United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE.
ELIZABETH E. FOOTE UNITED STATEST DISTRICT JUDGE.
has filed a "Motion to Enjoin," seeking to prevent
the Louisiana Department of Corrections "from taking
more than 20% of funds above $10.00 in one thirty (3) [sic]
day-period" in order to pay the filing fee for his
appeal. [Record Document 75]. For the reasons given below,
the motion is DENIED.
this Court granted summary judgment to Defendants, Plaintiff
filed a notice of appeal and moved to proceed in forma
pauperis ("IFP"). [Record Documents 63, 65, and
67]. This Court granted the motion. [Record Document 71]. Per
the requirements of 28 U.S.C. § 1915(b), the Court
assessed an initial partial filing fee of $20.83 and ordered:
The appellant is required to make payments of 20% of the
preceding month's income credited to the appellant's
prison account until appellant has paid the total filing fee
of $505.00. The agency having custody of the appellant shall
collect this amount from the trust fund or institutional
equivalent, when funds are available and when permitted by 28
U.S.C. § 1915(b)(2), and forward it to the district
[Id. at 1]. The Court issued this order on March 12,
2019 and forwarded it to the prison accounts officer at
Raymond Laborde Correctional Center on the same day.
[Id.]. The docket sheet indicates that the Court
received payments of $20.83 and $26.00 on May 1, 2019.
Plaintiff complains that "[t]he collection of more than
20% of funds received monthly above $10.00 simultaneously
within the same 30-day period for court costs rather than
sequentially resulting in debt holds deprives plaintiff
Wesley of his property without due process and contrary to 28
U.S.C. § 1915(b)(2) (1996); and my first amendment right
to access to courts." [Record Document 75 at 1].
misunderstands the IFP procedures in the Prison Litigation
Reform Act ("PLRA"). Under the PLRA:
(b)(1) [I]f a prisoner brings a civil action or files an
appeal in forma pauperis, the prisoner shall be required to
pay the full amount of a filing fee. The court shall assess
and, when funds exist, collect, as a partial payment of any
court fees required by law, an initial partial filing fee of
20 percent of the greater of-
(A) the average monthly deposits to the prisoner's
(B) the average monthly balance in the prisoner's account
for the 6-month period immediately preceding the filing of
the complaint or notice of appeal.
(2) After 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)(1)-(2). This provision imposes two
separate payment requirements. First, an inmate proceeding
IFP must pay the initial partial filing fee as soon as funds
are available in his or her account. Hatchet v.
Nettles, 201 F.3d 651, 653 (5th Or. 2000) (per curiam)
(citing Henderson v. Norris, 129 F.3d 481, 484 (8th
Or. 1997) (per curiam); McGore v. Wrigglesworth, 114
F.3d 601, 606 (6th Or. 1997), overruled on other grounds
by Jones v. Bock, 549 U.S. 199, 203 (2007)). Because
"the ten-dollar rule of § 1915(b)(2) is applicable
only after the initial partial filing fee is paid,"
id. (citing McGore, 114 F.3d at 606), all
of the funds in an inmate's account may be withdrawn to
satisfy the initial partial filing fee. Once that fee has
been paid, the monthly payments to satisfy the remainder of
the full filing fee must begin; it is those deductions that
are limited to twenty percent of the previous month's
income. Id. at 653-54 (citing McGore, 114
F.3d at 607). Because the two types of payment are separate,
the statute does not support Plaintiffs reading that monthly
withdrawals to satisfy the remainder of the full filing fee
may only begin in the month following the payment of the
initial partial filing fee. The statute merely indicates that
funds should be attributed first to the initial partial
filing fee and then to the remainder of the filing fee.
other words, once IFP status is granted, an inmate must make
the payment described in § 1915(b)(1) (20% of the
account balance or deposits for the previous six months) and
the payment described in § 1915(b)(2) (20% of the
previous month's income on a monthly basis). The $20.83
represents the initial partial filing fee (pursuant to §
1915(b)(1)). [Record Document 71 at 1]. The $26.00, then,
must represent a monthly payment (pursuant to §
1915(b)(2)). The Court does not know why the Department of
Corrections waited until May 1, 2019 to debit Plaintiffs
account for the initial partial filing fee even though the
order demanding that fee was issued on March 12, 2019, but
doing so did not violate the IFP provisions under which
Plaintiff is proceeding.
Plaintiff has not been deprived of access to die courts. His
appeal is ongoing, and the Fifth Circuit has made it clear
that "[t]he obligation to pay filing fees, over time if
necessary, is not an unconstitutional denial of access to the