Bunker v. Black Hawk County Jail
Filing
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ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Justin Bunker. The clerk's 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 initial partial filing fee of $31.00 by no later than 5/22/13. The clerk's office is directed to dismiss without prejudice this action, unless either the initial partial filing fee of $31.00 is received by 5/22/13 or the court grants a n enlargement of time to pay the initial partial filing fee inresponse 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 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. The plaintiff is directed to file by no later than 5/22/13 an additional sta tement. Unless the plaintiff files a statement by 5/22/13 or the court grants an enlargement of time to file a statement, the clerk's office is directed to dismiss without prejudice this action. 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. Signed by Chief Judge Linda R Reade on 4/24/13. (ksy)(Copy w/NEF to Plf and Warden; CRF)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
JUSTIN BUNKER,
Plaintiff,
No. C13-2020-LRR
vs.
ORDER
UNNAMED,
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 March 12, 2012. 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 account balance, the court finds that the initial partial filing fee is $31.00.
Id. The plaintiff shall submit $31.00 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
of filing fee to the appropriate official at the place where the plaintiff is an inmate.
In addition, a review of the complaint indicates that, although the plaintiff alluded
to some individuals in the “statement of claim” section, the plaintiff did not name a
particular defendant. The plaintiff must inform the court who he desires to sue. If he does
not know the specific identity of a defendant, he should attempt to convey as much
information about the entity or individual that caused harm to him. So, the plaintiff shall
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submit to the court an additional statement that names each defendant and, if the name of
a particular defendant is unknown, a description by which the defendant can be identified
with a reasonable amount of certainty. Such statement must be filed by no later than May
22, 2013. If the plaintiff fails to file a statement by May 22, 2013, this action will be
dismissed. If necessary, the plaintiff may request in a written motion an extension of time
to file his additional statement. 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 (docket no. 1-1) without the
prepayment of the filing fee.
3) The plaintiff is directed to submit an initial partial filing fee of $31.00 by no later
than May 22, 2013. The clerk’s office is directed to dismiss without prejudice this
action, unless either the initial partial filing fee of $31.00 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
1
Before proceeding with his action, the plaintiff should consider that administrative
remedies must be exhausted 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).
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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) Consistent with the foregoing, the plaintiff is directed to file by no later than May
22, 2013 an additional statement. Unless the plaintiff files a statement by May 22,
2013 or the court grants an enlargement of time to file a statement, the clerk’s office
is directed to dismiss without prejudice this action. 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 April, 2013.
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TO:
WARDEN/ADMINISTRATOR
Black Hawk County Jail, Waterloo, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Justin Bunker, an inmate at your facility, filed the
following lawsuit in the United States District Court for the Northern District of Iowa:
Bunker v. Unnamed, Case No. C13-2023-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 $31.00, 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, after the
plaintiff pays the initial partial filing fee of $31.00, 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.
_______________________
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa
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