Ursery v. The Federal Drug Enforcement Administration (DEA)
MEMORANDUM AND ORDER re: 2 ORDERED that plaintiff's motion to proceed in formapauperis [Doc. #2] is GRANTED. FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $13.75 within thirty (30) days of the date of this Order. FU RTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint. ( Initial Partial Filing Fee due by 2/22/2013.). Signed by District Judge Henry E. Autrey on 1/22/13. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
THE FEDERAL DRUG
ENFORCEMENT ADMINISTRATION )
No. 4:12CV1911 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of (registration no. 151473),
an inmate at Southeast Correctional Center, for leave to commence this action without
payment of the required filing fee [Doc. #2]. For the reasons stated below, the Court
finds that plaintiff does not have sufficient funds to pay the entire filing fee and will
assess an initial partial filing fee of $13.75.
See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint, the Court will order the Clerk to issue
process or cause process to be issued on the complaint.
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 or her 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.
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. 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. A review of plaintiff’s account indicates an average monthly deposit of
$68.75, and an average monthly balance of $2.14. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $13.75, which is 20 percent of plaintiff’s average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief against a defendant who is
immune from such relief. An action is frivolous if “it lacks an arguable basis in either
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to
state a claim upon which relief can be granted if it does not plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955, 1974 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the
complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court must also weigh all factual allegations in favor of the plaintiff,
unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 3233 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff, presumably, brings this action pursuant to Rule 41(g) of the Federal
Rules of Criminal Procedure.1 A review of the allegations indication that plaintiff has
sufficiently asserted claims regarding the return of seized property to which defendant
should reply. See Thompson v. Covington, 47 F.3d 974 (8th Cir. 1995).
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
Plaintiff mistakenly refers to it as Rule 41(e) of the Federal Rules of Civil
Procedure. The Court, however, recognizes that plaintiff is attempting to pursue
an action for the return of seized property.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $13.75 within thirty (30) days of the date of this Order. 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
filing fee within thirty (30) days of the date of this Order, then this case will be
dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint.
Dated this 22nd day of January, 2013.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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