Al-Mosawi v. Mohr et al
Filing
3
DEFICENCY ORDER: Plf to either pay the $350.00 filing fee or submit application & affifavit to proceed without prepayment with in 28 days from the date of this order; failure to do so will result in dismissal of this action. Signed by Magistrate Judge Mark R. Abel on 1/8/12. (sh1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Mahdi Al-Mosawi,
:
Plaintiff
Gary Mohr, Director, et al.,
Defendants
Civil Action 2:11-cv-1155
:
v.
:
Judge Marbley
:
Magistrate Judge Abel
:
DEFICIENCY ORDER
Plaintiff Mahdi Al-Mosawi, a prisoner at the Chillicothe Correctional Institution,
has filed a complaint alleging that. Although he has moved to proceed in forma pauperis,
he did not sign his application declaring the truth of the financial information provided
and he did not submit a certificate of inmate funds from the prison cashier Plaintiff is
ORDERED to either pay the $350 filing fee or fill out and execute the attached
Application and Affidavit by An Incarcerated Person to Proceed Without Prepayment
of Fees and costs and submit it together with the cashier's statement of his inmate funds
within twenty-eight (28) days of the date of this Order. Failure to do so will result in
this Court dismissing this case for failure to prosecute. McGore v. Wrigglesworth, 114
F.3d 601, 605 (6th Cir. 1997).
s/Mark R. Abel
United States Magistrate Judge
Form IN FORMA PAUPERIS-1 (Rev. 1/6/04, S.D. of Ohio)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
,
Plaintiff(s),
:
-vs-
Case No.
,
Defendant(s),
:
APPLICATION AND AFFIDAVIT BY INCARCERATED PERSON
TO PROCEED WITHOUT PREPAYMENT OF FEES
NOTICE TO PRISONERS REGARDING
PROCEEDINGS IN FORMA PAUPERIS
Prisoner account statement required. A prisoner seeking to bring a civil action or file an appeal
without prepayment of fees or security therefor must submit a certified copy of the trust fund account statement
(or institutional equivalent) for the six-month period immediately preceding the filing of the complaint or the
filing of a notice of appeal. Prison Litigation Reform Act of 1995, Pub. L. No. 104-131, 110 Stat. 1321, §
804(a) (1)-(3), 28 U.S.C. § 1915(a)-(h). The trust fund account statement is obtained from the cashier of the
prison or prisons at which the prisoner was confined during the previous six months. 28 U.S.C. § 1915(a)(2).
Since an appeal is a separate action, another application to proceed without prepayment of fees or security
therefor must be filed when you file a notice of appeal. A prisoner seeking habeas corpus relief is not required
to file a prisoner account statement.
Filing Fees. The current fees for filing a habeas corpus petition, civil complaint, and notice of appeal
are:
• Habeas corpus petition. . . . . . . . . . . .
$5.00
• Civil complaint . . . . . . . . . . . . . . . . $350.00
• Appeal . . . . . . . . . . . . . . . . . . . . . . $455.00
HABEAS CORPUS PETITIONS
A prisoner seeking habeas corpus relief must file an affidavit to proceed without prepayment of fees.
If the prisoner does not have sufficient funds in his prison account or elsewhere to pay the $5.00 filing fee, the
Court will grant him in forma pauperis status and waive the entire fee. The prisoner may then proceed with
his action without the prepayment of the filing fee. 28 U.S.C. § 1915(a)(1).
CIVIL COMPLAINTS AND APPEALS
Prisoners must pay the full filing fee. If a prisoner brings a civil action in forma pauperis, the prisoner
shall be required to pay the full amount of the filing fee. 28 U.S.C. § 1915(b)(1).
Initial partial filing fee. The Court will assess and, when funds exist, collect, as partial payment of the
filing fee, an initial partial filing fee of 20 percent of the greater of:
(1)
the average monthly deposits to the prisoner's account; or
(2)
the average monthly balance in the prisoner's account for the six-month period
immediately preceding the filing of the complaint.
28 U.S.C. § 1915(b)(1). No matter how little money is in the prisoner’s account, prison officials must forward
payments to the Court until the initial partial filing is paid. In re Prison Litigation Reform Act, Administrative
Order No. 97-01, Part II(C), 105 F.3d 1131, 1133 (6th Cir.1997).
Monthly payments. 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
cashier of the prison 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).
If you cannot pay the initial partial filing fee. In no event shall a prisoner be prohibited from
bringing a civil action for the reason that the prisoner has no assets and no means by which to pay the initial
partial filing fee. 28 U.S.C. §1915(b)(4).
Example of how the filing fee will be assessed and collected. If Prisoner A had an average monthly
balance in his/her prisoner's account for the previous six months of $2 and average monthly deposits of $20,
then his/her initial partial filing fee would be $4, because the greater of his/her average monthly balance ($2)
and average monthly deposits ($20) is $20 and 20% of $20 is $4:
Average monthly deposit x 20%
$20 x .20
=
=
Initial partial filing fee
$4.00
The Court's Order granting leave to proceed without prepayment of fees or security therefor would
require the Prison Cashier to forward $4 to the Clerk of Court. No matter how little money is in Prisoner A’s
account when the Order is issued, prison officials must forward payments to the Court until the entire $4 initial
partial filing is paid. In re Prison Litigation Reform Act, Administrative Order No. 97-01, Part II(C), 105 F.3d
at 1133.
The Court's Order would also require the Cashier to collect each month a monthly payment of 20%
of the preceding month's income credited to Prisoner A's account. If in the first month following the payment
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of the initial partial filing fee Prisoner A received $20 in State pay and no other monies were deposited in his
account, his monthly payment would be $4 ($20 x .20 = $4). If in the second month following the payment
of the initial partial filing fee Prisoner A received $20 in State pay and $50 from his family, his monthly
payment would be $14 ($70 x .20 = $14). Every month the deposits in Prisoner A's account exceeded $10,
the prison Cashier would assess, collect, and forward to the Clerk of Court a monthly payment of 20% of that
month's total deposits. Each month the Cashier would continue to assess and collect monthly payments until
the entire filing fee is paid.
Filing a complaint waives any objection to the Court assessing the fee. By filing the complaint,
a prisoner waives any objection to the fee assessment by the Court. Furthermore, the prisoner waives any
objection to the withdrawal of funds from the trust account by prison officials to pay the prisoner’s court fees
and costs. Prisoners have a duty to cooperate during the litigation. In re Prison Litigation Reform Act,
Administrative Order No. 97-01, Part II, 105 F.3d at 1132.
Administrative remedies. Prisoners must exhaust available administrative remedies before bringing a civil
action in federal court under 42 U.S.C. §1983 or any other federal law. The failure to exhaust such administrative
remedies will result in the dismissal of the civil action. 42 U.S.C. §1997e(a). In most instances, prisoners must
exhaust the state formal grievance procedure set forth in Ohio Admin. Code § 5120-9-31, which includes filing a
formal grievance with the inspector of institutional services and appealing to the Chief Inspector of the Ohio
Department of Rehabilitation and Correction, prior to filing a complaint in federal court.
Prisoners seeking federal habeas corpus relief must first exhaust their available state court remedies under
28 U.S.C. 2254 (b).
Court required to dismiss complaints which are frivolous, malicious, or fail to state a claim. The
Court is required to conduct an initial screening of the complaint and to dismiss any action brought by a prisoner
confined in any jail, prison, or other correctional facility with respect to prison conditions under 42 U.S.C. §1983
or any other federal law if the Court is satisfied that the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 42 U.S.C.
§1997e(c)(1); 28 U.S.C. §§ 1915A and 1915(e)(2).
Even if the complaint is dismissed, you must pay the entire filing fee. Dismissal of a civil action at
any stage of the proceedings for any reason, including dismissals for failure to exhaust administrative remedies or
dismissals on the basis that the claim is frivolous, malicious, or fails to state a claim upon which relief can be
granted, will not release the prisoner from the obligation to pay the total filing fee. 28 U.S.C. § 1915(b)(1). Even
if the Court dismisses the complaint the same day leave to proceed in forma pauperis is granted or a prisoner
voluntarily dismisses a complaint (or files an appeal), he or she has to pay the required filing fees. In re Prison
Litigation Reform Act, Administrative Order No. 97-01, Part III, 105 F.3d at 1133-34.
