Yancey v. Dietsch et al
Filing
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ORDER granting 1 MOTION for Leave to Proceed in forma pauperis. The clerks office is directed to file the complaint without the prepayment of the filing fee. The plaintiff is directed to submit an initial partial filing fee of $5.37 by no later than 12/20/13. The instant action will be dismissed unless either the initial partial filing fee of $5.37 is received by 12/20/13 or the court grants an enlargement of time to pay the initial partial filing fee in response to a written mot ion. The institution having custody of the plaintiff is directed to collect and remit monthly payments in the manner set forth until the $350 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 is an 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. 2 MOTION to Appoint Counsel is denied. Signed by Chief Judge Linda R Reade on 11/20/13. (ksy)(copy w/NEF to Plf, Clarinda Correctional Facility)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
NATHANIEL YANCEY,
Plaintiff,
No. C13-0106-LRR
vs.
ORDER
TRACY DIETSCH, RANDY CASPERS,
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). The
plaintiff filed both applications on October 10, 2013. Along with his applications, the
plaintiff submitted a complaint pursuant to 42 U.S.C. § 1983.
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).1 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. §
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The court notes that the plaintiff may be under the mistaken impression that the
filing fee is $150.00. At least since 2006, the filing fee has not been $150.00. And, on
April 9, 2006, the filing fee increased from $250.00 to $350.00. In the event that the
plaintiff’s desire to pursue this action is altered by the actual filing fee, the plaintiff may
write to the court and ask that his action be dismissed. Upon receipt of the plaintiff’s
notice, the court will dismiss without prejudice the plaintiff’s action.
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 the
documents that the plaintiff included with his application to proceed in forma pauperis, the
court finds that the initial partial filing fee is $5.37. Id. The plaintiff shall submit $5.37
by no later than December 20, 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
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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
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.
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 Phillips v. Jasper County
Jail, 437 F.3d 791, 794 (8th Cir. 2006); see also Taylor v. Dickel, 293 F.3d 427, 428 (8th
Cir. 2002) (discussing 28 U.S.C. § 1915(e)(1)); 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 in this
action, the court does not believe that assistance of counsel is warranted at this time. The
plaintiff’s failure to protect claim is not complex, and it is at least questionable whether
such claim is cognizable in light of the facts alleged, which appear to indicate that the
plaintiff told the defendants that he was generally having issues with others and had not
told them that he had been threatened by a particular individual and that a significant
amount of time passed between when he complained to the defendants and when he was
assaulted. See, e.g., Prater v. Dahm, 89 F.3d 538, 541-42 (8th Cir. 1996) (finding that
a prisoner failed to show that a prison official “actually knew of the risk” to the prisoner
when the prisoner told the official that he received threats from his roommate because, in
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part, after reporting the threats, the prisoner and his roommate told the official that there
would be no trouble and the two “were incarcerated together for a substantial period of
time without incident”). Accordingly, the plaintiff’s application for appointment of
counsel 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 without the prepayment of the
filing fee.
3) The plaintiff is directed to submit an initial partial filing fee of $5.37 by no later
than December 20, 2013. The instant action will be dismissed unless either the
initial partial filing fee of $5.37 is received by December 20, 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.
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7) The plaintiff’s application for appointment of counsel (docket no. 2) is denied.
DATED this 20th day of November, 2013.
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TO:
WARDEN/ADMINISTRATOR
Clarinda Correctional Facility, Clarinda, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Nathaniel Yancey, #6846190, an inmate at your
facility, filed the following lawsuit in the United States District Court for the Northern
District of Iowa: Yancey v. Dietsch et al., Case No. C13-0106-LRR. 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 $5.37, 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 $5.00, 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.
Deputy Clerk
_______________________
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa
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