IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIE MCNAIR, )

)

 Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06-cv-695-WKW

) [wo]

)

RICHARD ALLEN, et al., )

)

 Defendants. )

ORDER AND OPINION ON MOTION

NOTICE TO PRISONERS: Pursuant to the 1996 revisions to 28 U.S.C. § 1915, the

requisite procedures for filing civil actions in forma pauperis have substantially

changed. Additionally, in accordance with the provisions of the Deficit Reduction Act

of 2005, the filing fee for civil actions has increased to $350. The attached notice

contains an explanation of these changes.

The plaintiff, a state inmate, filed a Motion to Proceed In Forma Pauperis (Doc. # 2)

and supporting documentation (Doc. # 3). In accordance with the provisions of 28 U.S.C.

§ 1915(b)(1), a prisoner who seeks to proceed in forma pauperis in a civil action or on appeal

is required to pay the full amount of the requisite filing fee. However, where an inmate lacks

the funds necessary to pay the entire filing fee upon initiation of the civil action or appeal and

has money available to him, the Court shall assess and collect an initial partial filing fee. 

An inmate account clerk filed a certificate which indicates the balance in plaintiff’s

prison account at the time the instant complaint was filed and provides the Court with

information necessary to determine the average monthly balance of plaintiff’s prison account

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and the average monthly deposits to such account for the six month period preceding the

filing of this complaint. A review of this information reveals that the plaintiff lacks the funds

necessary to pay the $350.00 filing fee. The documents further establish that for the six

month period immediately preceding the filing of the instant complaint the average monthly

balance of plaintiff’s prison account was $176.47. Such amount was greater than the average

monthly deposits to plaintiff’s account. Thus, in accordance with the provisions of 28 U.S.C.

§ 1915(b)(1)(A), the plaintiff is required to pay an initial partial filing fee of $35.29.

Accordingly, it is

ORDERED that on or before September 25, 2006, the plaintiff shall forward to the

Clerk of this Court the sum of $35.29 as an initial partial filing fee. The plaintiff is hereby

advised that it is his responsibility to submit the appropriate paperwork to the prison

account clerk for transmission of his funds to this Court for payment of the initial

partial filing fee. If the funds have been dispersed from the plaintiff’s prison account and

are not now available to him, the plaintiff must make arrangements for payment of the

requisite filing fee. 

In accordance with the provisions of 28 U.S.C. § 1915(b)(2), it is hereby 

ORDERED that: 

1. The plaintiff shall make monthly payments of 20 percent of each preceding

month’s income and/or funds credited to his account as payments towards the $350.00 filing

fee. 

2. Those persons having custody of the plaintiff shall forward the above described

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payments from the plaintiff’s account to the Clerk of this Court each time the amount in the

plaintiff’s account exceeds $10.00 until the $350.00 filing fee is paid in full. 

To aid the plaintiff and those persons having custody of the plaintiff in complying

with the requirements of this order, the clerk is DIRECTED to furnish a copy of this order

to the account clerk at the Holman Correctional Facility.

It is further 

ORDERED that except to the extent that payment is required under this order the

plaintiff’s Motion to Proceed In Forma Pauperis (Doc. # 2) is hereby GRANTED.

The plaintiff is cautioned that if he fails to pay the initial partial filing fee in

compliance with this order the case will be dismissed and such dismissal will not be

reconsidered unless exceptional circumstances exist. The plaintiff is advised that if he is

unable to procure the initial partial filing fee within the time allowed by this Court he

must inform the Court of such inability and request an extension of time within which

to file the fee. The plaintiff is further advised that if this case is dismissed for failure

to pay the initial partial filing fee or for any other reason he remains obligated to pay

the $350.00 filing fee. The filing fee will be collected from any funds which become

available to the plaintiff and will be forwarded to this Court by those persons having custody

of the plaintiff pursuant to the directives contained in this order. Moreover, the plaintiff is

hereby informed that notwithstanding payment of the initial partial filing fee this Court

will dismiss this case prior to service of process if the Court determines that the action

is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief in accordance with

the provisions of 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii).

