Hess v. Gallagher et al
Filing
3
ORDER granting 1 PRO SE MOTION for Leave to Proceed in forma pauperis filed by Jeffrey David Hess. The clerk's office shall file the complaint without the prepayment of the filing fee. The plaintiff must pay an initial filing fee in the amoun t of $17.50 by no later than 1/3/12. If the court does not receive payment by this deadline the instant action shall be dismissed. The institution having custody of the plaintiff is directed to remit monthly payments until the $350.00 fili ng fee is paid in full. The clerk's office is directed to send a copy of this order and notice of collection of filing fee to the appropriate official at the place where the plaintiff is a inmate. The court reserves ruling on the plaintiff's claims for purposes of 28 U.S.C. Sec. 1915(e)(2)(B) and/or 28 U.S.C. Sec. 1915A. (See order text). Signed by Chief Judge Linda R Reade on 12/15/11. (Copy w/NEF to Plf at Dubuque County Jail; Copy to Dubuque County Jail; CRF) (ksy)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
JEFFREY DAVID HESS,
Plaintiff,
No. C11-1030-LRR
vs.
SEAN GALLAGHER, STEVEN
DRISCOLL,
ORDER
Defendants.
____________________________
The matter before the court is the plaintiff’s application to proceed in forma
pauperis (docket no. 1). The plaintiff filed such application on August 11, 2011. Along
with his application to proceed in forma pauperis, 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). 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 on the
plaintiff’s statements, the court finds that the initial partial filing fee is $17.50. Id. The
plaintiff shall submit $17.50 by no later than January 3, 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) and/or 28 U.S.C. § 1915A.1
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 $17.50 by no later
than January 3, 2012. The instant action will be dismissed unless either the initial
partial filing fee of $17.50 is received by January 3, 2012 or the court grants an
enlargement of time to pay the initial partial filing fee in response to a written
motion.
1
Before proceeding with his action, the plaintiff should be aware of the following.
A plaintiff must fully exhaust administrative remedies prior to commencing an action. See
42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 152
L. Ed. 2d 12 (2002) (stating exhaustion in cases covered by 42 U.S.C. § 1997e(a) is
mandatory); Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (concluding dismissal
is required when an inmate has not administratively exhausted before filing a lawsuit in
district court). Further, it appears that the plaintiff is currently litigating the charges filed
against him in State of Iowa v. Hess, Case No. AGCR095475 (Iowa Dist. Ct. Dubuque
County 201_). Generally speaking, an inmate is not able to call into question the validity
of criminal proceedings by filing an action under 42 U.S.C. § 1983. See Preiser v.
Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) (making clear
that, if a plaintiff is challenging the validity of his conviction or the duration of his
incarceration and seeking a determination that he is entitled to immediate or speedier
release, a writ of habeas corpus is the only federal remedy available); Otey v. Hopkins, 5
F.3d 1125, 1131 (8th Cir. 1993) (same).
3
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.
DATED this 15th day of December, 2011.
TO:
WARDEN/ADMINISTRATOR
Dubuque County Jail, Dubuque, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Jeffery David Hess, an inmate at your facility,
filed the following lawsuit in the United States District Court for the Northern District of
Iowa: Hess v. Gallagher et al., Case No. C11-1030-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 $17.50, 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, 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
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?