Bush v. Hetzel et al(INMATE 1)
ORDER AND OPINION ON MOTION directing payment of initial partial filing fee of $12.97 be paid on or before 9/11/2012; 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 Easterling Correctional Facility. Signed by Honorable Judge Wallace Capel, Jr. on 8/29/2012. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
WESLEY MAURICE BUSH, #251500,
GARY HETZEL, et al.,
) CIVIL ACTION NO. 2:12-CV-742-WKW
ORDER AND OPINION ON MOTION
The plaintiff, a state inmate, filed an application for leave to proceed in forma
pauperis before this court. Court Doc. No. 2. 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.
The plaintiff submitted certified financial information which provides the court with
information necessary to determine the average monthly deposits to and average monthly
balance of the plaintiff's inmate account prior to the filing of this complaint. A review of this
information reveals that the plaintiff lacks the funds necessary to pay the $350.00 filing fee.
The documents further establish that for the six month period immediately preceding the
filing of the instant complaint the average monthly deposits of plaintiff's prison account were
$64.83. Such amount is greater than the average monthly balance of plaintiff's account.
Thus, in accordance with the provisions of 28 U.S.C. § 1915(b)(1)(A), the plaintiff is
required to pay an initial partial filing fee of $12.97. Accordingly, it is
ORDERED that on or before September 11, 2012 the plaintiff shall forward to the
Clerk of this Court the sum of $12.97 as an initial partial filing fee. The 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 the plaintiff's prison account and
are not now available to him, the plaintiff must make arrangements for payment of the
requisite filing fee upon receipt of additional funds in his inmate account.
In accordance with the provisions of 28 U.S.C. § 1915(b)(2), it is hereby
1. The 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 the plaintiff shall forward the 20 percent
payments described in the above paragraph from the plaintiff's account to the clerk of this
court each time the amount in the plaintiff's account exceeds $10.00 until the $350.00 filing
fee is paid in full. Id.
To aid the plaintiff and those persons having custody of the 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 Easterling Correctional Facility. The account clerk is hereby
advised that no funds may be taken from the plaintiff's account for payment of the
$12.97 initial partial filing fee without permission of the plaintiff as the plaintiff must
request payment of such by the account clerk.
It is further
ORDERED that except to the extent that payment is required under this order the
plaintiff's motion for leave to proceed in forma pauperis is hereby GRANTED.
The 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. The
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.
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 remains obligated to pay the $350.00
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 persons having custody of the plaintiff
pursuant to the directives contained in this order. Moreover, the 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). Accordingly, if the plaintiff does not wish to proceed with
this case he may seek dismissal of the case and request that no filing fee be collected.
Additionally, the 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 the 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 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 with 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 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.
Done this 29th day of August, 2012.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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