Calderon v. America et al

Filing 15

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed in Forma Pauperis (Filing No. 12 ) is granted. Plaintiff shall pay the remaining balance of the initial partial filing fee by April 22, 2013, unless an enlargement of time is g ranted in response to a written motion. The remaining balance is $17.64. If the remaining balance of the initial partial filing fee is not received by the specified deadline, this case will be dismissed. The Clerk of the court is directed to send a copy of this order to the appropriate official at Plaintiffs institution. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: April 22, 2013: remaining balance of initial partial filing fee payment due. Plaintiffs Motions for Preliminary Injunction, Appointment of Counsel, and Summons are denied (Filing Nos. 2 , 5 , and 8 ). Ordered by Chief Judge Laurie Smith Camp. (Copies mailed to defendants)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RAUL CALDERON,
Plaintiff,
v.
AMERICA, et al.,
Defendants.

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CASE NO. 4:13CV3060

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion for Leave to Proceed in Forma
Pauperis (“IFP”). (Filing No. 12.) Also pending are Plaintiff’s Motions for Preliminary
Injunction, Appointment of Counsel, and Summons. (Filing Nos. 2, 5, and 8.) The court
has received a certified copy of Plaintiff’s trust account information. (Filing No. 13.)
Plaintiff is permitted to proceed IFP.
A.

Motion for Leave to Proceed IFP

Pursuant to the Prison Litigation Reform Act, a prisoner plaintiff is required to pay
the full amount of the court’s $350.00 filing fee by making monthly payments to the court,
even if the prisoner is proceeding IFP. 28 U.S.C. § 1915(b). “[T]he PLRA makes prisoners
responsible for their filing fees the moment the prisoner brings a civil action or files an
appeal.” In re Tyler, 110 F.3d at 529-30 (8th Cir. 1997); Jackson v. N.P. Dodge Realty Co.,
173 F. Supp. 2d 951 (D. Neb. 2001).
Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff must pay an initial partial filing fee in
the amount of 20 percent of the greater of Plaintiff’s average monthly account balance or
average monthly deposits for the six months preceding the filing of the complaint.
Accordingly, the court finds that the initial partial filing fee is $71.44, based on an average
monthly account balance of $357.23. Plaintiff included a payment of $53.80 with his
Motion for Leave to Proceed IFP. Therefore, the remaining balance of Plaintiff’s initial
partial filing fee is $17.64. Plaintiff must pay this remaining balance of the initial partial

filing fee by April 22, 2013. If the court does not receive payment by this deadline, this
matter will be dismissed. Plaintiff may request an extension of time if needed.
In addition to the initial partial filing fee, Plaintiff must “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 statute places the burden on the prisoner’s institution to collect the
additional monthly payments and forward them to the Court as follows:
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.
28 U.S.C. § 1915(b)(2). Therefore, after payment in full of the initial partial filing fee, the
remaining installments shall be collected pursuant to this procedure.
The Clerk of the court shall send a copy of this Memorandum and Order to the
appropriate financial official at Plaintiff’s institution. Plaintiff will remain responsible for the
entire filing fee, as long as he is a prisoner, even if the case is dismissed at some later
time. See In re Tyler, 110 F.3d at 529-30; Jackson, 173 F. Supp. 2d at 951.
B.

Motion for Preliminary Injunction

Plaintiff has filed a Motion for Preliminary Injunction seeking immediate release from
incarceration because, among other reasons, “America is trying to kill [him].” (Filing No.
2.) Plaintiff asks that he be released and extradited to another nation so that he can seek
political asylum there. (Id.)
The standard set forth in Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109,
112–14 (8th Cir.1981), applies to a request for preliminary injunctive relief. The factors to
consider when determining whether to grant preliminary relief in a federal setting are:

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(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest.
Id. at 113. The burden of establishing the necessity of a preliminary injunction is on the
movant. Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994). Here,
Plaintiff has not met this burden. The court has reviewed Plaintiff’s complaint and his
motion for preliminary injunction. Based on this review, the court finds that Plaintiff’s
request for a preliminary injunction should be denied because of the improbability that
Plaintiff will succeed on the merits of his claims. Specifically, Plaintiff’s allegations are, for
the most part, implausible and nonsensical. (See, e.g., Filing No. 1 at CM/ECF p. 8
(“Defendant George W. Bush knew Nebraska wanted to beat me beyond human
reco[g]nition (Isaiah 53) or paral[y]ze me (Isaiah 50) but conspired and or left me
Hostage . . .”).)
C.

Motion for Appointment of Counsel

Plaintiff requests the appointment of counsel. The court cannot routinely appoint
counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit
Court of Appeals explained that “[i]ndigent civil litigants do not have a constitutional or
statutory right to appointed counsel. . . . The trial court has broad discretion to decide
whether both the plaintiff and the court will benefit from the appointment of counsel.” Id.
(quotation and citation omitted). No such benefit is apparent here. Therefore, Plaintiff’s
request for the appointment of counsel will be denied.
D.

Motion for Summons

Plaintiff has only paid a portion of the initial partial filing fee in this matter. This case
will not proceed until he pays the entire initial partial filing fee. Therefore, the court will
deny Plaintiff’s Motion for Summons.
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IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion for Leave to Proceed in Forma Pauperis (Filing No. 12) is
granted;

2.

Plaintiff shall pay the remaining balance of the initial partial filing fee by April
22, 2013, unless an enlargement of time is granted in response to a written
motion. The remaining balance is $17.64. If the remaining balance of the
initial partial filing fee is not received by the specified deadline, this case will
be dismissed;

3.

After payment of the initial partial filing fee, Plaintiff’s institution shall collect
the additional monthly payments in the manner set forth in 28 U.S.C.
§ 1915(b)(2), quoted above, and shall forward those installments to the court;

4.

The Clerk of the court is directed to send a copy of this order to the
appropriate official at Plaintiff’s institution;

5.

The Clerk of the court is directed to set a pro se case management deadline
in this case using the following text: April 22, 2013: remaining balance of
initial partial filing fee payment due;

6.

Plaintiff shall keep the court informed of his current address at all times.
Plaintiff is bound by the Federal Rules of Civil Procedure and by the court’s
Local Rules while this case is pending; and

7.

Plaintiff’s Motions for Preliminary Injunction, Appointment of Counsel, and
Summons are denied (Filing Nos. 2, 5, and 8).

DATED this 21st day of March, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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