Opinion
Civil Action No. 2:05-CV-1068-F (WO).
November 30, 2005
ORDER ON MOTION
Plaintiff is an inmate incarcerated at the Easterling Correctional Facility located in Clio, Alabama. He filed an affidavit in support of a request for leave to proceed in forma pauperis, on November 4, 2005. In accordance with the provisions of 28 U.S.C. § 1915(b)(1), a prisoner who seeks to proceed in forma pauperis in a civil action or on appeal is required to pay the full amount of the requisite filing fee. However, where an inmate lacks the funds necessary to pay the entire filing fee upon initiation of the civil action or appeal and has money available to him, the court shall assess and collect an initial partial filing fee.
Attached to this Order is a notice explaining the requisite procedures for filing civil actions in forma pauperis under 28 U.S.C. § 1915.
An inmate account clerk filed a certificate which indicates the balance in Plaintiff's prison account at the time the instant complaint was filed and provides the court with information necessary to determine the average monthly balance in his prison account and the average monthly deposits to such account for the six month period preceding the filing of this complaint. A review of this information reveals that Plaintiff lacks the funds necessary to pay the $250.00 filing fee. The documents further establish that for the six month period immediately preceding the filing of the instant complaint the average monthly deposits to Plaintiff's prison account were $41.67. Such amount was greater than the average monthly balance in Plaintiff's account ($29.27). Thus, in accordance with the provisions of 28 U.S.C. § 1915(b)(1)(A), Plaintiff is required to pay an initial partial filing fee of $8.33 (20 percent of the average monthly deposits to Plaintiff's account).
Accordingly, it is ORDERED that:
1. Within twenty-one (21) days of the filing date of this order Plaintiff shall forward to the Clerk of this Court the sum of $8.33 as an initial partial filing fee. Plaintiff is hereby advised that it is his responsibility to submit the appropriate paperwork to the prison account clerk for transmission of his funds to this court for payment of the initial partial filing fee. If the funds are not now available in Plaintiff's prison account, he must make arrangements for payment of the requisite filing fee;
2. Plaintiff shall make monthly payments of 20 percent of each preceding month's income and/or funds credited to his account as payments towards the $250.00 filing fee in accordance with 28 U.S.C. § 1915(b)(2);
3. Those persons having custody of Plaintiff shall forward the above described payments from his inmate account to the Clerk of this Court each time the amount in the Plaintiff's account exceeds $10.00 until the $250.00 filing fee is paid in full;
4. The Clerk of Court SEND a copy of this Order to the account clerk at the Easterling Correctional Facility;
5. Except to the extent that payment is required under this order, Plaintiff's motion for leave to proceed in forma pauperis (Doc. No. 2), is GRANTED pursuant to 28 U.S.C. § 1915(a)(1); and
6. Plaintiff is cautioned that his failure to pay the initial partial filing fee in compliance with this order may result in a recommendation the Magistrate Judge will recommend that his case be dismissed and such dismissal will not be reconsidered unless exceptional circumstances exist.
Plaintiff is advised that if he is unable to procure the initial partial filing fee within the time allowed by this court he must inform the court of such inability and request an extension of time within which to file the fee. Plaintiff is further advised that if this case is dismissed for failure to pay the initial partial filing fee or for any other reason he remains obligated to pay the $250.00 filing fee. The filing fee will be collected from any funds which become available to Plaintiff and will be forwarded to this court by those persons having custody of the plaintiff pursuant to the directives contained in this order. Moreover, Plaintiff is hereby informed that notwithstanding payment of the initial partial filing fee this court will dismiss this case prior to service of process if the court determines that the action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii).
Plaintiff is also advised that if he files a notice of appeal he will likewise be required to pay the requisite appellate filing fee which is currently $255.00. Thus, if at the time Plaintiff files a notice of appeal he has the necessary funds to pay the $255.00 filing fee, he must submit such amount to the court with the notice of appeal. If the requisite funds are not available and Plaintiff seeks to proceed in forma pauperis on his appeal, he must complete an affidavit in support of such request and supply the court with a certified copy of his prison account statement for the 6-month period preceding the filing of the appeal. However, Plaintiff is informed that regardless of this court's determination on his in forma pauperis motion the entire appellate filing fee will be collected from those persons having custody of him from funds available in his prison account in a manner similar to that outlined in this order.