McGlone II v. Ross Correctional Institution et al

Filing 8

ORDER GRANTING 1 and 5 Motions for Leave to Proceed in forma pauperis, VACATING 4 Report and Recommendations and ORDERING the collection of the full filing fee of $350.00 pursuant to the Prison Litigation Reform Act (PLRA) and the terms set forth in this Order. Signed by Magistrate Judge Stephanie K. Bowman on 4/12/13. (mtw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JERRY L. MCGLONE, II,
Plaintiff,

Case No. 1:13-cv-126
Dlott, J.
Bowman, M.J.

vs
WARREN CORRECTIONAL INSTITUTION,
et al.,
Defendants.

____________________
ORDER GRANTING PRISONER IN FORMA
PAUPERIS STATUS AND ORDERING THE
COLLECTION OF THE FULL FILING FEE
____________________
Plaintiff is an inmate in state custody at the Warren Correctional Institution in Lebanon,
Ohio. On February 25, 2013, the undersigned issued a Deficiency Order, requiring plaintiff to
either pay the filing fee or submit an in form pauperis application, which includes a certified
copy of his prison trust fund account statement for the preceding six-month period completed
and signed by the prison cashier, within thirty days. (Doc. 2). Plaintiff failed to comply with the
Deficiency Order within the requisite 30-day period.

Therefore, on April 2, 2013, the

undersigned issued a Report and Recommendation to dismiss the case for lack of prosecution.
(Doc. 4). One day later, on April 3, 2013, plaintiff complied with the Deficiency Order by filing
an in forma pauperis application containing the prison cashier’s certification. (Doc. 5). On
April 4, 2013, plaintiff also filed objections to the April 2, 2013 Report and Recommendation,
arguing that delays by the prison cashier caused him to miss the 30-day filing deadline set in the
Deficiency Order. (Doc. 6). Given that plaintiff has now complied with the Deficiency Order,
and in light of plaintiff’s explanation for his delay in filing, the undersigned hereby VACATES

the April 2, 2013 Report and Recommendation to dismiss the case for lack of prosecution. This
matter is now before the Court for ruling on plaintiff’s motion for leave to proceed in forma
pauperis in connection with his civil complaint, as supplemented by plaintiff in accordance with
the February 25, 2013 Deficiency Order. (Docs. 1, 5; see also Doc. 2).
In accordance with section 804(a)(3) of the Prison Litigation Reform Act of 1995, 28
U.S.C. § 1915(b)(1), plaintiff must pay an initial partial filing fee of 20 percent of the greater of
the average monthly deposits to his prison account or the average monthly balance in his account
for the six month period immediately preceding the filing of the complaint. After payment of the
initial partial filing fee, plaintiff is further required to make monthly payments of 20 percent of
the preceding month’s income credited to his prison account until he pays the full amount of the
filing fee. 28 U.S.C. § 1915(b)(2).
Plaintiff’s application and trust fund account statement reveal that he has insufficient
funds in his prison account to pay the full filing fee.
After consideration by this Court of the plaintiff’s affidavit of indigence only, without
regard to the merits of this case, plaintiff’s supplemented motion to proceed in forma pauperis
(Docs. 1, 5) is hereby GRANTED pursuant to 28 U.S.C. § 1915(a).
Pursuant to 28 U.S.C. §1915(b)(1), the custodian of plaintiff’s inmate trust fund account
at the institution where he now resides is directed to calculate, as an initial partial payment,
twenty percent (20%) of the greater of:
(a) the average monthly deposits to the inmate trust account; or
(b) the average monthly balance in the inmate trust account, for the six (6) months
immediately preceding February 19, 2013. The custodian is ORDERED to complete and to
submit to the Clerk of Court in Cincinnati, Ohio the attached form showing his calculation of the
initial partial filing fee. The custodian is further ORDERED to forward from plaintiff’s prison
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account to the Clerk of Court located in Cincinnati, Ohio the initial partial filing fee, as funds
become available in plaintiff’s account until the initial filing fee is paid. Even if the account is
under ten dollars ($10.00), the custodian must still forward payments to the Clerk of Court to pay
the initial filing fee.
After full payment of the initial partial filing fee, the custodian shall forward to the Clerk
of Court located in Cincinnati, Ohio monthly payments of twenty percent (20%) of plaintiff’s
preceding monthly income credited to his prison account, but only when the amount in the
account exceeds ten dollars ($10.00), until the full fee of three hundred and fifty dollars
($350.00) has been paid to the Clerk of the Court. 28 U.S.C. §1915(b)(2).
The Clerk of Court is DIRECTED to send a copy of this Order to the institutional
cashier.
The prisoner’s name and case number must be noted on each remittance.
Checks are to be made payable to: Clerk, U.S. District Court.
Checks are to be sent to:
Prisoner Accounts Receivable
103 Potter Stewart United States Courthouse
100 East 5th Street
Cincinnati, Ohio 45202

IT IS SO ORDERED.

/s/ Stephanie K. Bowman
United States Magistrate Judge

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CALCULATION OF INITIAL PARTIAL FILING FEE
Prisoner’s name
Case no.
Average Monthly Balance $
(For six month period preceding filing of complaint or notice of appeal)
Average Monthly Deposits $
(For six month period preceding filing of complaint or notice of appeal)
Initial Partial Filing Fee $
(the greater of the average monthly deposits or the average monthly balance x .20)

Date

Signature of Authorized Officer

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