Smith v. Wallace et al
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #8] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $1.98 on or before June 15, 2015 . Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial, without first showing good cause, the Court will dismiss this action without prejudice and without further notice. IT IS FURTHER ORDERED that, consistent with this Memorandum and Order, plaintiff shall file a second amended complaint on or before June 15, 2015. IT IS FURTHER ORDERED that plaintiff's motion for a temporary restraining order [Doc. #14] is DENIED without prejudice. IT IS FURTHER ORDERED that , pursuant to the Court's differentiated case management system, this case is assigned to Track 5B (standard prisoner actions).§W(b( Amended/Supplemental Pleadings due by 6/15/2015. Initial Partial Filing Fee due by 6/15/2015.). Signed by District Judge Stephen N. Limbaugh, Jr on 5/14/2015. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DERRICK RAY SMITH,
Plaintiff,
v.
IAN WALLACE, et. al.,
Defendants.
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No. 1:14-CV-146-SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on the application of Derrick Ray Smith
(registration no. 363686) for leave to commence this action without payment of the
required filing fee [Doc. #8]. Upon consideration of plaintiff=s financial
information, the Court will grant the motion and assess an initial partial filing fee of
$1.98. See 28 U.S.C. ' 1915(a).
In addition, the Court will instruct plaintiff to
file a second amended complaint.1
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The Court appointed counsel for plaintiff on May 13, 2015. As such, the Court
will allow plaintiff to file an amended complaint, as well as any motions for
injunctive relief that counsel deems necessary. In the second amended complaint,
plaintiff should indicate in what capacity he is suing defendants (i.e., individual
capacity, official capacity, or both). Plaintiff is advised that his second amended
complaint will replace his original and amended complaints and will be the only
pleading this Court reviews.
28 U.S.C. ' 1915(b)(1)
Pursuant to 28 U.S.C. ' 1915(b)(1), a prisoner bringing a civil action in forma
pauperis is required to pay the full amount of the filing fee. If the prisoner has
insufficient funds in his prison account to pay the entire fee, the Court must assess
and, when funds exist, collect an initial partial filing fee of 20 percent of the greater
of (1) the average monthly deposits in the prisoner's account; or (2) the average
monthly balance in the prisoner's account for the prior six-month period. See 28
U.S.C. ' 1915(b)(1). After payment of the initial partial filing fee, the prisoner is
required to make monthly payments of 20 percent of the preceding month's income
credited to the prisoner's account. See 28 U.S.C. ' 1915(b)(2). The agency having
custody of the prisoner will forward these monthly payments to the Clerk of Court
each time the amount in the prisoner's account exceeds $10, until the filing fee is
fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. See 28 U.S.C. ' 1915(a)(1),(2). A review of plaintiff's account
statement indicates an average monthly deposit of $9.92, and an average monthly
account balance of $0.00. Plaintiff has insufficient funds to pay the entire filing
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fee. Accordingly, the Court will assess an initial partial filing fee of $1.98, which is
20 percent of plaintiff's average monthly deposit.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #8] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $1.98 on or before June 15, 2015. Plaintiff is instructed to make his
remittance payable to "Clerk, United States District Court," and to include upon it:
(1) his name; (2) his prison registration number; (3) the case number; and (4) that the
remittance is for an original proceeding.
IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial,
without first showing good cause, the Court will dismiss this action without
prejudice and without further notice.
IT IS FURTHER ORDERED that, consistent with this Memorandum and
Order, plaintiff shall file a second amended complaint on or before June 15, 2015.
IT IS FURTHER ORDERED that plaintiff’s motion for a temporary
restraining order [Doc. #14] is DENIED without prejudice.
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IT IS FURTHER ORDERED that, pursuant to the Court's differentiated
case management system, this case is assigned to Track 5B (standard prisoner
actions).
Dated this 14th day of May, 2015.
_________________________________
UNITED STATES DISTRICT JUDGE
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