Hamilton v. Russell et al

Filing 9

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. # 2 ] is granted. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $1.75 within thirty (30) days from 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, without first showing good cause, the Court will dismiss this action without prejudice. IT IS FUR THER ORDERED that plaintiff's motion to file an amended complaint [Doc. # 4 ] is granted. Plaintiff's amended complaint is due on or before July 21, 2014. IT IS FURTHER ORDERED that plaintiff's pro se "Emergency Motion for Food&q uot; [Doc. # 5 ] is denied without prejudice. ( Initial Partial Filing Fee due by 7/18/2014.) IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case management system, this case is assigned to Track 5B (standard prisoner actions).. Signed by District Judge Carol E. Jackson on 6/18/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES J. HAMILTON,
Plaintiff,
v.
TERRY RUSSELL, et al.,
Defendants.

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No. 4:14-CV-766-CEJ

MEMORANDUM AND ORDER
This matter is before the Court upon the application of James J. Hamilton
(registration no. 182603) for leave to commence this action without payment of the
required filing fee. Upon consideration of plaintiff=s financial information, the
Court will grant the motion and will assess an initial partial filing fee of $1.75. See
28 U.S.C. ' 1915(a).

In addition, the Court will grant plaintiff's motion to file an

amended complaint1 and will deny without prejudice his pro se "Emergency Motion
for Food" [Doc. #5].

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The Court appointed counsel for plaintiff on June 17, 2014 [Doc. #7]. 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 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 amended complaint
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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 $8.75, and an average monthly
account balance of $0.00. Plaintiff has insufficient funds to pay the entire filing
will replace his original complaint and supplement and will be the only complaint
this Court reviews.
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fee. Accordingly, the Court will assess an initial partial filing fee of $1.75, 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. #2] is granted.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $1.75 within thirty (30) days from 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, without first showing good cause, the Court will
dismiss this action without prejudice.
IT IS FURTHER ORDERED that plaintiff's motion to file an amended
complaint [Doc. #4] is granted. Plaintiff's amended complaint is due on or before
July 21, 2014.
IT IS FURTHER ORDERED that plaintiff's pro se "Emergency Motion for
Food" [Doc. #5] 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 18th day of June, 2014.

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UNITED STATES DISTRICT JUDGE

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