Ward v. Franciscy
Filing
42
OPINION AND ORDER GRANTING 41 MOTION for Leave to Proceed In Forma Pauperis filed by Plaintiff Kerwin M Ward. The Plaintiff is DISCHARGED from making any further installment payments toward the filing fee. Signed by Magistrate Judge Roger B Cosbey on 7/11/11. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KERWIN M. WARD,
Plaintiff,
v.
JOSHUA FRANCISCY,
Defendant.
)
)
)
)
)
)
)
)
)
CAUSE NO. 1:10cv0429 RBC
OPINION AND ORDER
When Plaintiff Kerwin Ward filed this action, he was a prisoner confined at the Westville
Correctional Facility. The court granted Ward leave to proceed without full prepayment of fees
and costs, which meant that he had to pay the full filing fee in installments from his prison trust
account. 28 U.S.C. § 1915(b). Ward has not yet paid the full filing fee in this action, but has now
been released from custody and is no longer confined in any jail or penal facility.
Where a prisoner is released before paying the filing fee in full, he must pay any initial
partial filing fee that is assessed, and any installment payments justified by the income to his
prisoner trust account. Robbins v. Switzer, 104 F.3d at 897-8. But after his release, Section
1915(b)(4) permits a former prisoner who has paid the initial partial filing fee assessed under
Section 1915(b)(1) and any installment payments due under Section 1915(b)(2), to be excused
from further payments on the filing fee if he is destitute. Id. at 898.
Ward has made all payments required under Section 1915(b)(1) and Section 1915(b)(2)
and has filed a petition to proceed in forma pauperis as a nonprisoner. Review of his petition
establishes that he is has not been employed since his release from custody and that he has no
assets. Accordingly, pursuant to 28 U.S.C. § 1915(b)(4), Ward is currently entitled to proceed
without making further payments on the filing fee. “Unsuccessful litigants are liable for fees and
costs and must pay when they are able.” Robbins v. Switzer, 104 F.3d at 898, citing McGill v.
Faulkner, 18 F.3d 456 (7th Cir. 1994). So, if Ward prevails in this case, or he is ultimately
unsuccessful but his financial situation has improved, he may still be required to make further
payments toward fees and costs.
For the foregoing reasons, the court GRANTS the Plaintiff’s motion to proceed in forma
pauperis (DE 41) and DISCHARGES the plaintiff from making any further installment
payments toward the filing fee.
SO ORDERED.
ENTERED: July 11, 2011
s/Roger B. Cosbey
Roger Cosbey
United States Magistrate Judge
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?