Weeks v. State of Mississippi et al

Filing 43

ORDER granting in part and denying in part 31 Motion for Leave to Appeal in forma pauperis; denying 32 Motion to Appoint Counsel; denying 36 Motion for Declaratory Judgment; granting in part and denying in part 38 Motion for Leave to Appe al in forma pauperis; denying 39 Motion to Appoint Counsel; denying 40 Motion for Hearing. A copy of NEF and Order mailed to petitioner at address listed on docket sheet. A copy of Order mailed to Missouri Department of Corrections, Inmate Banking. Signed by District Judge Carlton W. Reeves on 6/14/2016. (EJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RUBIN R. WEEKS

PETITIONER

V.

CAUSE NO. 3:15-CV-283-CWR-FKB

STATE OF MISSISSIPPI and
MISSISSIPPI DEPARTMENT OF
CORRECTIONS

RESPONDENTS

ORDER
Before this Court are several motions filed by petitioner, two motions for leave to appeal
in forma pauperis, Docket Nos. 31 and 38, two motions to appoint counsel, Docket Nos. 32 and
39, a motion for declaratory judgment, Docket No. 36, and a motion for evidentiary hearing,
Docket No. 40. The state filed a response to the motion for an evidentiary hearing, Docket No.
41, and to the motion for declaratory judgment, Docket No. 42. Having reviewed the parties’
briefing and applicable law, the Court is ready to rule.
Petitioner’s motions for leave to appeal in forma pauperis are granted in part and denied
in part. Petitioner’s motions to appoint counsel, motion for declaratory judgment and motion for
an evidentiary hearing are denied for lack of jurisdiction.
I.

Motions for Leave to Appeal In Forma Pauperis

On March 31, 2016, petitioner filed a notice of appeal regarding this Court’s judgment,
Docket No. 30. He also filed a motion for leave to appeal in forma pauperis. Docket No. 31.
Because the motion did not include necessary information regarding petitioner’s financial ability
to pay, the Court ordered him to produce a copy of his inmate trust account statement. Docket
No. 33. Petitioner submitted this information, Docket No. 35, and filed another motion for leave
to appeal in forma pauperis, Docket No. 38.

Pursuant to Federal Rules of Appellate Procedure Rule 24, petitioner was required to file
the motion to for leave to appeal in forma pauperis in district court. Under federal law, a court
may allow an indigent litigant to proceed with a suit or appeal without prepayment of fees. See
28 U.S.C. § 1915(a). That law, however, places more stringent requirements upon a prisoner
seeking IFP status. The relevant conditions are reproduced here:
(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an
appeal in forma pauperis, the prisoner shall be required to pay the full amount of
a filing fee. The court shall assess and, when funds exist, collect, as a partial
payment of any court fees required by law, an initial partial filing fee of 20
percent of the greater of—
(A) the average monthly deposits to the prisoner’s account; or
(B) the average monthly balance in the prisoner’s account for the 6-month
period immediately preceding the filing of the complaint or notice of
appeal.
(2) After 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.
Id. § 1915(b).
In this case, Weeks submitted a copy of his inmate trust account statement covering
transactions from November 2015 to early May 2016. During that period of time, Weeks
received fairly regular deposits to his inmate trust account. See Docket No. 35, at 5-9. His
account statement does show he has some income.1 Based on the inmate trust account statement,
Weeks received deposits of at least $200.00 each month for the last six months. The inmate trust
account statement indicates that Weeks may not be able to pay the full filing fee up front, but he
does have the means to make monthly installments towards the filing fee. The Court calculated
the six-month average deposit amount as $273.50 and the six-month average balance amount as

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Income” means “whatever sums enter a prison trust account, disregarding the source.” Lucien v. DeTella, 141
F.3d 773, 776 (7th Cir. 1998).

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3.8 cents. Pursuant to 28 U.S.C. § 1915(b), the “greater” of the two options available for the
initial partial filing fee is $273.50. Accordingly, twenty percent of that amount that Weeks is
required to pay as an initial partial filing fee is $54.70. It is hereby ordered that within 20 days
from the entry of this order, petitioner must submit the initial partial filing fee of $54.70 to this
Court. Petitioner’s payment shall be sent to the Clerk of the Court, 501 E. Court Street, Jackson,
Mississippi 39201, accompanied by a statement that the money is being submitted as partial
payment of the appeal filing fee for civil action number (No. 3:15cv283) and appeal number (No.
16-60196), on behalf of petitioner, Rubin Rurie Weeks.
In addition to the initial partial filing fee, Weeks must make monthly payments of 20% of
the preceding month’s income credited to his inmate account until the total appeal filing fee of
$505.00 is paid in full. The prison where Weeks is incarcerated is required by law, when his
inmate account exceeds the amount of $10.00 to forward monthly payments with petitioner’s
name, civil action number (No. 3:15cv283) and appeal number (No. 16-60196) written on the
payment to the Clerk of the Court, 501 E. Court Street, Ste. 2.500, Jackson, Mississippi 39201,
with each payment being a sum which equals 20% of the preceding month’s income credited to
Weeks’s inmate account. Weeks is currently in the custody of the Missouri Department of
Corrections. Accordingly, a copy of this Order will be mailed to the Missouri Department of
Corrections Inmate Banking, P.O. Box 1609, Jefferson City, Missouri 65102.
II.

All Other Motions

Petitioner has filed four other motions that are pending before this Court. Docket Nos. 32,
36, 39, and 40. Petitioner filed two motions to appoint counsel, Docket Nos. 32 and 39. The
Magistrate Judge dismissed petitioner’s previous motion to appoint counsel as moot based on the
recommendation that his action be dismissed for lack of jurisdiction. Docket No. 23. Petitioner

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filed a motion pursuant to Rule 60 or alternatively for declaratory judgment. Docket No. 36. He
also filed a motion for an evidentiary hearing. Docket No. 42.
The filing of the notice of appeal, Docket No. 30, divested this court of jurisdiction
“except to take action in aid of the appeal until the case is remanded to it by the appellate court,
to to correct clerical errors under Rule 60(a).” Travelers Ins. Co. v. Liljeberg Enters., 38 F.3d
1404, 1407 (5th Cir. 1994) (external citation omitted). Since the remaining motions were filed
after petitioner filed his notice of appeal, this Court is without jurisdiction to take any action on
them. Therefore, petitioner’s two motions to appoint counsel, Docket No. 32 and 39, motion for
declaratory judgment, Docket No. 36, and motion for evidentiary hearing, Docket No. 40, are
denied based on the Court’s lack of jurisdiction due to the pending appeal.
III.

Conclusion

Accordingly, petitioner’s motions for leave to appeal in forma pauperis are granted in
part and denied in part, and petitioner’s motions to appoint counsel, motion for declaratory
judgment, and motion for evidentiary hearing are denied for lack of jurisdiction based on his
pending appeal.
SO ORDERED, this the 14th day of June, 2016.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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