Opinion
Civil Action No. 08-cv-01570-BNB.
August 27, 2008
ORDER GRANTING PLAINTIFF LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915 WITHOUT PAYMENT OF INITIAL PARTIAL FILING FEE
Plaintiff, Herman Barnes, Jr., is a prisoner in the custody of the United States Bureau of Prisons who currently is incarcerated at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. He has filed pro se an amended Prisoner Complaint pursuant to 42 U.S.C. § 1983. He also has filed an amended Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
Plaintiff will be granted leave to proceed pursuant to 28 U.S.C. § 1915. Based upon the information about Mr. Barnes' financial status, the court finds that he is unable to pay an initial partial filing fee pursuant to § 1915(b)(1).
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 Mr. Barnes' amended 28 U.S.C. § 1915 motion and certified trust fund account statement indicate that he has insufficient funds in his inmate account to pay an initial partial filing fee and that he has no other assets, Mr. Barnes may proceed in this action without payment of an initial partial filing fee. The court will proceed to review the plaintiff's amended 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, Mr. Barnes remains obligated to pay the required $350.00 filing fee through monthly installments as directed in this order. Accordingly, it is
ORDERED that the plaintiff is granted leave to proceed pursuant to 28 U.S.C. § 1915. It is
FURTHER ORDERED that Mr. Barnes may proceed in this action without payment of an initial partial filing fee. Mr. Barnes remains obligated to pay the full amount of the required $350.00 filing fee pursuant to 28 U.S.C. § 1915(b)(1). It is
FURTHER ORDERED that, until the $350.00 filing fee is paid in full, Mr. Barnes shall make monthly payments to the court of twenty (20) 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. Mr. Barnes 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, the plaintiff must file a current certified copy of his trust fund account statement. It is
FURTHER ORDERED that if Mr. Barnes 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 amended Prisoner Complaint will be dismissed without prejudice and without further notice. It is
FURTHER ORDERED that the motion filed on August 18, 2008, is denied as moot because Mr. Barnes has submitted the amended complaint to this Court. It is
FURTHER ORDERED that process shall not issue until further order of the court. It is