United States District Court, N.D. Iowa, Eastern Division
MEMORANDUM OPINION AND ORDER
LEONARD T. STRAND, CHIEF JUDGE
matter is before me pursuant to a pro se 42 U.S.C. §
1983 complaint (Doc. No. 1) and pro se motion to proceed in
forma pauperis (Doc. No. 2) filed by plaintiff Yossuf
APPLICATION TO PROCEED IN FORMA PAUPERIS
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 Dubuque County Jail, has submitted documents
(Doc. No. 2) that substantially comply with those
requirements. Because it is clear that he does not have the
assets necessary to pay the filing fee, his application is
even though the court deems it appropriate to grant a
prisoner-plaintiff in forma pauperis status, that 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).
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 initial partial filing fee is $73.68.
See Doc. No. 2. Plaintiff shall submit $73.68 by no
later than thirty days 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 when 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 plaintiff is
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. Bonn, 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.
INITIAL REVIEW ANALYSIS