Craig v. Cedar Falls Police Department
Filing
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ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Shannon Tyrone Craig; and denying 2 MOTION to Appoint Counsel filed by Shannon Tyrone Craig. 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 $21.40 by no later than 12/26/12. The instant action will be dismissed unless either the initial partial filing fee of $21.40 is received by 12/26/12 or t he 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 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. Signed by Chief Judge Linda R Reade on 11/27/12. (See order text) (ksy)(copy w/NEF to Plf at Newton Correctional Facility; copy to Warden at Newton Correctional Facility; CRF)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
SHANNON TYRONE CRAIG,
Plaintiff,
No. C12-2053-LRR
vs.
ORDER
CEDAR FALLS POLICE
DEPARTMENT,
Defendant.
____________________________
The matter before the court is the plaintiff’s application to proceed in forma pauperis
(docket no. 1). The plaintiff filed such application on July 25, 2012. Along with his
application to proceed in forma pauperis, the plaintiff submitted a complaint pursuant to 42
U.S.C. § 1983 and an application for appointment of counsel (docket no. 2).
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 his
average monthly deposits, the court finds that the initial partial filing fee is $21.40. Id.
The plaintiff shall submit $21.40 by no later than December 26, 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
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.
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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 record, 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 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 $21.40 by no later
than December 26, 2012. The instant action will be dismissed unless either the
initial partial filing fee of $21.40 is received by December 26, 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
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.
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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 27th day of November, 2012.
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TO:
WARDEN/ADMINISTRATOR
Newton Correctional Facility, Newton, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Shannon Tyrone Craig, #1091479, an inmate at your
facility, filed the following lawsuit in the United States District Court for the Northern
District of Iowa: Craig v. Cedar Falls Police Department, Case No. C12-2053-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 $21.40, 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 $21.40, 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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