Krier v. Iowa Department of Corrections et al
Filing
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ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Sean Edward Krier. The clerks office is directed to file the complaint (docket no. 1-1) without the prepayment of the filing fee. The plaintiff is directed to submit an initi al partial filing fee of $9.81 by no later than 5/22/13. The clerks office is directed to dismiss without prejudice this action, unless either the initial partial filing fee of $9.81 is received by 5/22/13 or the court grants an enlargement of time to pay the initial partial filing feein 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 d irected 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. 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. 2 MOTION to Appoint Counsel filed is denied. Signed by Chief Judge Linda R Reade on 4/23/13. (ksy)(copy w/NEF to Plf and Warden; CRF)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
SEAN EDWARD KRIER,
Plaintiff,
No. C13-0013-LRR
vs.
ORDER
IOWA DEPARTMENT OF
CORRECTIONS, JOHN BALDWIN,
JOHN FAYRAM, JERRY CONNELLY,
DR. DEOL, DR. RICHTER,
Defendants.
____________________________
The matter before the court is the plaintiff’s application to proceed in forma
pauperis (docket no. 1) and application for appointment of counsel (docket no. 2). Along
with his application to proceed in forma pauperis, the plaintiff submitted a complaint under
42 U.S.C. § 1983 (docket no. 1-1).
Based on the plaintiff’s application and certificate of inmate account (docket no. 1),
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 deems 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 on his
average monthly deposits, the court finds that the initial partial filing fee is $9.81. Id.
The plaintiff shall submit $9.81 by no later than May 22, 2013. 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
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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) and/or 28 U.S.C. § 1915A.1
Regarding the plaintiff’s request for appointment of counsel, the court’s
determination 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 record, the
court finds that appointing an attorney is not necessary. Accordingly, the plaintiff’s for
appointment of counsel (docket no. 2) shall be denied.
IT IS THEREFORE ORDERED:
1) The plaintiff’s application to proceed in forma pauperis status (docket no. 1) is
granted.
2) The clerk’s office is directed to file the complaint (docket no. 1-1) without the
prepayment of the filing fee.
3) The plaintiff is directed to submit an initial partial filing fee of $9.81 by no later
than May 22, 2013. The clerk’s office is directed to dismiss without prejudice this
1
Before proceeding with his action, the plaintiff should consider that merely
disagreeing with the medical treatment that is provided does not typically give rise to a
valid cause of action. See Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002) (dismissing
case as frivolous because “[n]either differences of opinion nor medical malpractice state
an actionable Constitutional violation”); see also Williams v. Kelso, 201 F.3d 1060, 1065
(8th Cir. 2000) (“[T]he law requires that [the] plaintiff make a showing of subjective
awareness by the prison officials of a “substantial risk” of “serious harm” . . . in order
to establish [a viable] cause of action.”).
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action, unless either the initial partial filing fee of $9.81 is received by May 22,
2013 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
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 plaintiff’s application for appointment of counsel (docket no. 2) is denied.
DATED this 23rd day of April, 2013.
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TO:
WARDEN/ADMINISTRATOR
Anamosa State Penitentiary, Anamosa, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Sean Edward Krier, #6980360, an inmate at your
facility, filed the following lawsuit in the United States District Court for the Northern
District of Iowa: Krier v. Iowa Department of Corrections, et al., Case No. C13-0013LRR. The inmate was granted in forma pauperis status pursuant to 28 U.S.C. § 1915(b),
which requires partial payments of the $350.00 filing fee. Based on the inmate’s account
information, the court has assessed an initial partial filing fee of $9.81, which the inmate
must pay now to the clerk of court. 28 U.S.C. § 1915(b)(1).
After payment of the initial partial filing fee, the [inmate] shall
be required to make monthly payments of 20 percent of the
preceding month’s income credited to [his] account. The
agency having custody of the [inmate] shall forward payments
from [his] 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, you must monitor the account and send payments to
the clerk of court according to the system provided in 28 U.S.C. § 1915(b)(2), that is,
after the plaintiff pays the initial partial filing fee of $9.81, you should begin making
monthly payments of 20 percent of the preceding month’s income credited to the inmate’s
account.
Please make the appropriate arrangements to have these fees deducted and sent to
the court as instructed.
_______________________
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa
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