Opinion
1:09CV681.
September 25, 2009
ORDER
Plaintiff seeks to proceed in this action in forma pauperis. In reliance upon the representations set forth in the request, the Court finds that Plaintiff had deposits of $205.00 in his inmate account in the last six months and it is, therefore, determined that he must make an initial partial payment of the fees in this matter. Further, Plaintiff has made motions for appointment of counsel and to have one of the defendants arrested. Both motions will be denied. There is no absolute right to an attorney in a civil case. DesRosiers v. Moran, 949 F.2d 15, 23-24 (1st Cir. 1991). Before appointing an attorney, the Court must look to the type and complexity of the case, and the ability of Plaintiff to prosecute it. Id.; Whisenant v. Yuam, 739 F.2d 160 (4th Cir. 1984). After reviewing these factors, the Court determines that Plaintiff does not, at this time, meet this test and he will, therefore, be required to prosecute this action by himself. As for the motion for arrest, that is not a proper motion in a civil case.
IT IS THEREFORE ORDERED that Plaintiff in the above-named action be, and is hereby, permitted to file and prosecute said action in this Court without prepayment of fees or giving security therefor, subject to the conditions set forth below.
IT IS FURTHER ORDERED that Plaintiff's motions to appoint counsel and for arrest are DENIED. (Docket Nos. 3 and 4.)
IT IS FURTHER ORDERED that, as a condition of Plaintiff's proceeding in forma pauperis, Plaintiff shall, within sixty (60) days after the date of this Order, submit to the Clerk an initial payment of $6.83 (which represents 20% of the greater of the average monthly deposits into or the balance in Plaintiff's account for the 6-month period immediately preceding filing of this complaint), and at the same time sign and return the "Consent to Collection of Fees From Trust Account" form, which the Clerk is sending with this Order.
IT IS FURTHER ORDERED that, as a condition of Plaintiff's proceeding in forma pauperis, Plaintiff's trust officer shall be directed to pay to the Clerk of this Court 20% of all deposits to his account starting with the month of October, and thereafter until the $350.00 filing fee has been paid.
IT IS FURTHER ORDERED that this action be filed, but that further proceedings and service of summons be stayed until Plaintiff has either (1) submitted to the Court the sum(s) noted above along with the "Consent to Collection" form, or (2) in the alternative has submitted the "Consent to Collection" form along with a motion for relief from the stay, and a statement made under penalty of perjury that he has not had access to any funds for payment of the sum(s) noted above for the 60-day period.
FAILURE TO COMPLY WITH THIS ORDER IN A TIMELY MANNER WILL RESULT IN DISMISSAL OF THIS ACTION WITHOUT FURTHER NOTICE TO PLAINTIFF.
CONSENT TO COLLECTION OF FEES FROM TRUST ACCOUNT
I, _______________, prison number __________, hereby consent:
1. for the appropriate prison officials to collect or set aside from my account on a continuing basis each month, starting the month after this action was filed, an amount equal to 20% of each month's income or deposits for the payment of filing fees and costs of this action;
2. that collection shall continue even after my case is dismissed or otherwise decided until the full filing fee and any assessed costs are paid;
3. that I may not withdraw or use any part of these 20% monthly set asides except to pay the court;
4. that the court will order the Trust Officer (or similarly designated official) to forward payments to the Clerk's Office, U.S. District Court, Post Office Box 2708, Greensboro, North Carolina 27402, until such time as the $350.00 filing fee and any assessed costs are paid in full; and
5. that I understand that any violation or noncompliance by me with the terms of this Consent shall result in the dismissal of the above entitled action with prejudice.
Date: __________ Plaintiff's signature: ____________________