United States District Court, N.D. Iowa, Cedar Rapids Division
R. READE JUDGE.
matter is before the court pursuant to the plaintiff's
pro se application to proceed in forma pauperis (docket no.
1) and pro se complaint (docket no. 1-1).
APPLICATION TO PROCEED IN FORMA PAUPERIS
plaintiff 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).
an inmate at the Anamosa State Penitentiary, in Anamosa Iowa,
Iowa, has submitted documents which substantially comply with
those requirements. (See docket no. 1 at 1-4.).
Because plaintiff does not have the assets necessary to pay
the filing fee, his application (docket no. 1) is
even though 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).
plaintiff must pay an initial partial filing fee in the
amount of twenty 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 documents that plaintiff
submitted, the court finds that the initial partial filing
fee is $5.39. (See docket no. 1 at 4). Plaintiff
shall submit $5.39 by no later than one month from the date
of this order. If the court does not receive payment by this
deadline, the instant action shall be dismissed pursuant to
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). If necessary, plaintiff may
request in a written motion an extension of time to pay the
initial partial filing fee.
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 remaining
installments shall be collected by the institution having
custody of the plaintiff. 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.
INITIAL REVIEW STANDARD
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). However, the Court may dismiss an in
forma pauperis complaint if it is frivolous, malicious, fails
to state a claim upon which relief can be granted, or seeks
monetary relief against a defendant that is immune from a
monetary judgment. 28 U.S.C. § 1915(e)(2); see
also 28 U.S.C. § 1915A(b)(1) (requiring the Court
to do an initial review of prisoner complaints).
reviewing a prisoner or in forma pauperis complaint, 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). Pro se complaints, however, must
allege sufficient facts to support the plaintiff's claim.
Stone, 364 F.3d at 914. 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). In determining whether a
complaint fails to state a claim pursuant to §
1915(e)(2), courts generally rely on the standards
articulated pursuant to Federal Rule of Procedure 12(b)(6).
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.
1997); see also Atkinson v. Bohn, 91 F.3d
1127, 1128-29 (8th Cir. 1996) (applying Rule 12(b)(6)
standard to a dismissal under 28 U.S.C. § 1915(e)(2). 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). Pursuant to § 1915(e)(2), a court may review the
complaint and dismiss sua sponte those claims that fail
“to raise a right to relief above the speculative
level, ” Id. at 555., or that are premised on
meritless legal theories or clearly lack any factual basis,
see Neitzke, 490 U.S. at 325.