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McPeek v. Klocker

United States District Court, N.D. Iowa, Cedar Rapids Division

February 25, 2014

TRAVIS R. McPEEK, Plaintiff,
v.
PAUL KLOCKER, JEFF TEBRINK, KAYLA WILLIS, BRITANNY HEDUM, C.O. DAWN, C.O. JOEL, SCOTT ALLEN, Defendants.

ORDER

LINDA R. READE, Chief District Judge.

The matter before the court is the plaintiff's certificate of inmate account (docket no. 3) and motion to amend complaint (docket no. 4). The plaintiff filed such certificate and motion on October 21, 2013.

Pursuant to the court's order, the plaintiff submitted a certificate of inmate account. In light of the record, it is clear that the plaintiff does not have sufficient funds to pay the required filing fee. 28 U.S.C. § 1914(a) (requiring $350.00 filing fee). Thus, in forma pauperis status shall be granted to the plaintiff. See generally 28 U.S.C. § 1915. The clerk's office shall file the complaint without the prepayment of the filing fee. Although the court deems it appropriate to grant the plaintiff in forma pauperis status, the plaintiff is required to pay the full $350.00 filing fee by making payments on an installment basis. 28 U.S.C. § 1915(b)(1); see also In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) ("[T]he [Prisoner Litigation Reform Act] makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal."). The full filing fee will be collected even if the court dismisses the case because it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks money damages against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

Here, the plaintiff must pay an initial partial filing fee in the amount of 20 percent of the greater of his average monthly account balance or average monthly deposits for the six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based on his statements, the court finds that the plaintiff is unable to pay an initial partial filing fee. Id. Nevertheless, the plaintiff must "make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account." 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner's institution to collect the additional monthly payments and forward them to the court. Specifically,

[a]fter payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

28 U.S.C. § 1915(b)(2). Therefore, although the plaintiff will not be required to submit an initial partial filing fee, the remaining installments shall be collected by the institution having custody of the plaintiff. Id. The clerk's office shall send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate.

As to the motion to amend complaint, the plaintiff clarifies the efforts that he made to exhaust his administrative remedies and adds a claim based on the defendants' failure to release him on an unsecured signature bond. Given the state court documents that the plaintiff included with his motion to amend complaint and the records in the state court cases, see State v. McPeek, OWCR014831 (Plymouth Cnty. Dist. Ct. 2013) and State v. McPeek, FECR015017 (Plymouth Cnty. Dist. Ct. 2013), the additional claim does not appear to be viable.[1] Nevertheless, the motion to amend complaint shall be granted.

Read liberally, many of the facts that are alleged in the plaintiff's amended complaint are strikingly similar to those that are alleged in McPeek v. Blanchard, Case No. 5:13-cv-04080 (N.D. Iowa 201_). In light of the facts alleged by the plaintiff, including but not limited to the fact that he alleges he already sought relief in state court, and the law, the court is doubtful that the plaintiff states a claim upon which relief can be granted. Nevertheless, the court is unable to determine as a matter of law whether the plaintiff's amended complaint is frivolous or fails to state a claim within the meaning of 28 U.S.C. § 1915 or 28 U.S.C. § 1915A. Consequently, the court is of the opinion that the matter is best addressed after receipt of an answer and/or any dispositive motion deemed appropriate. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Money v. Moore, 877 F.2d 9, 10 (8th Cir. 1989). The clerk's office shall serve the amended complaint on the defendants and mail a copy of the amended complaint to the Plymouth County Attorney without the prepayment of fees and costs. A copy of this order is to accompany the documents being served. The Plymouth County Attorney shall notify the court immediately if he lacks the consent of the defendants to appear generally on their behalf and submit to the jurisdiction of the court. The defendants shall file an answer or other dispositive motion by no later than April 4, 2014.

IT IS THEREFORE ORDERED:

(1) The plaintiff's application to proceed in forma pauperis status (docket no. 1) is granted.
(2) The clerk's office is directed to file the complaint without the prepayment of the filing fee.
(3) The plaintiff need not submit an initial partial filing fee. Nevertheless, the institution having custody of the plaintiff is directed to collect and remit monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full, the plaintiff is obligated to pay and the institution having custody of him is obligated to forward 20 percent of the preceding month's income credited to his account each time the amount in the account exceeds $10.00.
(4) The clerk's office is directed to send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate.

(5) The plaintiff's motion to amend complaint (docket no. 4) is granted.

(6) The clerk's office is directed to serve the amended complaint (docket nos. 4 & 6) on the defendants and mail a copy of the amended complaint to the Plymouth County Attorney without the prepayment of fees and costs. A copy of this order is to accompany the documents being served. The Plymouth County Attorney is directed to notify the court immediately if he lacks the consent of the defendants to appear generally on their behalf and submit to the jurisdiction of the court. The defendants are directed to file an answer or other dispositive motion by no later than April 4, 2014.

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