United States District Court, N.D. Iowa, Central Division
INITIAL REVIEW ORDER
Leonard T. Strand, Chief Judge.
case is before me on plaintiff's application to proceed
in forma pauperis (Doc. No. 1), filed June 1, 2017. Along
with his application to proceed in forma pauperis, plaintiff
submitted a complaint under 42 U.S.C. § 1983 and a
statement of his health problems (Doc. No. 1-1). Plaintiff
filed an affidavit in support of his complaint (Doc. No. 2)
on June 28, 2017.
IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
did not submit the statutory filing fee. See 28
U.S.C. § 1914(a) (requiring filing fee). In order for a
court to authorize the commencement of an action without the
prepayment of the filing fee, a person must submit an
affidavit that includes a statement of all the assets the
person possesses. See 28 U.S.C. § 1915(a)(1).
In addition, a prisoner must submit a certified copy of the
trust fund account statement (or institutional equivalent)
for the 6-month period immediately preceding the filing of
the complaint, obtained from the appropriate official of each
prison at which the prisoner was or is confined. See
28 U.S.C. § 1915(a)(2). Based on plaintiff's
application, it is clear that plaintiff does not have
sufficient funds to pay the required filing fee. Thus,
plaintiff's application to proceed in forma pauperis
status is granted. See generally 28 U.S.C. §
1915. The clerk's office is directed to file
plaintiff's complaint without the prepayment of fees and
prisoner bringing a civil action in forma pauperis is
required to pay the full $350.00 filing fee. See 28
U.S.C. § 1915(b)(1). 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. See 28
U.S.C. § 1915(e)(2). Because I deemed it appropriate to
grant plaintiff in forma pauperis status, plaintiff is
required to pay the full filing fee by making payments on an
installment basis. See 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 computation of the initial partial filing fee, plaintiff
is required to submit 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.
See 28 U.S.C. § 1915(b)(1). Based on the
information that plaintiff provided, I find that the initial
partial filing fee is $6.65. Id. Plaintiff is
directed to submit $6.65 by no later than July 17, 2017.
Id. If necessary, plaintiff may request in a written
motion an extension of time to pay the initial partial filing
addition to the initial partial filing fee, 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 plaintiff pays
in full the initial partial filing fee, the institution
having custody of plaintiff is directed to collect the
remaining installments. Id. 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 plaintiff is an inmate.
STANDARD OF REVIEW
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); see also Stone v. Harry, 364 F.3d 912,
914 (8th Cir. 2004) (explaining that, although pro se
complaints must be liberally construed, they must allege
sufficient facts to support the claims that are advanced). In
addition, unless the facts alleged are clearly baseless, they
must be weighed in favor of the plaintiff. See 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.
See 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. . .
.'”, 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).
proceeding pro se, has submitted a complaint under 42 U.S.C.
§ 1983 to redress issues that are related to his
confinement. Jurisdiction is predicated on 28 U.S.C. §
1343. Under 28 U.S.C. § 1391(b), venue appears to be
proper as defendants are located in this district and the
events giving rise to the instant action occurred in this
district. The statement of claim portion of the complaint
indicates the following:
At 7:45-8:00 a.m., Mr. Hall, inmate ID Number 6905984, was
having a seizure in his cell, I-13, [at the] Anamosa State
Penitentiary. Mr. Hall's cellmate was not present at the
time. Inmate Daijour Hall, [inmate ID Number 6510041, ] had
come by the cell and witnessed that Mr. Hall was
unresponsive. After Daijour Hall yelled Mr. Hall's name a
couple times and received no response, Daijour [Hall] went to
get the Correctional Officer. The [Correctional Officer]
instructed Daijour [Hall to] go get the Sergeant as the
[Correctional Officer] [ran] to aid and assist Mr. Hall. The
Sergeant had called the Nurse's Station and spoke to . .
. Lori Nelson and the Sergeant told Lori [Nelson] that
medical assistance was needed in cell I-13 and that Mr. Hall
was having a seizure. [Lori] Nelson told the Sergeant that
she was not coming to assist because she believe[d] that Mr.
Hall . . . was faking it. The Sergeant proceeded to inform
[Lori Nelson] that Mr. Hall was not breathing. [Lori] Nelson
again said that Mr. Hall was faking it and ...