Jensen v. Sgt Porter et al

Filing 7

MEMORANDUM DECISION and Order: It is therefore ordered: Although the Court has already granted Plaintiff's application to proceed in forma pauperis, Plaintiff must still eventually pay $350.00, the full amount of the filing fee. 2) Plaintif f must pay an initial partial filing fee of $0.62 within thirty days of the date of this Order, or his complaint will be dismissed. 3) Plaintiff must make monthly payments of twenty percent of the preceding months income credited to plaintiffs a ccount. 4) Plaintiff shall make the necessary arrangement to give a copy of this Order to the inmate funds accounting office at Plaintiffs correctional facility. 5) Plaintiff shall complete the consent to collection of fees and submit it to the inmat e funds accounting office at Plaintiffs correctional facility and also submit a copy of the signed consent to this Court, or the complaint will be dismissed. 6) denying 4 Motion for Service of Process (Prisoner). However, if after the case is scree ned, it appears that this complaint states a claim upon which relief may be granted, the Court may order service of process; denying 5 Motion to Appoint Counsel. However, if after the case is screened, the Court may ask an attorney to appear pro bono on Plaintiffs behalf. Signed by Judge Ted Stewart on 07/11/2011. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
) ORDER & MEMORANDUM DECISION
)
Plaintiff,
) Case No. 1:11-CV-99 TS
)
v.
) District Judge Ted Stewart
)
WEBER COUNTY CORR. FACILITY et al.,)
)
Defendants.
)
_________________________________________________________________
ELLIS WADE JENSEN,

Plaintiff, Ellis Wade Jensen, filed a pro se prisoner civil
rights complaint.1

He also moves for appointed counsel and

service of process.

The Court has already granted Plaintiff's

request to proceed without prepaying the entire filing fee.
Even so, Plaintiff must eventually pay the full $350.00
filing fee required.2

Plaintiff must start by paying "an initial

partial filing fee of 20 percent of the greater of . . . the
average monthly deposits to [his inmate] account . . . or . . .
the average monthly balance in [his inmate] account for the 6month period immediately preceding the filing of the complaint."3
Under this formula, Plaintiff must pay $0.62.

If this initial

partial fee is not paid within thirty days, or if Plaintiff has
not shown he has no means to pay the initial partial filing fee,
the complaint will be dismissed.

1

See 42 U.S.C.S. § 1983 (2011).

2

See 28 id. § 1915(b)(1).

3

Id.

Plaintiff must also complete the attached "Consent to
Collection of Fees" form and submit the original to the inmate
funds accounting office and a copy to the Court within thirty
days so the Court may collect the balance of the entire filing
fee Plaintiff owes.

Plaintiff is also notified that pursuant to

Plaintiff's consent form submitted to this Court, Plaintiff's
correctional facility will make monthly payments from Plaintiff's
inmate account of twenty percent of the preceding month's income
credited to Plaintiff's account.
Next, the Court considers Plaintiff's motion for appointed
counsel.

Plaintiff has no constitutional right to counsel.4

The

Court may, however, in its discretion appoint counsel for
indigent inmates.5

The applicant has the burden of showing that

his claim has enough merit to justify the Court in appointing
counsel.6
When deciding whether to appoint counsel, the Court studies
a variety of factors, "including 'the merits of the litigant's
claims, the nature of the factual issues raised in the claims,
the litigant's ability to present his claims, and the complexity

4
See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v. Utah
State Prison, 823 F.2d 397, 399 (10th Cir. 1987).
5

See 28 U.S.C.S. § 1915(e)(1) (2011); Carper, 54 F.3d at 617; Williams
v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).
6

McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).

2

of the legal issues raised by the claims.'"7

Considering these

factors, the Court concludes that (1) it is unclear at this time
that Plaintiff has asserted a colorable claim; (2) the issues
here are not complex; and (3) Plaintiff is not incapacitated or
unable to adequately function in pursuing this matter.

Thus, the

Court denies for now Plaintiff's motion for appointed counsel.
Finally, the Court denies for now Plaintiff's motion for
service of process.

The Court may fully screen Plaintiff's

complaint at its earliest convenience and determine whether to
dismiss it or order it to be served upon Defendants.8

Plaintiff

need do nothing further to trigger this process.
IT IS THEREFORE ORDERED that:
(1) Although the Court has already granted Plaintiff's
application to proceed in forma pauperis, Plaintiff must still
eventually pay $350.00, the full amount of the filing fee.
(2) Plaintiff must pay an initial partial filing fee of
$0.62 within thirty days of the date of this Order, or his
complaint will be dismissed.
(3) Plaintiff must make monthly payments of twenty percent
of the preceding month's income credited to Plaintiff's account.

7

Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citation
omitted); accord McCarthy, 753 F.2d at 838-39.
8

See id. § 1915A.

3

(4) Plaintiff shall make the necessary arrangement to give a
copy of this Order to the inmate funds accounting office at
Plaintiff's correctional facility.
(5) Plaintiff shall complete the consent to collection of
fees and submit it to the inmate funds accounting office at
Plaintiff's correctional facility and also submit a copy of the
signed consent to this Court within thirty days from the date of
this Order, or the complaint will be dismissed.
(6) Plaintiff's request for appointed counsel is DENIED;
however, if, after the case is screened, it appears that counsel
may be needed, the Court may ask an attorney to appear pro bono
on Plaintiff's behalf.

(See File Entry # 5.)

(7) Plaintiff's motion for service of process is DENIED;
however, if, after the case is screened, it appears that this
complaint states a claim upon which relief may be granted, the
Court may order service of process.

(See File Entry # 4.)

DATED this 11th day of July, 2011.
BY THE COURT:

______________________________
CHIEF JUDGE TED STEWART
United States District Court

4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

CONSENT TO COLLECTION OF FEES FROM INMATE TRUST ACCOUNT

I, Ellis Wade Jensen (Case No. 1:11-CV-99 TS), understand
that even though the Court has granted my application to proceed
in forma pauperis and filed my complaint, I must still eventually
pay the entire filing fee of $350.00. I understand that I must
pay the complete filing fee even if my complaint is dismissed.
I, Ellis Wade Jensen, hereby consent for the appropriate
institutional officials to withhold from my inmate account and
pay to the court an initial payment of $0.62, which is 20% of the
greater of:
(a)

the average monthly deposits to my account for the sixmonth period immediately preceding the filing of my
complaint or petition; or

(b)

the average monthly balance in my account for the sixmonth period immediately preceding the filing of my
complaint or petition.

I further consent for the appropriate institutional
officials to collect from my account on a continuing basis each
month, an amount equal to 20% of each month's income. Each time
the amount in the account reaches $10, the Trust Officer shall
forward the interim payment to the Clerk's Office, U.S. District
Court for the District of Utah, 350 South Main, #150, Salt Lake
City, UT 84101, until such time as the $350.00 filing fee is
paid in full.
By executing this document, I also authorize collection on a
continuing basis of any additional fees, costs, and sanctions
imposed by the District Court.

_____________________________
Signature of Inmate
Ellis Wade Jensen