United States District Court, N.D. Iowa, Cedar Rapids Division
ROBERT L. PHELPS, District Judge.
This matter is before the court on the plaintiff's application to proceed in forma pauperis (docket no. 1), which was filed on June 25, 2014, and motion for temporary restraining order or preliminary injunction and for appointment of counsel (docket no. 4), which was filed on August 29, 2014. Along with his application to proceed in forma pauperis, the plaintiff submitted a complaint under 42 U.S.C. § 1983 (docket no. 1-1).
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
On July 7, 2014, the court directed the plaintiff to submit a certificate of inmate account as required by 28 U.S.C. § 1915. On July 29, 2014, the plaintiff complied with the court's directive. Based on the plaintiff's application to proceed in forma pauperis and certificate of inmate account, 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 his average monthly deposits, the court finds that the initial partial filing fee is $53.70. Id. The plaintiff shall submit $53.70 by no later than October 8, 2014. Id. If necessary, the plaintiff may request in a written motion an extension of time to pay the initial partial filing fee.
In addition to the initial partial filing fee, 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, after the plaintiff pays in full the 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. Case 1:14-cv-00082-LRR Document 5 Filed 09/18/14 Page 2 of 10
II. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe , 449 U.S. 5, 9 (1980); Haines v. Kerner , 404 U.S. 519, 520 (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 (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 (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 (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).
III. CLAIM ASSERTED
Currently confined at the Anamosa State Penitentiary in Anamosa, Iowa, the plaintiff, proceeding pro se, submitted a complaint to redress issues that are related to his parental rights. Jurisdiction is predicated on 28 U.S.C. § 1343. Under 28 U.S.C. § 1391(b), venue appears to be proper as the events giving rise to the instant action occurred in this district.
The statement of claim portion of the complaint is as follows:
On June 22, 2005, I came to the Anamosa State Penitentiary to serve a life sentence. I have nine children and had full custody of the children before I came to prison. And, from the time that I came to prison in June of 2005, I talked to and visited my children. Then, on January 24, 2011, the prison and Roche, the director of the Office of Victim and Restorative Justice Programs, stated that I could no longer have contact with any immediate family members, including all of my children. Communication by telephone, visits, O-mail and third party was prohibited. I was at home with my children all their lives before going to prison. Going to prison was bad, but not seeing me or talking to me made matters worse. The children started having problems in school. Some of the children had to receive treatment for clinical depression. Seven of the nine kids are under psychotherapy. When the children were able to come and see me and have phone calls with me, we had no problems. This was not from a court order. This decision was from Roche and Fayram, the Warden of the Anamosa State Penitentiary. Fayram complied and enforced it. I and my children and the caretaker of my underage children appealed to Roche and Fayram. I also appealed to the Citizens' Aide/Ombudsman and to Baldwin, the director of the Iowa Department of Corrections. After the appeals, Fayram and Roche let me see all of the children after they turned 18 years old. But, I cannot see all the children under 18 years old or have contact with any of them. Roche and Fayram's order to not have communication with my children was and is cruel and unusual punishment and is outside of their authority. Iowa Code section 598.41B(2) states: In determining whether visitation would be in the best interests of the child pursuant to subsection 1, the court shall consider several criteria. If you look at the memorandum of January 24, 2011 (attached), none of the criteria was considered when a decision was made. Prior notice was not given to me that a decision was going to be made concerning the visitation of my minor children. Since no hearing was held, I was not able ...