Simmons v. Pine Bluff Commercial

Filing 2

ORDER directing the plaintiff to submit either the $350 filing fee or a completed and signed in forma application within 30 days of this order's entry date. The Clerk is directed to forward an ifp application, calculation sheet, and certificate, to plaintiff. Signed by Judge Kristine G. Baker on 9/10/12. (kpr) (Additional attachment(s) added on 9/10/2012: # 1 Main Document - Correct) (thd).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ALBERT F. SIMMONS
ADC #147660
V.

PLAINTIFF

NO: 5:12CV00294 KGB

PINE BLUFF COMMERCIAL

DEFENDANT
ORDER

Plaintiff Albert F. Simmons, an inmate who is currently incarcerated at the Arkansas
Department of Correction's Randall Williams Correctional Facility, filed a pro se 1 complaint (Dkt.
No. 1), pursuant to 42 U.S.C. § 1983, on July 30, 2012. Plaintiff did not submit the $350.00
statutory filing fee or file an application for leave to proceed in forma pauperis pursuant to 28 U.S. C.
§ 1915(a).
Under the Prison Litigation Reform Act of 1995, a prisoner who is permitted to file a civil
action in forma pauperis still must pay the full statutory filing fee of $350.00.

28 U.S.C.

§ 1915(b)(l). The only question is whether a prisoner will pay the entire filing fee at the initiation
of the proceeding or in installments over a period of time. Ashley v. Dilworth, 147 F.3d 715, 716
(8th Cir. 1998). Even if a prisoner is without assets and unable to pay an initial filing fee, he will

Plaintiff is notified of his responsibility to comply with the Local Rules of the Court,
including Rule 5.5(c)(2), which states: "It is the duty of any party not represented by counsel to
promptly notify the Clerk and the other parties to the proceedings of any change in his or her
address, to monitor the progress of the case, and to prosecute or defend the action diligently. A party
appearing for himself/herself shall sign his/her pleadings and state his/her address, zip code, and
telephone number. If any communication from the Court to a pro se plaintiff is not responded to
within thirty (30) days, the case may be dismissed without prejudice. Any party proceeding pro se
shall be expected to be familiar with and follow the Federal Rules of Civil Procedure."

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be allowed to proceed with his claims and the filing fee will be collected by the Court in installments
from the prisoner's inmate trust account. 28 U.S.C. § 1915(b)(4).

If the prisoner's case is subsequently dismissed for any reason, including a

determination that it is frivolous, malicious, fails to state a claim, or seeks monetary relief
against a defendant who is immune from such relief, the full amount of the $350.00 filing fee
will be collected and no portion of this filing fee will be refunded to the prisoner.
So that the Court can determine how the $350.00 filing fee will be paid, plaintiff is required
to submit, no later than 30 days after this order's entry date, either the full statutory filing fee, or an
application for leave to proceed in forma pauperis, along with a calculation sheet and certificate,
prepared and executed by an authorized official at the incarcerating facility.

Based on this

information, the Court will assess an initial partial filing fee if sufficient funds exist, and will also
direct the future collection of monthly installment payments from plaintiffs prison account until the
filing fee is paid in full. Id. 1915(b)(l) and (2). However, no prisoner will be prohibited from
bringing a civil action because he "has no assets and no means by which to pay the initial partial
filing fee." !d. 1915(b)(4).
IT IS THEREFORE ORDERED THAT:
1.

The Clerk is directed to forward an in forma pauperis application, calculation sheet,

and certificate, to plaintiff.
2.

Plaintiff is directed to submit the $350.00 statutory filing fee, or complete and sign

the in forma pauperis application, and file it, along with the completed calculation sheet and
certificate. Plaintiffs failure to do so within 30 days ofthis order's entry date will result in the
dismissal of his complaint.

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3.

Service is not appropriate at this time.

DATED this _l.e_ day of September, 2012.

Kristine G. Baker
United States District Judge

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