El-Amin v. Thompson et al

Filing 3

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by AJamu Manu El-Amin. The clerk's office is directed to file the complaint without the prepayment of the filing fee. The plaintiff is directed to submit an initial partial payment filing fee of $6.00 by no later than 2/20/12. 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 clerk's office is directed to sen d 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. Section 1915(e)(2)(B) and/or 28 U.S.C. Sec. 1915A. Signed by Chief Judge Linda R Reade on 1/24/12. (Copy w/NEF to Plf at IMCC; Copy to Warden at IMCC; CRF) (ksy)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

AJAMU MANU EL-AMIN,
Plaintiff,

No. C11-2020-LRR

vs.
TOMMY THOMPSON, BLACK HAWK
COUNTY PUBLIC DEFENDERS
OFFICE, ANDREA DRYER, SUE
ALBRIGHT, AARON HAWBACKER,

ORDER

Defendants.
____________________________
The matter before the court is the plaintiff’s application to proceed in forma
pauperis (docket no. 1). The plaintiff submitted such application on May 19, 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 statements, 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 $6.00. Id. The
plaintiff shall submit $6.00 by no later than February 20, 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
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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
IT IS THEREFORE ORDERED:
1) The plaintiff’s application to proceed in forma pauperis (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 $6.00 by no later
than February 20, 2012. The instant action will be dismissed unless either the
initial partial filing fee of $6.00 is received by February 20, 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 that a private
attorney, even when appointed by the court, ordinarily does not act under color of state
law for purposes of filing an action under 42 U.S.C. § 1983, see Lemmons v. Law Firm
of Morris & Morris, 39 F.3d 264, 266 (10th Cir. 1994), or as a federal agent for purposes
of filing a Bivens action, see Haley v. Walker, 751 F.2d 284, 285 (8th Cir. 1984). Stated
differently, a federal suit generally does not arise for actions that an attorney (privately
retained, court-appointed or a public defender) takes during the course of representing a
defendant. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 70 L. Ed. 2d
509 (1981); Bilal v. Kaplan, 904 F.2d 14, 15 (8th Cir. 1990); Mills v. Criminal Dist.
Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988); Haley, 751 F.2d at 285. Additionally,
the plaintiff should be aware that, to state a claim under 42 U.S.C. § 1983, a plaintiff must
establish: (1) the violation of a right secured by the Constitution or laws of the United
States and (2) the alleged deprivation of that right was committed by a person acting under
color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40
(1988). In light of such standard, the plaintiff should keep in mind that he readily admits
in his complaint the following: (1) he experiences mental health problems; (2) he asked to
be placed in administrative segregation; (3) he repeatedly has attempted to harm himself;
(4) medical personnel treated him; and (5) many, if not all, of the conditions that he
experienced resulted from his own disruptive actions.
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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 24th day of January, 2012.

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TO:

WARDEN/ADMINISTRATOR
Iowa Medical and Classification Center, Oakdale, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Ajamu Manu El-Amin, #0035821, an inmate at

your facility, filed the following lawsuit in the United States District Court for the
Northern District of Iowa: El-Amin v. Tommy Thompson et al., Case No. C11-2020-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 $6.00, 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