Additionally, the plaintiff is advised that if he files a notice of appeal he will likewise

be required to pay the requisite appellate filing fee which is currently $455.00. Thus, if at

the time the plaintiff files a notice of appeal he has the necessary funds to pay the $455.00

filing fee, he must submit such amount to the Court with the notice of appeal. If the requisite

funds are not available and the plaintiff seeks to proceed in forma pauperis on his appeal, he

must complete an affidavit in support of such request and supply the Court with a certified

copy of his prison account statement for the 6-month period preceding the filing of the

appeal. However, the plaintiff is informed that regardless of this Court’s determination on

his in forma pauperis motion the entire appellate filing fee will be collected from those

persons having custody of him from funds available in his prison account in a manner similar

to that outlined in this order. 

DONE this the 11th day of September, 2006.

 /s/ W. Keith Watkins 

UNITED STATES DISTRICT JUDGE

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NOTICE

INFORMATION TO PRISONERS SEEKING LEAVE TO 

PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915

IN CIVIL ACTIONS BEFORE ANY FEDERAL COURT

In accordance with 1996 amendments to the in forma pauperis (IFP) statute governing

civil actions in federal court, as a prisoner you will be obligated to pay the full filing fee of

$350.00 for a civil action. If you later file an appeal, the filing fee for the appeal is $455.00 and

you will likewise be responsible for payment of such fee. Thus, if at the time you file your

action you have the funds available to pay the requisite filing fee, you must send such amount

to the court with your complaint or notice of appeal and, if appropriate, your IFP application.

If you do not have enough money to pay the full filing fee when your action is filed, you can

file the action without prepayment of the filing fee. However, the court will assess and, when funds

exist, collect an initial partial filing fee. The initial partial filing fee will be equal to 20 percent of

the average monthly deposits to your prison or jail account for the six months immediately preceding

the filing of the lawsuit, or 20 percent of the average monthly balance in your prison or jail account

for that same six month period, whichever is greater. The court will order that you make the initial

partial filing fee out of your prison or jail account or any other funds you have indicated are available

to you. If you fail to submit the initial partial filing fee, your case will be dismissed and the full

amount of the filing fee will be collected from those persons having custody of you.

After the initial partial filing fee has been paid, you will be responsible for paying the balance

of the filing fee. To fulfill your obligation for payment of the full filing fee, each month you will

owe 20 percent of your preceding month’s income toward the balance on the filing fee. Pursuant

to an order of the court, the agency that has custody of you will collect that money and send

payments to the court any time the amount in the account exceeds $10.00. You are advised that

the balance of the filing fee will be collected even if the action is subsequently dismissed for any

reason, summary judgment is granted against you, or you fail to prevail at trial. 

In order to proceed with an action or appeal in forma pauperis you must complete the

affidavit in support of your request to proceed in forma pauperis and supply the court with a certified

copy of your prisoner account statement for the 6-month period preceding the filing of the complaint

or notice of appeal and return it to the court with your cause of action. If you submit an incomplete

form or do not submit a prison or jail account statement with the form, your request to proceed in

forma pauperis will be denied.

Regardless of whether some or all of the filing fee has been paid, the court is required

to screen your complaint and to dismiss the complaint if (1) your allegation of poverty is

untrue; (2) the action is frivolous or malicious; (3) your complaint does not state a claim on

which relief can be granted; or (4) you sue a defendantfor money damages and that defendant

is immune from liability for money damages.

If on three or more occasions you have filed actions or appeals while a prisoner which

were dismissed as frivolous or malicious or for failure to state a claim on which relief can be

granted, then you will be prohibited from bringing any other actions in forma pauperis unless

you are in imminent danger of serious physical injury. In such cases, your request to proceed

in forma pauperis will be denied and you will be required to pay the appropriate filing fee

before proceeding in your civil action.

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