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Trevino v. Woodbury County Jail

United States District Court, N.D. Iowa, Western Division

August 28, 2014

RICHARD TREVINO, Plaintiff,
v.
WOODBURY COUNTY JAIL, LIEUTENANT PHILLIPS, CARLOS LNU, UNITED STATES MARSHALS SERVICE, Defendants.

INITIAL REVIEW ORDER

LEONARD T. STRAND, Magistrate Judge.

This matter is before the court on the plaintiff's application to proceed in forma pauperis (Doc. No. 3). The plaintiff filed such application on June 25, 2014. Along with his application to proceed in forma pauperis, the plaintiff submitted a complaint (Doc. No.

2). The plaintiff filed a supplement to his complaint (Doc. No. 7) on July 17, 2014.

I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915

Based on the plaintiff's application to proceed in forma pauperis, the court concludes 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 deemed 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 the information that the plaintiff provided, the court finds that the plaintiff is unable to submit an initial partial filing fee. Id. Nonetheless, the plaintiff shall be directed to "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,

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, 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.

II. THE PLAINTIFF'S COMPLAINT

It appears unlikely that the plaintiff states a viable constitutional claim under 42 U.S.C. § 1983 against any of the named defendants. See Alexander v. Hedback, 718 F.3d 762, 765-67 (8th Cir. 2013). Nevertheless, the court is unable to determine as a matter of law whether the plaintiff's complaint is frivolous, fails to state a claim upon which relief can be granted or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b). Consequently, the court is of the opinion that the matter is best addressed after receipt of an answer or any dispositive motion deemed appropriate. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Money v. Moore, 877 F.2d 9, 10 (8th Cir. 1989). The clerk's office shall serve the complaint on the defendants and mail a copy of the complaint to the Woodbury County Attorney and the United States Attorney without the prepayment of fees and costs. A copy of this order is to accompany the documents being served. The Woodbury County Attorney shall notify the court immediately if he lacks the consent of the state 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 October 17, 2014.

IT IS THEREFORE ORDERED:

(1) The plaintiff's application to proceed in forma pauperis (Doc. No. 3) is granted.
(2) The clerk's office is directed to file the complaint (Doc. Nos. 2 & 7) as a new entry without the prepayment of the filing fee.
(3) The plaintiff is directed to submit make monthly payments of 20 percent of the preceding month's income credited to his account at the prison.
(4) 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.
(5) 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.
(6) The clerk's office is directed to serve the complaint on the defendants and mail a copy of the complaint to the Woodbury County Attorney and United States Attorney without the prepayment of fees and costs. A copy of this order is to accompany the documents being served. The Woodbury County Attorney is directed to notify the court immediately if he lacks the consent of the state 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 October 17, 2014.

IT IS SO ORDERED.


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