. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RUSSELL MONTAGUE,
Plaintiff,
v.
LIEUTENANT BELL, et al.,

Defendants.

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Civil Action No. 2:11cv256-WHA
(WO)

ORDER
NOTICE TO PRISONERS: Pursuant to the 1996 revisions to 28 U.S.C. § 1915, the
requisite procedures for filing civil actions in forma pauperis have substantially
changed. Additionally, in accordance with the provisions of the Deficit Reduction Act
of 2005 (Pub. L. No. 109-171), the filing fee for civil actions has increased to $350.00.
The attached notice contains an explanation of these changes.
Plaintiff has filed an affidavit in support of a request for leave to proceed in forma
pauperis before this court in this Bivens action.1 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
1

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

filing fee.
An inmate account clerk filed a certificate that 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 of Plaintiff’s 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 information reveals that Plaintiff lacks the funds
necessary to pay the $350.00 filing fee. The documents further indicate that for the sixmonth period immediately preceding the filing of the instant complaint, the average monthly
deposits to Plaintiff’s prison account were $200.00. Such amount was greater than the
average monthly balance in Plaintiff’s account. 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 $40.00
(20 percent of the average monthly deposits to Plaintiff’s account).
Accordingly, it is
ORDERED that on or before May 11, 2011, Plaintiff shall forward to the Clerk of
this Court the sum of $40.00 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 have been dispersed from Plaintiff’s prison account and are not now available
to him, Plaintiff must make arrangements for payment of the requisite filing fee. In
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accordance with the provisions of 28 U.S.C. § 1915(b)(2), it is hereby
ORDERED that:
1. 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 $350.00 filing fee.
2. Those persons having custody of Plaintiff shall forward the above described
payments from Plaintiff’s account to the Clerk of this court each time the amount in
Plaintiff’s account exceeds $10.00 until the $350.00 filing fee is paid in full.
To aid Plaintiff and those persons having custody of Plaintiff in complying with the
requirements of this order, the Clerk is DIRECTED to furnish a copy of this order to the
account clerk at the Elmore County Jail.
It is further
ORDERED that except to the extent that payment is required under this order
Plaintiff's motion for leave to proceed in forma pauperis (Doc. No. 2) is hereby GRANTED.
Plaintiff is cautioned that if he fails to pay the initial partial filing fee in compliance
with this order the Magistrate Judge will recommend that his case be dismissed and such
dismissal will not be reconsidered unless exceptional circumstances exist. 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
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case is dismissed for failure to pay the initial partial filing fee or for any other reason
he remains obligated to pay the $350.00 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 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).
Additionally, Plaintiff is advised that if he files a notice of appeal he will likewise be
required to pay the requisite appellate filing fee which is currently $455.00. Thus, if at the
time Plaintiff files a notice of appeal he has the necessary funds to pay the $455.00 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
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custody of him from funds available in his prison account in a manner similar to that
outlined in this order.
Done this 20th day of April, 2011.

/s/Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

5

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
$350.00 for a civil action. If you later file an appeal, the filing fee for the appeal is $455.00 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
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.