Howard v. Farmers Insurance Company, Inc. et al

Filing 6

ORDER taking under advisement 5 Motion for Leave to Proceed in forma pauperis, pending Plaintiff's submission of an initial partial filing fee. Plaintiff shall submit an initial partial filing fee of $2.50 to the clerk of the court on or before 5/18/18. Any objection to this order must be filed on or before the date payment is due. Signed by Magistrate Judge Gwynne E. Birzer on 4/13/18. Mailed to pro se party Derrick Howard by regular mail. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERRICK HOWARD,
Plaintiff,
v.
FARMERS INSURANCE
COMPANY, INC., et al.,
Defendants.

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Case No. 18-4011-DDC-GEB

ORDER
This matter is before the Court on Plaintiff’s Motion to Proceed Without
Prepayment of Fees (ECF No. 5). As outlined below, Plaintiff’s Motion to Proceed
without Prepayment of Fees (ECF No. 5) is taken under advisement, pending
Plaintiff’s submission of an initial partial filing fee.
Background
Plaintiff Derrick Howard brings this civil action for breach of contract, as well as
other tort claims, against two insurance companies and their representatives. Generally,
Plaintiff alleges the companies insured two residential properties he owns in Missouri,
and seeks damages for the companies’ failure to pay damage claims on those properties,
as well as damages incurred for what he alleges to be the companies’ fraudulent actions
and conspiracy to deny him insurance proceeds due under the policies. Plaintiff is a
prisoner held in federal custody in the state of Florida, and asserts this Court possesses
diversity jurisdiction over his claims under 28 U.S.C. § 1332(a) because the parties are

citizens of different states, and he seeks more than $75,000 in damages from Defendants.
Plaintiff proceeds pro se and seeks leave to proceed in forma pauperis.
Motion to Proceed In Forma Pauperis (ECF No. 2)
This motion is governed by 28 U.S.C. § 1915(b). Because Plaintiff is a prisoner,
he must pay the full filing fee in installment payments taken from his prison trust account
when he “brings a civil action or files an appeal in forma pauperis[.]”1 Pursuant to §
1915(b)(1), the court must assess, and collect when funds exist, an initial partial filing fee
calculated upon the greater of (1) the average monthly deposit in his account or (2) the
average monthly balance in the account for the six-month period preceding the filing of
the complaint. Thereafter, Plaintiff must make monthly payments of twenty percent of the
preceding month’s income in his institutional account.2 However, a prisoner shall not be
prohibited from bringing a civil action or appeal because he has no means to pay the
initial partial filing fee.3
Here, Plaintiff’s average monthly deposit is $12.50, and the average balance is
$5.98. The Court therefore assesses an initial partial filing fee of $2.50, which is twenty
percent of the average monthly deposit.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before May 18,
2018, Plaintiff shall submit an initial partial filing fee of $2.50 to the clerk of the court.4
Any objection to this order must be filed on or before the date payment is due. The failure
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§ 1915(b)(1).
§ 1915(b)(2).
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§ 1915(b)(4).
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Plaintiff will be required to pay the balance of the $350.00 filing fee in installments calculated
pursuant to 28 U.S.C. § 1915(b)(2).
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to file a timely response may result in the dismissal of this action without prejudice and
without additional prior notice to Plaintiff.
A copy of this order shall be transmitted to Plaintiff by regular U.S. mail.

IT IS SO ORDERED.
Dated April 13, 2018, at Wichita, Kansas.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
U.S. Magistrate Judge

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