Opinion
No. 4:11CV2206 CDP
02-14-2012
KELVIN SETTLE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Kelvin Settle (registration no. 26754-044) for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $31.23. See 28 U.S.C. § 1915(b)(1). Additionally, because the government's motion to dismiss appear to have some merit, I will order Settle to show cause as to why the motion to dismiss should not be granted no later than March 7, 2012.
28 U.S.C. § 1915(b)(1)Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior six-month period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly payments to the Clerk of Court each time the amount in the prisoner's account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account statement for the six-month period immediately preceding the submission of his complaint. A review of plaintiff's account indicates an average monthly deposit of $156.17, and an average monthly balance of $123.23. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $31.23, which is 20 percent of plaintiff's average monthly deposit.
Motion to Dismiss
In this case Settle seeks return of certain property. Government counsel has filed a motion to dismiss. Before this case goes further, it is appropriate for Settle to respond to that motion to dismiss. It appears to me to have merit, so he must show cause why I should not grant it. Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #5] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $31.23 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, this case will be dismissed without prejudice.
IT IS FURTHER ORDERED that plaintiff must show cause as to why the government's motion to dismiss should not be granted no later than March 7, 2012.
_________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE