Opinion
Civil Action No. 07-cv-02304-BNB.
March 27, 2008
ORDER GRANTING PLAINTIFF LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915 WITHOUT PAYMENT OF INITIAL PARTIAL FILING FEE
On October 26, 2007, Plaintiff, Lawrence Evertte Savage, filed a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff also submitted a properly certified copy of his trust fund account statement on November 14, 2007. On November 28, 2007, the Court granted Plaintiff permission to proceed in forma pauperis and directed him to pay an initial partial filing fee of $4.00 pursuant to 28 U.S.C. § 1915(b)(1) or to show cause why he has no assets and no means by which to pay the designated initial partial filing fee by filing a current certified copy of his trust fund account statement.
On March 25, 2008, Plaintiff filed a current certified copy of his trust fund account statement and asserted that he is unable to pay the $4.00. Based on the information provided about Plaintiff's financial status, the Court finds that he is unable to pay an initial partial filing fee pursuant to § 1915(b)(1).
In the pleading attached to the certified account statement that Plaintiff filed with the Court on March 25, 2008, Plaintiff refers to his "Habeas Corpus Motion to Proceed In Forma Pauperis 28 USC § 2254." The instant action is a prisoner complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff was granted leave to proceed pursuant to 28 U.S.C. § 1915. This is not a habeas corpus action.
Title 28 U.S.C. § 1915 requires a prisoner bringing a civil action "to pay the full amount of a filing fee." 28 U.S.C. § 1915(b)(1). If a prisoner is unable to afford the full amount of the filing fee when the case is filed, the statute provides for payment of the filing fee through an initial partial filing fee and monthly installments of the balance until the full filing fee is paid. However, "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment 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).
Because Plaintiff's trust fund account statement indicates that he has insufficient funds in his inmate account available to him to pay an initial partial filing fee and that he has no other available assets, Plaintiff may proceed in this action without payment of an initial partial filing fee. The Court will proceed to review Plaintiffs Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) to determine whether it is frivolous or malicious, or seeks monetary relief against a defendant who is immune from such relief.
However, although he need not pay an initial partial filing fee, Plaintiff remains obligated to pay the required $350.00 filing fee through monthly installments as directed in this Order. Accordingly, it is
ORDERED that Plaintiff may proceed without payment of an initial partial filing fee. Plaintiff remains obligated to pay the full amount of the required $350.00 filing fee pursuant to § 1915(b)(1) regardless of the outcome of this action. It is
FURTHER ORDERED that, until the $350.00 filing fee is paid in full, Plaintiff shall make monthly payments to the Court of twenty percent of the preceding month's income credited to his account or show cause why he has no assets and no means by which to make each monthly payment. Plaintiff is directed to make the necessary arrangements to have the monthly payments identified by the civil action number on this Order. In order to show cause, Plaintiff must file a current certified copy of his trust fund account statement. It is
FURTHER ORDERED that if Plaintiff fails to have the appropriate monthly payment sent to the Clerk of the Court each month or to show cause each month as directed above why he has no assets and no means by which to make the monthly payment, the Complaint may be dismissed without prejudice and without further notice. It is
FURTHER ORDERED that process shall not issue until further order of the Court. It is