Watson et al v. Butler et al

Filing 8

ORDER directing the Clerk of the Court to file Plaintiffs' complaint. By separate Order the Court will determine whether pltfs' complaint is frivolous and whether it should go forward. Signed by Judge James M. Moody on 1/25/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

LACHANCY WATSON, ET AL.

VS.

PLAINTIFFS

CASE NO. 5:12CV00023 JMM

ENDA BUTLER, ET AL

DEFENDANTS

ORDER
Plaintiffs Earnest Smith and Kavianna Smith have filed a pro se civil rights action under 42
U.S.C. § 1983 without prepayment of the $350.00 filing fees and costs and Motions to Proceed In
Forma Pauperis.1
There is a two-step process to be followed by the district court in considering whether a pro
se should be permitted to proceed in forma pauperis. Martin-Trigona v. Stewart, 691 F.2d 856 (8th
Cir. 1982). First there is a determination of whether the plaintiff qualifies by economic status under
28 U.S.C. § 1915(a). If he or she does, the complaint is permitted to be filed. Id. Second,
assuming the allegation of poverty is not untrue, a determination is made under § 1915(e)(2)(B) of
whether the cause of action stated in the complaint is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief against a defendant who is immune
from such relief. If so, the complaint is to be dismissed. Id.2

1

The Court granted Plaintiff Lachancy Watson’s application to proceed in forma pauperis
on January 19, 2012.
2

In Martin-Trigona, the Eighth Circuit noted that “[s]ome courts have blurred the distinction
between § 1915(a) and § 1915[(e)(2)(B)] by approving the practice of denying leave to proceed in

forma pauperis on the ground that the complaint is frivolous or malicious.” 691 F.2d at 857.

Because it appears that plaintiffs’ economic situations qualifies them for in forma pauperis status,
the Court hereby grants their application to so proceed (#6 and #7).
Plaintiffs are hereby given notice of Local Rule 5.5(c)(2) of the United States District Courts
for the Eastern and Western Districts of Arkansas which states that pro se litigants are required to
monitor the progress of their case, to prosecute or defend the action diligently, and to respond to any
communication from the Court within thirty (30) days or their case could be dismissed without
prejudice.
The Clerk of the Court is directed to file Plaintiffs’ complaint. By separate Order the Court will

determine whether Plaintiffs’ complaint is frivolous on its face and should be dismissed or if the
case should go forward with service of process.

IT IS SO ORDERED THIS

25

day of January , 2012.

James M. Moody
United States District Judge

The Court stated, however, that [t]he practice observed by most courts is to consider only the
petitioner’s economic status in making the decision whether to grant leave to proceed in forma
pauperis” and that “[o]nce leave has been granted, the complaint should be filed and the court
should consider whether to dismiss pursuant to § 1915 [(e)(2)(B)].” Id. See also Haugen v.
Sutherlin, 804 F.2d 490, 491 n.2 (8th Cir. 1986)(the court may certify that the plaintiff may
proceed in forma pauperis, assuming verification that the plaintiff is a pauper, and may allow
plaintiff to file the complaint without paying a filing fee; however, before requiring service of
process on the defendant(s), the court should evaluate the complaint to determine if it is frivolous
on its face and, if so, it should be dismissed).