Surles v. Leach et al

Filing 57

OPINION AND ORDER denying 53 Motion to Amend/Correct. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAMUEL SURLES,
Plaintiff,
Case No. 12-cv-12403
v.
Paul D. Borman
United States District Judge
GAYLE LEACH, RAYMOND
BOOKER, and MARVA MYLES

Mona K. Majzoub
United States Magistrate Judge

Defendants.
_____________________________/

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO ALTER/AMEND THE
JUDGMENT (ECF NO. 53)
Now before the Court is Plaintiff Samuel Surles’ “Motion to Alter/Amend the Judgment”
requesting that the Court alter or amend its January 13, 2014 Order that granted Plaintiff’s
application to proceed without prepayment of fees or costs on appeal. (See ECF No. 52, Order
granting Application). “A district Court may alter or amend a judgment under Civil Rule 59(e) to
correct a clear error of law; account for newly discovered evidence or an intervening change in the
controlling law; or otherwise prevent manifest injustice.” Heil Co. v. Evanston Ins. Co., 690 F.3d
722, 728 (6th Cir. 2012).
In the present motion, Plaintiff requests that the Court amend or alter its January 13, 2014
Order that granted Plaintiff’s Application to Proceed without Prepayment of Fees or Costs on
Appeal. (ECF No. 52). Plaintiff argues that the Court “misunderstood his application and his
inability to pay the full amount of $455.00 filing fee”. (Mot. at 2). Plaintiff appears to argue that
because of his indigent status he should not be made to pay the filing fee at all or that it is within the
Court’s discretion to order that funds be withdrawn from his trust account only when there is a

$50.00 minimum present in the account. Plaintiff does not cite any statutory basis or case law for
this proposition.1
The January 13, 2014 Order that granted Plaintiff’s Application to Proceed without
Prepayment of Fees also specified that pursuant to 28 U.S.C. § 1915(a)(1) the Plaintiff was still
required to pay the full filing fee and to that end, “[t]he Court must assess, and if funds exist, collect
an initial partial filing fee consisting of twenty percent of the greater of (1) the average monthly
deposits to Plaintiff’s account, or (2) the average monthly balance in Plaintiff’ account for the
preceding six months.” (ECF No. 52, at 1). The Order also provided that the partial filing fee
assessed was $0.00 but that “the agency having custody of Plaintiff shall forward to the Clerk of the
Court, on a monthly basis if funds are available, twenty percent of the preceding month’s income
credited to Plaintiff’s account.” (Id. at 2).
First, the Court notes that it did not misapprehend Plaintiff’s Application to Proceed without
Prepayment of Fees. Plaintiff acknowledged in his affidavit in support of that application the exact
terms that the Court imposed in its January 13, 2014 Order. Indeed, the Plaintiff acknowledged
under penalty of perjury that he:
is liable for payment of the filing fee ($350.00 for an new case or $455.00 for an
appeal, and I authorize the correctional facility in which I am currently housed to (1)
provide information about my trust fund account to the federal court; and (2)
withdraw from my trust fund account and forward to the federal court (a) an initial
partial filing fee for this action (20% of the greater of my average monthly deposits
or average monthly deposits or average monthly balance for the last 6 months) and
(b) subsequent monthly payments (20% of my previous month’s deposits), as

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Plaintiff also requests in the alternative that the Court “accept Plaintiff’s Special Bond
from his unlimited commercial liability using his exemption to cover the $455.00 court fees.”
(Mot. at 1). Plaintiff appears to rely upon Rule E of the Supplemental Rules of Admiralty for
this proposition. (See ECF No. 54, “Special Bond”). The Court finds Plaintiff’s argument is
inapplicable to this action which does not implicate admiralty law.
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ordered by federal court, until I have paid the full filing fee for this action.
(ECF No. 49). The above quoted language, as well as the language in the Court’s January 13, 2014
Order, tracks the statutory language in 28 U.S.C. § 1915(b) that provides that while a prisoner may
proceed without the prepayment of the filing fee, the prisoner “shall be required to pay the full
amount of a filing fee”. 28 U.S.C. § 1915(b)(1) (emphasis added). Therefore, it is clear not only
that Plaintiff is required by statute to repay his filing fees in this action, Plaintiff explicitly
acknowledged that fact in his affidavit in support of his Application.
To the extent Plaintiff argues that the Court has discretion regarding the collection of fees
or when such collection occurs, such an argument is similarly without merit. The Court has no
discretion regarding its collection of the partial payments as the statute provides that a court “shall
assess” and collect, when funds exist, an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The
statute also states, in pertinent part,
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, the clear language of the statute provides that payments are
forwarded from a prisoner’s account when the amount in the account exceeds ten dollars.
Accordingly, the Court has no discretion in determining the minimum amount that must be present
in a prisoner’s trust account before assessing a monthly payment; the minimum amount is set forth
in 28 U.S.C. § 1915(b)(2).

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Plaintiff has failed to show any reason to alter or amend the January 13, 2014 Order granting
his Application to Proceed without Prepayment of Fees on appeal. Accordingly, the Court DENIES
Plaintiff’s “Motion to Alter/or Amend Judgment” (ECF No. 53).
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 12, 2015
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on March 12, 2015.

s/Deborah Tofil
Case Manager

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