Howell v. Gustafson et al
ORDER directing Clerk not to authorize service and advising plaintiff to notify Clerk in writing of any change of address. Plaintiff has incurred a debt to the U.S.A. in the amount of $350.00. Signed by Magistrate Judge Thomas E Rogers, III on 06/27/2017. (dsto, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Frederick L. Howell, #310890,
Richard H. Gustafson,
Clarissa W. Joyner,
Alan M. Wilson,
Orangeburg County Public Defenders
) C/A No. 5:17-1297-JFA-TER
This is a civil action filed by a state prisoner. Therefore, in the event that a limitations issue
arises, Plaintiff shall have the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988)
(prisoner’s pleading was filed at the moment of delivery to prison authorities for forwarding to
District Court). Under Local Rule 73.02(B)(2), pretrial proceedings in this action have been referred
to the assigned United States Magistrate Judge.
PAYMENT OF THE FILING FEE
Plaintiff has submitted an Application to Proceed Without Prepayment of Fees and Affidavit
(Form AO 240), which is construed as a motion for leave to proceed in forma pauperis. See 28
U.S.C. § 1915. A review of the motion reveals that Plaintiff should be relieved of the obligation to
prepay the full filing fee. Plaintiff’s motion for leave to proceed in forma pauperis is granted,
subject to the court’s right to require a payment if Plaintiff’s financial condition changes, and to tax
fees and costs against Plaintiff at the conclusion of this case if the court finds the case to be without
merit. See Flint v. Haynes, 651 F.2d 970, 972–74 (4th Cir. 1981). (ECF No. 2).
By filing this case, Plaintiff has incurred a debt to the United States of America in the amount
of $350.* See 28 U.S.C. § 1914. This debt is not dischargeable in the event Plaintiff seeks relief
under the bankruptcy provisions of the United States Code. See 11 U.S.C. § 523(a)(17). The Prison
Litigation Reform Act (PLRA) of 1996 permits a prisoner to file a civil action without prepayment
of fees or security, but requires the prisoner “to pay the full amount of the filing fee” as funds are
available. See 28 U.S.C. § 1915(a) and (b). As the court has granted Plaintiff permission to proceed
in forma pauperis, the agency having custody of Plaintiff shall collect payments from Plaintiff’s
Effective May 1, 2013, an administrative fee of $50 was added to the filing fee of $350.
The $50 administrative fee, however, is not applicable to in forma pauperis cases.
prisoner trust account in accordance with 28 U.S.C. § 1915(b)(1) and (2), until the full $350
filing fee is paid.
MOTION TO APPOINT COUNSEL
Plaintiff’s action is subject to summary dismissal, and the court denies Plaintiff’s Motion to
Appoint Counsel. (ECF No. 3). While the court is granted the power to exercise its discretion to
appoint counsel for an indigent in a civil action, 28 U.S.C. § 1915(e)(1); Smith v. Blackledge, 451
F.2d 1201 (4th Cir. 1971), such appointment “should be allowed only in exceptional cases.” Cook
v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Plaintiff in his motion has not shown that any
exceptional circumstances exist in this case.
MOTION FOR DISCOVERY
Plaintiff’s Motion for Discovery is denied. (ECF No. 4). Plaintiff’s action is subject to
summary dismissal for multiple reasons as discussed in the Report and Recommendation filed this
same day. As such, this Motion was premature as service had not been issued to any defendant.
TO THE CLERK OF COURT:
This case is subject to dismissal. Therefore, the Clerk of Court shall not issue any
summonses nor shall the Clerk of Court forward this matter to the United States Marshal for service
of process at this time.
The Clerk of Court shall not enter any change of address submitted by Plaintiff which directs
that mail be sent to a person other than Plaintiff unless that person is an attorney admitted to practice
before this court who has entered a formal appearance.
Plaintiff must place the civil action number listed above on any document provided to the
court pursuant to this Order. Any future filings in this case must be sent to ((Post Office Box
2317, Florence, South Carolina 29503) the address below. All documents requiring Plaintiff’s
signature shall be signed with Plaintiff’s full legal name written in Plaintiff’s own handwriting. Pro
se litigants shall not use the “s/typed name” format used in the Electronic Case Filing System. In
all future filings with this court, Plaintiff is directed to use letter-sized (8½ inches by 11 inches)
paper only, to write or type text on one side of a sheet of paper only and not to write or type on both
sides of any sheet of paper. Plaintiff is further instructed not to write to the edge of the paper, but
to maintain one inch margins on the top, bottom, and sides of each paper submitted.
Plaintiff is a pro se litigant. Plaintiff’s attention is directed to the following important notice:
You are ordered to always keep the Clerk of Court advised in writing (Post Office
Box 2317, Florence, South Carolina 29503) if your address changes for any reason,
so as to assure that orders or other matters that specify deadlines for you to meet will
be received by you. If as a result of your failure to comply with this Order, you fail
to meet a deadline set by this court, your case may be dismissed for violating this
Order. Therefore, if you have a change of address before this case is ended, you
must comply with this Order by immediately advising the Clerk of Court in writing
of such change of address and providing the court with the docket number of all
pending cases you have filed with this court. Your failure to do so will not be
excused by the court.
IT IS SO ORDERED.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
June 27, 2017
Florence, South Carolina
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