Opinion
Civil Action No. 00-N-1066
December 19, 2000.
ORDER TO SHOW CAUSE
This matter is before me because the plaintiff has failed to comply with the Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915, entered June 27, 2000.
On June 27, 2000, the plaintiff was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. At that time, the plaintiff was directed: (1) to pay an initial partial filing fee of $4.00; and (2) thereafter to make monthly payments of twenty percent of his preceding month's income until his filing fee was paid in full, or show cause each month that he has no assets with which to make the monthly payment. In order to satisfy the show cause requirement, the plaintiff was directed to file a current certified copy of his inmate trust fund account statement. The plaintiff was warned that failure to comply with these requirements would result in dismissal of this action without further notice.
Subsequently, the plaintiff filed "Plaintiff's Motion Reques [sic] the Court to Review the Merits of Prisoners Civil Rights Complaint and Excuse Partial Filing Fee Ordered Pursuant to 28 U.S.C. § 1915" and "Plaintiffs [sic] Motion to be Excuse [sic] of Initial Partial Filing Fee, and to Have Court Proceed in Review of the Merits of Civil Action," wherein he requested that the Court review the merits of his action and excuse him from paying his initial partial filing fee of $4.00. In my Order dated August 24, 2000, I determined that the plaintiff had demonstrated that he had no assets or means in the month of June by which to pay the $4.00 fee. Consequently, I excused the plaintiff from paying his initial partial filing fee at that time. The plaintiff was directed, however, to pay the initial partial filing fee within thirty days or show cause why he had no assets or means by which to pay the fee. The plaintiff was further directed that, after payment of his initial filing fee, he was to make the required monthly payments toward his filing fee or show cause why he could not, all as directed by the Order entered June 27, 2000.
The plaintiff failed to comply with my Order of August 24. He neither paid the initial partial filing fee by September 24, 2000, nor did he show cause why he could not pay the fee. Indeed, the plaintiff did not file a copy of his "Inmate Banking History" until November 3, 2000, when he finally filed an account statement containing information for the period of time from April 1, 2000, to October 20, 2000.
The plaintiff's account statement shows an available balance of 56 cents as of October 20, 2000. The plaintiff appears to claim that because he had only 56 cents on October 20, he did not have assets with which to pay his filing fee in July, August, September, or October. To the contrary, the account statement shows deposits and voluntary expenditures during the relevant time period and for purposes other than paying the filing fee in this case, those deposits and expenditures far exceeding the $4.00 initial partial filing fee.
Section 1915(b)(2), 28 U.S.C. requires that a prisoner "shall make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account." Consequently, the filing fee payment is to be made by the prisoner at the time his account is credited with his monthly income, before the prisoner engages in other, discretionary spending of that income.
Prior to his discretionary monthly expenditures, the plaintiff had assets with which to pay the initial filing fee of $4.00 and to make monthly installments against the unpaid filing fee balance. The plaintiff cannot voluntarily spend his income and then claim that he is without assets to satisfy his federal court filing fee obligations. Such a rule would invite prisoners to fritter away their monthly income rather than pay the filing fees they have incurred.
Although I make no judgment concerning the plaintiff's monthly spending habits, I note that 49 of the plaintiff's 64 account debits were for postage. Since filing this action in May 2000, the plaintiff has inundated this Court with improper filings. For example, on October 17, 2000, I denied 14 of the plaintiff's motions for failure to serve them upon the defendants as required by Fed.R.Civ.P. 5. On October 26, 2000, I denied nine more filings because the plaintiff had failed to serve them on the defendants. In addition, I struck three filings as redundant. On November 30, 2000, I struck several more of the plaintiff's filings for failure to comply with the federal rules, failure to comply with my previous order, and because the documents were labeled "exhibits" but were not submitted in support of any motion or pleading. Many of the plaintiff's postage fees were necessarily incurred in sending these documents to the Court.
In addition, the plaintiff failed to make his payments or show cause why he could not pay on a month by month basis, as required by the Orders dated June 27 and August 24, 2000. The statute and orders regarding payment of the filing fee are not satisfied by the plaintiff providing information on a periodic basis as may be convenient to him.
IT IS ORDERED that the plaintiff shall SHOW CAUSE, if any there be, in writing and on or before January 15, 2001, why this case should not be DISMISSED for the plaintiff's failure to pay his initial partial filing fee of $4.00 and to thereafter make monthly payments of twenty percent of his preceding month's income until his filing fee is paid in full, or to show cause on a month by month basis that he had no assets with which to make the monthly payments.