SIMMONS v. CORTEZ et al

Filing 12

ORDER Granting re 2 Motion for Leave to Proceed in forma pauperis filed by Randy Simmons ( PLRA forms due by 8/2/2018.) Signed by Magistrate Judge G. R. Smith on 7/3/18. (Attachments: # 1 PLRA Forms) (jrb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
RANDY SIMMONS,
Petitioner,
v.
JOAQUIN CORTEZ, et al.,
Respondent.

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FILED
Scott L. Poff, Clerk
United States District Court

By jburrell at 12:19 pm, Jul 03, 2018

CV418-145

ORDER
Plaintiff Randy Simmons Taft has filed this 42 U.S.C. ' 1983 claim
has filed this 42 U.S.C. ' 1983 claim against the prosecutors, judge, and
clerk of court involved in his state criminal conviction.
seeks to proceed in forma pauperis (IFP).

Doc. 2.

Doc. 1.

He

After reviewing

plaintiff’s application, it appears that he lacks sufficient resources to
prepay the filing fee. Accordingly, the Court GRANTS plaintiff leave to
proceed in forma pauperis. Doc. 2.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110
Stat. 1321 (PLRA), all prisoners, even those who are allowed to proceed
IFP, must pay the full filing fee of $350.00.
1

28 U.S.C. ' 1915(b)(1).

Prisoner IFP litigants must pay an initial partial filing fee of 20 percent
of the greater of the average monthly deposits to, or average monthly
balance in, the prisoner’s account for the 6-month period immediately
preceding the filing of the Complaint. Prison officials are then required
to collect the balance of the filing fee by deducting 20 percent of the
preceding month’s income credited to the prisoner’s account. 28 U.S.C.
' 1915(b)(2). This payment shall be forwarded to the Clerk of Court
Aeach time the amount in plaintiff's account exceeds $10 until the full
filing fees are paid.@ Id. The entire filing fee must be paid even if the
suit is dismissed at the outset because it is frivolous, malicious, fails to
state a claim, or seeks monetary damages against a defendant who is
immune from such relief.
In addition to requiring payment of the full filing fee, the PLRA
now requires prisoners to exhaust all administrative remedies before
challenging “prison conditions” in a civil action. 42 U.S.C. ' 1997e; see
18 U.S.C. ' 3626(g)(2). All prisoner civil rights actions filed after April
26, 1996 are subject to dismissal if the prisoner has not exhausted the
available administrative remedies with respect to each claim asserted.

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Moreover, even if the Complaint is dismissed for failure to exhaust, the
prisoner will still be responsible for payment of the full filing fee.
The PLRA also provides that a prisoner cannot bring a new civil
action or appeal a judgment in a civil action in forma pauperis if the
prisoner has on three or more prior occasions, while incarcerated,
brought a civil action or appeal in federal court that was dismissed
because it was frivolous, malicious, or failed to state a claim upon which
relief may be granted. The only exception to this “three strikes” rule is
if the prisoner is in “imminent danger of serious physical injury.”
28 U.S.C. ' 1915(g). 1
Because of these legal parameters, the Court will give plaintiff an
opportunity, at this time, to voluntarily dismiss the Complaint pursuant
1

Plaintiffs are generally required to pay a filing fee in order to institute a civil action
in a federal district court. 28 U.S.C. ' 1914. Indigent prisoners may avoid
prepayment of the filing fee under 28 U.S.C. ' 1915, but must surmount ' 1915(g):
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. ' 1915(g). A three-striker who fails to show “imminent danger” must pay
the complete $350 filing fee when he initiates suit. Vanderberg v. Donaldson, 259
F.3d 1321, 1324 (11th Cir. 2001). Short of that, the court dismisses the Complaint
without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
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to Fed. R. Civ. P. 41(a)(1). Such a voluntary dismissal will not require
plaintiff to pay the filing fee or count as a dismissal which may later
subject plaintiff to the three-dismissal rule under section 1915(g).
IT IS HEREBY ORDERED that:
(1)

Plaintiff must furnish the enclosed Prisoner Trust Fund

Account Statement to the trust (financial) officer of each prison where
he has been confined for the past six months. The trust officer will
complete and sign the form and return the form and supporting
documents to plaintiff for submission to the Court. Two copies of the
form are enclosed for this purpose.
(2)

Plaintiff must sign and date the enclosed Consent to

Collection of Fees from Trust Account.

By signing this form,

plaintiff gives his consent to the collection of the entire filing fee from his
prison account in installments, in accordance with the provisions of the
Prison Litigation Reform Act.
(3)

Plaintiff must return both the Prisoner Trust Account

Statement and the Consent to Collection of Fees from Trust
Account to the Clerk within thirty days of the date this Order is served.

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The Clerk of Court is DIRECTED to serve along with a copy of this
Order (1) a Prisoner Trust Account Statement form, and (2) the Consent
to Collection of Fees from Trust Account form.
Plaintiff shall have thirty days from the service of this Order to fill
out and return both forms.

Once plaintiff has complied with the

conditions of this Order, the Court will review plaintiff's Complaint to
determine which, if any, claims are viable and which, if any, defendants
should be served with a copy of the Complaint. If no response is timely
received from plaintiff, the Court will presume that plaintiff desires to
have this case voluntarily dismissed.
Failure to comply with this Order within thirty days of the
date this Order is served shall result in the recommendation of
dismissal of plaintiff's case, without prejudice.
SO ORDERED, this

3rd

day of July, 2018.

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