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Hutchins v. Bryant

United States District Court, M.D. Georgia, Macon Division

December 15, 2017

ARTIS CECIL HUTCHINS, Plaintiff,
v.
Major DARRELL BRYANT, et al., Defendants.

          ORDER

          Charles H. Weigle United States Magistrate Judge

         Plaintiff Artis Cecil Hutchins, an inmate in Baldwin State Prison in Hardwick, Georgia, filed a pro se civil rights complaint under 42 U.S.C. § 1983. Compl., ECF No. 1. He also moved for leave to proceed without prepayment of the filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). Mot. For Leave to Proceed In Forma Pauperis, ECF No. 5. Previously, Plaintiff's motion for leave to proceed in forma pauperis was granted, and Plaintiff was ordered to pay an initial partial filing fee of $16.50. Order, Nov. 2, 2017.

         On November 22, 2017, Plaintiff filed a motion for an extension of time, asserting that he has submitted the paperwork to have the funds withdrawn from his prison trust fund account, but that the funds have not yet been withdrawn. Mot. for Extension of Time, ECF No. 7. Plaintiff attached to this motion a copy of the withdrawal form that he submitted to prison officials in an attempt to have the partial filing fee paid out of his account. Id. To date, the filing fee has not been paid.

         As it appears that Plaintiff has attempted to comply with the Court's order for him to pay an initial partial filing fee, but has, thus far, been unable to comply through no fault of his own, the Court will allow this action to proceed without prepayment of the initial partial filing fee. Accordingly, Plaintiff's motion for an extension of time (ECF No. 7) is DENIED AS MOOT. Nevertheless, as discussed below, Plaintiff is required to pay the entire $350.00 using the partial payment plan set forth in 28 U.S.C. § 1915(b).

         With regard to Plaintiff's complaint, upon initial review, Plaintiff's Eighth Amendment deliberate indifference to a serious medical need claims against Defendants Major Darrell Bryant and Dr. David Akunwanne will be allowed to proceed. It is RECOMMENDED, however, that his Eighth Amendment claim against Sheriff Craig Peavy be DISMISSED WITHOUT PREJUDICE.

         1. Motion to Proceed In Forma Pauperis

          Any court of the United States may authorize the commencement a civil action, without prepayment of the required filing fee (in forma pauperis), if the plaintiff shows that he is indigent and financially unable to pay the court's filing fee. See 28 U.S.C. § 1915(a). A prisoner wishing to proceed under § 1915 must provide the district court with both (1) an affidavit in support of his claim of indigence, and (2) a certified copy of his prison “trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint.” § 1915(b).

         As noted above, Plaintiff's motion for leave to proceed in forma pauperis was previously granted. Plaintiff is, however, still obligated to eventually pay the full balance of the filing fee, in installments, as set forth in § 1915(b). The district court's filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if the Plaintiff's Complaint is dismissed prior to service.

         For this reason, the CLERK is DIRECTED to forward a copy of this Order to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee, as explained below.

         A. Directions to Plaintiff's Custodian

         Because Plaintiff has now been granted leave to proceed in forma pauperis in the above-captioned case, it is hereby ORDERED that the warden of the institution wherein Plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the CLERK of this Court twenty percent (20%) of the preceding month's income credited to Plaintiff's trust account at said institution until the $350.00 filing fee has been paid in full. The funds shall be collected and withheld by the prison account custodian who shall, on a monthly basis, forward the amount collected as payment towards the filing fee, provided the amount in the prisoner's account exceeds $10.00. The custodian's collection of payments shall continue until the entire fee has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.

         B. Plaintiff's Obligations Upon Release

         In the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he remains obligated to continue making monthly payments to the CLERK toward the balance due until said amount has been paid in full. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit payments. Plaintiff's Complaint may be dismissed if he is able to make payments but fails to do so.

         II. Authority & Standard for ...


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