Willard v. Kasich et al
Filing
14
DEFICIENCY ORDER - Plaintiff is ORDERED to either pay the $400 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. Signed by Magistrate Judge Mark R. Abel on 11/12/2014. (sr1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Christopher Willard,
Plaintiff
:
Governor John R. Kasich, et al.,
Defendants
Civil Action 2:14-cv-0741
:
v.
:
Judge Watson
:
Magistrate Judge Abel
:
DEFICIENCY ORDER
Plaintiff Christopher Willard, a prisoner at the Correctional Reception Center,
has filed a complaint alleging that he has been denied needed medical care for rheumatoid arthritis. This matter is before the Magistrate Judge on plaintiff’s October 9, 2014
motion to proceed in forma pauperis (doc. 5).
By an Order filed July 9, 2014 (doc. 2), plaintiff was ordered to either pay the $400
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. He has
failed to do so. On September 8, 2014, this case was dismissed for failure to pay the
filing fee. (Doc. 3.)
On October 9, 2014, plaintiff Willard filed a response (doc. 6) to the September 8,
2014 Order dismissing his case. Willard states that he submitted three requests to the
institutional cashier for a cashier’s statement. He maintains that the institutional cashier
delayed processing his request in order to have his case dismissed. Willard requests
that his case may now be permitted to proceed.
Willard provides an undated “affidavit”1 saying he submitted three kites to the
prison cashier regarding his Application and Affidavit by an Incarcerated Person to
Proceed Without Prepayments of Fees and Costs, he did not provide the Court with
copies of the kites. Further, he has never submitted the executed Application and Affidavit by an Incarcerated Person to Proceed Without Prepayments of Fees and Costs that
was attached to the July 9 Deficiency Order.2
Plaintiff is ORDERED to either pay the $400 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. He should also
provide evidence supporting his assertion that he timely executed the Application and
Affidavit by an Incarcerated Person to Proceed Without Prepayments of Fees and Costs
and submitted it to the Prison Cashier for certification of his inmate funds.
s/Mark R. Abel
United States Magistrate Judge
1
The “affidavit” is not notarized, and it is not a declaration made under penalty
of perjury. See, 28 U.S.C. § 1746
2
He filed an affidavit that provides no information about the money he has on
hand in his inmate account.
2
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. . . . . . . . . . . .
Civil complaint . . . . . . . . . . . . . . . .
Civil complaint . . . . . . . . . . . . . . . .
Appeal . . . . . . . . . . . . . . . . . . . . . .
$5.00
$400.00
$350.00 (if IFP granted)
$505.00
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:
2
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 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
3
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).
4
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.
Amount
a.
b.
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
$__________
c.
d.
5
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?
Yes
5.
Amount $_________
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.
No
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?
6
Yes
No
If "Yes," list the dismissals:
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
7
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)
I certify that the applicant named herein has the sum of $
on account
to his/her credit at (name of institution)
. I further
certify that during the past six months the applicant's average monthly balance was $
and the applicant's average monthly deposits were $
. 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
8
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