If a federal court has dismissed your complaints or appeals as frivolous, malicious or failing to state
a claim three times in the past, you cannot proceed in forma pauperis in a new case absent a threat of
imminent, serious physical injury. A prisoner who has on three or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, cannot proceed in forma
pauperis unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
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AFFIDAVIT
I, _________________________, declare that I am the (check appropriate box):
petitioner/plaintiff/movant
other
in the above-entitled proceeding; that in support of my request to proceed without prepayment of the full filing fee
or costs under 28 U.S.C. § 1915, I declare that I am unable to prepay the full filing fee or the costs of these
proceedings and that I am entitled to the relief sought in the complaint/petition/motion.
In support of this application, I answer the following questions under the penalty of perjury:
1.
Are you currently incarcerated?
Yes
No
If "Yes", state the place of incarceration: ______________________________________
(If "No," this is the wrong form for you. You should request the Non-Prisoner Declaration in Support of Request
to Proceed In Forma Pauperis.)
2.
Do you have a work, program, status assignment or other circumstances which causes you to be paid by the prison,
jail, or other custodial institution?
Yes
No
If "Yes", state the amount credited to you each month: $____________________/month
3.
In the past 12 months have you received any money from the following sources? If so, state the total amount
received.
a.
Business, profession or
other self-employment
Yes
No $__________
Rent payments, interest
or dividends
Yes
No $__________
Pensions, annuities or
life insurance payments
Yes
No $__________
Disability or workers
compensation payments
Yes
No $__________
e.
Gifts or inheritances
Yes
No $__________
f.
Any other sources
Yes
No $__________
If the answer to any of the above is "Yes", describe each source of money and state the amount received and what
you expect you will continue to receive.
4.
Do you have any cash or checking or savings accounts outside the prison?
Amount
b.
c.
d.
4
Yes
5.
No
Do you have a secondary savings account, such as a certificate of deposit or a savings bond, which is recorded by
the prison cashier?
Yes
6.
Amount $_________
No
Amount $_________
Do you own any assets, including real estate, stocks, bonds, securities, other financial instruments, automobiles or
other valuable property?
Yes
No
If "Yes", describe each asset and state its value.
ASSET
VALUE
Autos ___________ ________________
$__________
(Make/model/year)___ _____________
Stocks ___________________________
$__________
____________________________
$__________
Bonds ___________________________
$__________
Notes ____________________________
$__________
Real Estate ________________________
$__________
$_______________ (mortgage)
Other
7.
$
Have you on three or more prior occasions, while incarcerated or detained in any prison, jail or other facility,
brought an action in a court of the United States that was dismissed on the grounds that it was frivolous, malicious,
or failed to state a claim upon which relief may be granted?
Yes
No
If "Yes," list the dismissals:
Date Dismissed
Case Name
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Case No.
Date Dismissed
Case Name
Case No.
DECLARATION UNDER PENALTY OF PERJURY
I declare under penalty of perjury that I have submitted above a complete statement of all the
assets I possess and that all of the information is true and correct.
I understand that my signature below authorizes the institution of incarceration to forward from
my account to the Clerk of the Court any initial partial filing fee assessed by the Court in the amount of 20 percent
of the greater of the average monthly deposits to my prison account or the average monthly balance in my prison
account for the six-month period immediately preceding the filing of the complaint. Thereafter, I authorize the
institution of incarceration to forward monthly payments of 20 percent of my preceding month's income credited
to my prison account until I have paid the full amount of the filing fee.
Date:
Signature of
Applicant
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Have the institution fill out the Certificate portion of this affidavit and attach a certified copy of your
prison trust fund account statement from the institution(s) of your incarceration showing at least the past
six months' transactions.
CERTIFICATE
(To be completed by the institution of incarceration)
on account to his/her
I certify that the applicant named herein has the sum of $
credit at (name of institution)
. I further certify that during the
past six months the applicant's average monthly balance was $
deposits were $
and the applicant's average monthly
. I have attached a certified copy of the applicant's prison trust fund account statement
showing at least the past six months' transactions.
I further certify that the applicant does/does not have a secondary savings account(s), such as a
certificate of deposit or a savings bond. The secondary account(s) balance is $
Date:
Signature of Authorized Officer
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.
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