CORY M. SCHON, MARTIN R. SCHON, Plaintiffs,
JULIE SCHUMACHER, MEGHANN WHITMER, ASHLEY VOLKERT, LESLEY RYNELL, Defendants.
INITIAL REVIEW ORDER
MARK W. BENNETT, District Judge.
This matter is before the court on the plaintiffs' applications to proceed in forma pauperis (docket nos. 1 & 2). The plaintiffs filed their applications on May 28, 2013. Along with their applications to proceed in forma pauperis, the plaintiffs submitted a complaint under 42 U.S.C. § 1983 (docket no. 2-1).
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
A court may permit a party to proceed with litigation in forma pauperis, that is, "without prepayment of fees or security therefor, " if the party submits an affidavit that shows the inability "to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). When ruling on a 28 U.S.C. § 1915(a)(1) application, three general principles apply. First, proceeding in forma pauperis in a civil case is a privilege or favor granted by the government. Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 198, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). Second, the statute reads that the court "may authorize the commencement" of an action. 28 U.S.C. § 1915(a)(1). The grant, denial, or other decision concerning an in forma pauperis application requires the court to exercise discretion. Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); see also Lee v. McDonald's Corp., 231 F.3d 456, 458 (8th Cir. 2000) (explaining the purpose of 28 U.S.C. § 1915 and stating the decision of whether to grant or deny in forma pauperis status under 28 U.S.C. § 1915 is discretionary). Third, the ability to pay does not require that plaintiffs contribute their "last dollar" or "make themselves and their dependents wholly destitute." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S.Ct. 85, 93 L.Ed. 43 (1948).
The court concludes that the plaintiffs' statements entitle them to in forma pauperis status. Stated differently, the court is satisfied that the plaintiffs' allegation of poverty is true. See Lee, 231 F.3d at 458-59 (stating a court must determine whether the "allegation of poverty is untrue" when it assesses the affidavit supporting an application to proceed in forma pauperis); see also Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (concluding the requirements of 28 U.S.C. § 1915 were met because plaintiff received public assistance income of $222.00 per month, had checking account balance of less than $60.00, owned an automobile on which he owed $3600.00, and had other debts totaling $10, 000.00); cf. Marceaux v. Democratic Party, 79 Fed.Appx. 185, 186, 2003 U.S.App. LEXIS 22312, 2003 WL 22455419 (6th Cir. 2003) (concluding the district court did not abuse its discretion when it determined plaintiff could afford to pay the filing fee without undue hardship because he has no room and board expenses, owns a car, and spends the $250.00 earned each month selling plasma on completely discretionary items). Accordingly, the plaintiffs' applications to proceed in forma pauperis shall be granted. See 28 U.S.C. § 1915. The clerk's office shall be directed to file the plaintiffs' complaint without the prepayment of the filing fee.
Although it agrees that the granting of in forma pauperis status is appropriate in this case, the court finds that requiring the plaintiffs to submit partial payments or installment payments of the filing fee is permissible and desirable.
The ordering of a partial payment or an installment payment for court fees fits within the [language of 28 U.S.C. § 1915. Subsection (a) of 28 U.S.C. § 1915] does not say that upon granting in forma pauper status, court fees need not be paid or that they are remitted or otherwise waived. Instead, [subsection (a)] merely authorizes commencement without prepayment' if the applicant is unable to pay such fees.' This conveys the sense that the court may authorize the filing of an action without prepayment and look to cash flow and assets in order to secure post-payment.
White ex rel. Diggs v. Barnhart, 2002 U.S. Dist. LEXIS 14528, *5, 2002 WL 1760980 (M.D. N.C. 2002). The plaintiffs did not detail any of their expenses but made clear that they are employed. Consequently, the court deems it appropriate to collect partial payments or installment payments of the filing fee.
The court finds that the initial partial filing fee is $10.00. Cf. 28 U.S.C. § 1915(b)(1) (authorizing 20 percent of average monthly deposits to be collected). The plaintiffs shall be directed to submit an initial partial filing of $10.00 by no later than July 31, 2013. Id.; see also In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) (ordering petition to be dismissed with prejudice if petitioner did not pay filing fee within fifteen days and clarifying that, even if the petition is dismissed, petitioner would still be assessed the filing fee because 28 U.S.C. § 1915 makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal); Fed.R.Civ.P. 41(b) (permitting dismissal where a plaintiff either fails to prosecute or fails to respond to an order of the court); Hutchins v. A.G. Edwards & Sons, 116 F.3d 1256, 1259-60 (8th Cir. 1997) (explaining court's power to dismiss an action); Edgington v. Missouri Dept. of Corrections, 52 F.3d 777, 779-80 (8th Cir. 1995) (same), abrogated on other grounds by Doe v. Cassel, 403 F.3d 986, 989 (8th Cir. 2005). If necessary, the plaintiffs may request in a written motion an extension of time to pay the initial partial filing fee. Additionally, after they submit the initial partial filing fee, the plaintiffs shall be directed to submit monthly payments of $20.00 until the $350.00 filing fee is paid. Cf. 28 U.S.C. § 1915(b)(2) (authorizing 20 percent of monthly income to be collected). If necessary, the plaintiffs may ask the court to modify either the initial partial filing fee or the monthly payments. If they do so, the plaintiffs must complete and submit AO Form 239, which will provide the court with a better understanding of their expenses, cash flow and assets in order to secure post-payment of the filing fee. The clerk's office shall be directed to send AO Form 239 to the plaintiff.
II. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam); Smith v. St. Bernards Reg'l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged are clearly baseless, they must be weighed in favor of the plaintiff. Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). A court, however, can dismiss at any time a complaint filed in forma pauperis if the complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim is "frivolous" if it "lacks an arguable basis in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); accord Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir. 1994). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Accordingly, a court may review the complaint and dismiss sua sponte those claims that fail "to raise a right to relief above the speculative level....'", see Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that are premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490 U.S. at 325. See, e.g., Denton v. Hernandez, 504 U.S. at 27 (considering frivolousness); Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may dismiss an action if an affirmative defense exists).
A. Claims Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides, in ...