Tomlin v. Sanchez et al
ORDER DENYING EXCUSAL OF INITIAL PARTIAL PAYMENT by Magistrate Judge Gregory B. Wormuth. Payment of $24.15, or a pleading showing cause why payment should be excused is due by February 8, 2018. (bni)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civ. No. 17‐1084 WJ/GBW
DENISE SANCHEZ, et al.,
ORDER DENYING EXCUSAL OF INITIAL PARTIAL PAYMENT
This matter comes before the Court on a letter from Plaintiff. Doc. 7. Plaintiff’s
letter asks the Court to excuse submission of the $24.15 initial partial payment assessed
by the Court in its December 6, 2017 Order Granting Leave To Proceed Pursuant to 28
U.S.C. § 1915(b). Id.; see doc. 6. For the reasons explained below, the Court DENIES
Plaintiff’s request to excuse the initial partial payment.
On November 30, 2017, Plaintiff submitted a Financial Certificate and a Resident
Account Summary, which reflected that during the past four months of her
incarceration, she received average monthly deposits in her inmate account in the
amount of $120.74. Doc. 5. Based on this financial information, the Court granted
Plaintiff’s Application To Proceed In District Court Without Prepaying Fees or Costs,
doc. 2, and ordered Plaintiff to submit an initial partial payment in the amount of $24.15.
Doc. 6. See 28 U.S.C. § 1915(b)(1)(A) (“The Court shall assess and, when funds exist,
collect, as a partial payment of any court fees required by law, an initial partial filing fee
of 20 percent of . . . the average monthly deposits in the prisoner’s account”).
The fee provisions of 28 U.S.C. § 1915 “are intended to reduce frivolous prisoner
litigation by making all prisoners seeking to bring lawsuits or appeals feel the deterrent
effect created by liability for filing fees.” Cosby v. Meadors, 351 F.3d 1324, 1327 (10th Cir.
2003) (internal quotations and citation omitted). Indeed, the statute is “designed to
require the prisoner to bear some marginal cost for each legal activity.” Id. (internal
quotations and citation omitted). Notably, Plaintiff does not contend that she lacks
sufficient available funds to pay the initial partial payment. Rather, she states that she
needs her available funds to purchase hygiene products and medication from the prison
commissary. Doc. 7. However, requiring an indigent prisoner to choose between the
purchase of items from the prison commissary and the pursuit of a civil action:
does not deny access to the courts; it merely places the
indigent prisoner in a position similar to that faced by those
whose basic costs of living are not paid by the state . . . . If a
prisoner determines that his funds are better spent on other
items rather than filing a civil rights suit, he has
demonstrated an implied evaluation of that suit that the
courts should be entitled to honor.
Shabazz v. Parsons, 127 F.3d 1246, 1249 (10th Cir. 1997) (internal quotations omitted).
Therefore, the Court will not excuse the initial partial payment so that Plaintiff may
purchase items at the prison commissary.
Plaintiff also asks the Court to excuse the initial partial payment because the
income in her inmate account was deposited by a “sympathetic donor.” Doc. 7. The
Tenth Circuit has held that the calculation of the initial partial payment must be based
on “all deposits to the prisoner’s inmate account, whether the deposit be earned income,
a gift, or otherwise.” Cosby, 351 F.3d at 1326. Therefore, the Court DENIES Plaintiff’s
request to excuse the initial partial payment.1
It is further ORDERED that Plaintiff must submit the initial partial payment of
$24.15, or show cause why the payment should be excused, within thirty (30) days of the
date of entry of this order. Failure to comply may result in the dismissal of Plaintiff’s
civil rights complaint without prejudice without further notice. See id. at 1326 (“[I]f a
court order requires partial payments, the Federal Rules of Civil Procedure allow a
district court to dismiss the action for failure to comply with the order. See Fed. R. Civ. P.
IT IS SO ORDERED.
GREGORY B. WORMUTH
United States Magistrate Judge
The Court notes that Plaintiff’s letter asks the Court to excuse “the partial payments of [$]24.15 and
$120.74.” Doc. 7. However, the Court has not ordered a payment of $120.74. Rather, that amount
reflects the average monthly deposits in her inmate account for the six‐month period preceding the filing
of her Complaint. See doc. 6 at 2. Plaintiff is not required to pay that amount. Instead, Plaintiff is
required to submit an initial partial payment of $24.15, followed by monthly payments of twenty percent
(20%) of the preceding month’s income credited to her account, until she has paid the entire $350 filing fee.
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