Chapman v. Sosa-Gayton et al

Filing 15

MEMORANDUM AND ORDER - Chapman must show cause within 30 days from the date of this Memorandum and Order why this case should not be dismissed for his failure to pay the initial partial filing fee or seek an extension of time in which to do so. Any response must include either a request for an extension of time in which to pay the initial partial filing fee or a declaration under penalty of perjury that Chapman directed prison officials to remit payment of the initial partial filing fee and the y failed or were unable to adhere to his request. The clerk's office is directed to set the following pro se case management deadline: November 10, 2014: Check for response to show cause order. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(GJG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLIE JOE CHAPMAN,

)
)
Plaintiff,
)
)
v.
)
)
YVONNE D. SOSA-GAYTON, TIM
)
BURNS, DOUGLAS COUNTY PUBLIC )
DEFENDERS OFFICE, and JUDGE
)
CONIGLIA,
)
)
Defendants.
)
______________________________)

4:14CV3141

MEMORANDUM AND ORDER

This matter is before the Court on its own motion.
Plaintiff Billie Joe Chapman must show cause within 30 days why
this case should not be dismissed for his failure to pay an
initial partial filing fee or seek an extension of time in which
to do so.
I.

BACKGROUND

On July 7, 2014, Chapman, a prisoner incarcerated at
the Newton Correctional Facility in Newton, Iowa, filed his
complaint (Filing No. 1) in this matter.

Thereafter, on July 31,

2014, Chapman filed a motion seeking leave to proceed in forma
pauperis (Filing No. 7).

The Court granted Chapman’s motion on

August 4, 2014, and ordered him to pay an initial partial filing
fee in the amount of $5.82.

Chapman was ordered to pay an

initial partial filing fee in the amount of $5.82 because his
inmate trust account statement, sent to the Court by the

financial officer at Newton Correctional Facility, reflected that
the average deposits to Chapman’s account for the six months
preceding the filing of the complaint was $29.10.

See 28 U.S.C.

§ 1915(b)(1) (requiring prisoners to 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).
II.

DISCUSSION

Chapman argues that he should not have to pay the
initial partial filing fee because “the Prison takes 100% of all
monies with the claim that Plaintiff owes the prison by debt.”
(Filing No. 12 at CM/ECF p. 1.)

Chapman further argues that

prison officials have “misled and lied to this court” by
indicating that Chapman has a “[p]ositive balance.”
14 at CM/ECF p. 1.)

(Filing No.

However, the trust account certificates

submitted by the financial officers at Chapman’s institution do
not reflect, as Chapman suggests, that Chapman has a positive
account balance.

Rather, these certificates (Filing Nos. 5 and

11) merely reflect that the average monthly deposits to Chapman’s
account for the six months preceding the filing of the complaint
is $29.10.

That is not to say that Chapman has ready and easy

access to this deposited money.

Indeed, if the number of cases
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Chapman has filed in the federal district courts is any
indication of how much money is charged to his trust account on a
monthly basis, then it is apparent why Chapman has a negative
account balance.

In the last five years alone, Chapman has filed

12 civil rights cases in the federal district courts,1 as well as
numerous habeas corpus actions.

See 28 U.S.C. § 1915(b)(1)

(requiring prisoners to pay the full amount of their filing
fees).
While it may be true that Chapman’s average monthly
account balance is zero, pursuant to 28 U.S.C. § 1915(b)(1),
Chapman must pay an initial partial filing fee in the amount of
20 percent of the greater of plaintiff’s average monthly deposits
or average monthly account balance for the six months preceding
the filing of the complaint.

The Court determined that Chapman’s

initial partial filing fee is $5.82, and ordered him to pay it by
September 4, 2014.

He did not do so.

In addition, he did not

request an extension of time in which to pay the initial partial

1

See District of Nebraska Case Numbers:
8:11-CV-00145-JFB-PRSE; 8:12-CV-00370-RGK-CRZ;
4:13-CV-03205-JMG-PRSE; and 4:14-CV-03141-LES-PRSE. See Southern
District of Iowa Case Numbers: 4:11-CV-00107-RP-RAW;
4:13-CV-00432-SMR-CFB; 4:14-CV-00134-REL; 4:14-CV-00069-REL; and
4:14-CV-00065-REL. See Northern District of Iowa Case Numbers:
1:14-CV-00109-EJM; 1:14-CV-00093-EJM; and 1:14-CV-00028-EJM.

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filing fee, despite being told on at least two occasions that he
may do so.
IT IS ORDERED:
1.

Chapman must show cause within 30 days from the

date of this Memorandum and Order why this case should not be
dismissed for his failure to pay the initial partial filing fee
or seek an extension of time in which to do so.

Any response

must include either a request for an extension of time in which
to pay the initial partial filing fee or a declaration under
penalty of perjury that Chapman directed prison officials to
remit payment of the initial partial filing fee and they failed
or were unable to adhere to his request.

See Taylor v. Cassady,

--- Fed. App’x. ----, 2014 WL 4378388 (8th Cir. Sept. 5, 2014)
(holding district court abused its discretion by dismissing case
without first taking steps to determine whether prisonerplaintiff’s failure to pay the initial partial filing fee “was
caused by circumstances beyond his control, such as prison
officials’ failure to adhere to his request to remit payment
using funds from his account”).

Failure to comply as directed

will result in dismissal of this case for want of prosecution.

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2.

The clerk’s office is directed to set the

following pro se case management deadline: November 10, 2014:
Check for response to show cause order.
DATED this 7th day of October, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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