Opinion
CIVIL ACTION NO. 4:03-CV-366-A
May 30, 2003
ORDER RE: INITIAL PARTIAL FILING FEE AND COLLECTION AND PAYMENT OF FULL FILING FEE (With Special Instructions to the Clerk of Court)
Came on for consideration plaintiff's Application Proceed In Forma Pauperis. The Prison Litigation Reform Act of 1995 (PLRA) requires prisoners seeking to bring civil actions to pay an initial partial filing fee. The PLRA further requires prisoners thereafter to pay the balance of the full filing fee ($150.00).
The Court having considered the application in light of the PLRA, finds that the following order should be entered.
It is therefore ORDERED that:
[X] 1. Plaintiff is granted leave to proceed pursuant to 28 U.S.C. § 1915.
[X] 2. Plaintiff will not be assessed an initial partial filing fee because he lacks the requisite funds in his prison account to pay an initial fee; however, plaintiff will be required to pay the full filing fee of $150.00 pursuant to the PLRA.
[X] 3. Plaintiff shall pay $ 150.00, the balance of the filing fee, in monthly installments as provided in 28 U.S.C. § 1915(b)(2).
The agency having custody of plaintiff shall deduct 20% of each deposit made to plaintiff's inmate trust account and forward payments to the Court on a regular basis provided the account exceeds $ 10.00.
Plaintiff shall immediately execute all consents and other documents required by the agency having custody of plaintiff to authorize the necessary withdrawals from plaintiff's inmate trust account.
The Prison Litigation Reform Act requires a prisoner who brings a civil action to pay the fall amount of the filing fee. 28 U.S.C. § 1915(b)(1). The Court of Appeals for the Fifth Circuit has held that 1915(b)(1) attaches fees upon the completion of a specific event, either the "filing of an appeal" or the "bringing of a civil action." See Williams v. Roberts, 116 F.3d 1126, 1127 (5th Cir. 1997) (holding that an appellate fee must be assessed at the moment of filing, regardless of whether the case is later dismissed). Thus, Plaintiff is explicitly informed that he is now responsible for payment of the full filing fee, no matter how this case is resolved, and even if the case is voluntarily dismissed or dismissed for lack of prosecution.
4. Service of process shall be withheld pending judicial screening pursuant to 28 U.S.C. § 1915(e)(2).
5. All discovery in this case is stayed until an answer is filed or until further order.
6. No motions for appointment of counsel shall be filed until the Court has completed its screening pursuant to 28 U.S.C. § 1915(e)(2), which may include a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), or such other proceedings deemed appropriate by the Court.
7. Plaintiff shall promptly notify the Court of any change of address by filing a written notice of change of address with the Clerk of Court Failure to file such notice may result in this case being dismissed for want of prosecution.
NOTICES TO PLAINTIFF :
a. Payment of all or any part of the full filing fee will not prevent dismissal of the complaint if it is frivolous, malicious, fails to state a claim upon which relief may be granted, seeks monetary relief from a defendant who is immune from such relief, or such other reason that authorizes dismissal of the Complaint
b. State law may require the forfeiture of good conduct time credits as a sanction for a state or federal lawsuit brought by an inmate (1) while in the custody of the Texas Department of Criminal Justice, Institutional Division, or (2) while the inmate was confined in a county jail awaiting transfer to the Department of Criminal Justice following conviction of a felony or revocation of community supervision, parole, or mandatory supervision, that is dismissed as frivolous or malicious. See TEX. GOVT. CODE ANN. § 498.0045 (Vernon Supp 2003).
The Clerk of Court shall mail a copy of this Order to the inmate accounting office or other person(s) or entity with responsibility for assessing, collecting, and remitting to the Court the interim filing fee payments on behalf of inmates, as designated by the facility in which plaintiff is confined.
After docketing of this order, this action should be returned to the United States District Judge for further review and for such other action as may be deemed appropriate.