Gray v. Burt
Filing
11
ORDER granting 2 and 3 MOTIONS for Leave to Proceed in forma pauperis filed by Antonio Vincent Gray; and denying 10 MOTION to Appoint Counsel filed by Antonio Vincent Gray. The clerks office is directed to file the complaint without the pre payment of the filing fee. The plaintiff is directed to submit an initial partial filing fee of $5.98 by no later than 12/11/12. The instant action will be dismissed unless either the initial partial filing fee of $5.98 is received by 12/1 1/12 or the court grants an enlargement of time to pay the initial partial filing fee in response to a written motion. The institution having custody of the plaintiff is directed to collect and remit monthly payments until the $350.00 filing fee is paid in full. The clerks office is directed to send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff isan inmate. The court reserves ruling on the plaintiffs claims for purposes of 28 U.S.C. § 1915(e)(2)(B) and/or 28 U.S.C. § 1915A. Signed by Chief Judge Linda R Reade on 11/26/12. (See order text) (ksy)(copy w/NEF to Clarinda Correctional Facility; copy to Warden at Clarinda; CRF)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
ANTONIO VINCENT GRAY,
Plaintiff,
No. C12-0070-LRR
vs.
ORDER
JERRY BURT,
Defendant.
____________________________
The matter before the court is the plaintiff’s application to proceed in forma
pauperis (docket nos. 2 & 3), filed on July 19, 2012, and application for appointment of
counsel (docket no. 10), filed on August 27, 2012.
Previously, the court directed the plaintiff to submit a certificate of inmate account
and a signed complaint. The plaintiff complied with the court’s directives on August 27,
2012. Based on the plaintiff’s application and certificate of inmate account, it is clear that
the plaintiff does not have sufficient funds to pay the required filing fee. 28 U.S.C. §
1914(a) (requiring $350.00 filing fee). Thus, in forma pauperis status shall be granted to
the plaintiff. See generally 28 U.S.C. § 1915. The clerk’s office shall file the complaint
without the prepayment of the filing fee.
Although the court deemed it appropriate to grant the plaintiff in forma pauperis
status, the plaintiff is required to pay the full $350.00 filing fee by making payments on
an installment basis. 28 U.S.C. § 1915(b)(1); see also In re Tyler, 110 F.3d 528, 529-30
(8th Cir. 1997) (“[T]he [Prisoner Litigation Reform Act] makes prisoners responsible for
their filing fees the moment the prisoner brings a civil action or files an appeal.”). The
full filing fee will be collected even if the court dismisses the case because it is frivolous
or malicious, fails to state a claim on which relief may be granted, or seeks money
damages against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Here, the plaintiff must pay an initial partial filing fee in the amount of 20 percent
of the greater of his average monthly account balance or average monthly deposits for the
six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based his
average monthly deposits, the court finds that the initial partial filing fee is $5.98. Id.
The plaintiff shall submit $5.98 by no later than December 11, 2012. Id. If the court does
not receive payment by this deadline, the instant action shall be dismissed. See Fed. R.
Civ. P. 41(b) (permitting dismissal where a plaintiff either fails to prosecute or fails to
respond to an order of the court); Hutchins v. A.G. Edwards & Sons, 116 F.3d 1256,
1259-60 (8th Cir. 1997) (explaining court’s power to dismiss an action); Edgington v.
Missouri Dept. of Corrections, 52 F.3d 777, 779-80 (8th Cir. 1995) (same), abrogated on
other grounds by Doe v. Cassel, 403 F.3d 986, 989 (8th Cir. 2005). If necessary, the
plaintiff may request in a written motion an extension of time to pay the initial partial filing
fee.
In addition to the initial partial filing fee, the plaintiff must “make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s
account.” 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s
institution to collect the additional monthly payments and forward them to the court.
Specifically,
[a]fter payment of the initial partial filing fee, the prisoner
shall be required to make monthly payments of 20 percent of
the preceding month’s income credited to the prisoner’s
account. The agency having custody of the prisoner shall
forward payments from the prisoner’s account to the clerk of
the court each time the amount in the account exceeds $10
until the filing fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, after the plaintiff pays in full the initial partial filing
fee, the remaining installments shall be collected by the institution having custody of the
plaintiff. Id. The clerk’s office shall send a copy of this order and the notice of collection
2
of filing fee to the appropriate official at the place where the plaintiff is an inmate. The
court shall reserve ruling on the plaintiff’s claims for purposes of 28 U.S.C. §
1915(e)(2)(B).
Lastly, appointment of counsel is based on multiple factors, including the
complexity of the case, and, although the court does appoint attorneys in actions that arise
under 42 U.S.C. § 1983, it is not required to appoint an attorney. See Davis v. Scott, 94
F.3d 444, 447 (8th Cir. 1996) (setting forth factors to be considered for appointment of
counsel in civil case); Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (same);
Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985) (stating an indigent litigant enjoys
neither a statutory nor a constitutional right to have counsel appointed in a civil case).
Given the points that it made in its prior order, the court finds that appointing an attorney
is not necessary. Accordingly, the application for appointment of counsel shall be denied.
IT IS THEREFORE ORDERED:
1) The application to proceed in forma pauperis status (docket nos. 2 & 3) is
granted.
2) The clerk’s office is directed to file the complaint without the prepayment of the
filing fee.
3) The plaintiff is directed to submit an initial partial filing fee of $5.98 by no later
than December 11, 2012. The instant action will be dismissed unless either the
initial partial filing fee of $5.98 is received by December 11, 2012 or the court
grants an enlargement of time to pay the initial partial filing fee in response to a
written motion.
4) After the plaintiff pays the initial partial filing fee, the institution having custody
of the plaintiff is directed to collect and remit monthly payments in the manner set
3
forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full, the
plaintiff is obligated to pay and the institution having custody of him is obligated to
forward 20 percent of the preceding month’s income credited to his account each
time the amount in the account exceeds $10.00.
5) The clerk’s office is directed to send a copy of this order and the notice of
collection of filing fee to the appropriate official at the place where the plaintiff is
an inmate.
6) The court reserves ruling on the plaintiff’s claims for purposes of 28 U.S.C. §
1915(e)(2)(B) and/or 28 U.S.C. § 1915A.
7) The application for appointment of counsel (docket no. 10) is denied.
DATED this 26th day of November, 2012.
4
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?