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Smith v. Corporate State of Georgia

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

July 3, 2019

LAZARTO SMITH, Petitioner,
v.
CORPORATE STATE OF GEORGIA, et al., Respondents.

          ORDER

          MARC T. TREADWELL, UNITED STATES DISTRICT JUDGE.

         Petitioner Lazarto Smith, an inmate currently confined in the Riverbend Correctional Facility in Milledgeville, Georgia, has filed a petition for writ of mandamus. Mot. for Writ of Mandamus, ECF No. 1. He has also filed a motion to proceed in this action without prepayment of the Court's filing fee. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2. The Court now GRANTS Petitioner's motion to proceed in forma pauperis. On preliminary review of Petitioner's mandamus petition, however, the Court DISMISSES the petition WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted and as frivolous.

         I. Motion for Leave 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.” 28 U.S.C. § 1915(a)(1)-(2).

         As permitted by this provision, Petitioner has moved for leave to proceed in forma pauperis in this case. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2. Because Petitioner's submissions show that Petitioner is unable to prepay any portion of the Court's filing fee. Therefore, the Court now GRANTS Petitioner's motion for leave to proceed in forma pauperis. Petitioner 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 thus, Petitioner must pay it in full even if his petition is dismissed prior to service.

         For this reason, the Court DIRECTS the CLERK to forward a copy of this order to the business manager of the facility where Petitioner is incarcerated so that the business manager may begin making withdrawals from his account, as explained below.

         A. Directions to Petitioner's Custodian

         Because the Court has now granted Petitioner leave to proceed in forma pauperis in the above-captioned case, the Court further ORDERS that the warden of the institution wherein Petitioner 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 Petitioner's trust account at said institution until the $350.00 filing fee has been paid in full. The prison account custodian shall collect and withhold the funds and 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 shall continue with the collection of payments until the entire fee has been collected, even if the Court dismisses Petitioner's lawsuit or grants judgment against him before the custodian has collected the full filing fee.

         B. Petitioner's Obligations Upon Release

         An individual's release from prison does not excuse his prior noncompliance with the provisions of the PLRA. Thus, in the event that the State of Georgia or any county thereof hereafter releases Petitioner from its custody, Petitioner shall remain obligated to pay those installments justified by the income to his prisoner trust account while he was still incarcerated. The Court hereby authorizes collection from Petitioner of any balance due on these payments by any means permitted by law in the event Petitioner is released from custody and fails to remit such payments. The Court may dismiss Petitioner's petition if he is able to make payments but fails to do so or if he otherwise fails to comply with the provisions of the PLRA.

         II. Preliminary Review of the Petition

         A. Standard of Review

         Because Petitioner is a prisoner proceeding under section 1983 and seeks to proceed in forma pauperis in this action, his complaint is subject to screening under 28 U.S.C. §§ 1915(e) & 1915A which require a district court to dismiss any complaint that is frivolous, malicious, or fails to state a claim upon which relief may be granted. When conducting a preliminary review, the district court must accept all factual allegations in the complaint as true and make all reasonable inferences in the plaintiff's favor. See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004) (stating that allegations in the complaint must be viewed as true). The Court also holds pro se “to a less stringent standard than pleadings drafted by attorneys, ” and thus, “liberally construe[s]” a pro se complaint. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam). The district court, however, cannot allow a plaintiff to litigate frivolous, conclusory, or speculative claims. As part of the preliminary screening, the court shall dismiss a complaint, or any part thereof, prior to service, if it is apparent that the plaintiff's claims are frivolous or if his allegations fail to state a claim upon which relief may be granted - i.e., that the plaintiff is not entitled to relief based on the facts alleged. See 28 U.S.C. § 1915(e); 28 U.S.C. § 1915A.

         To state a viable claim, the complaint must include “enough factual matter” to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). There must also be “enough facts to raise a reasonable expectation that discovery will reveal evidence” to prove the claim. Id. at 556. The claims cannot be speculative or based solely on beliefs or suspicions; each must be supported by allegations of relevant and discoverable fact. Id. Thus, neither legal conclusions nor a recitation of legally relevant terms, standing alone, is sufficient to survive preliminary review. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'”) (quoting Twombly, 550 U.S. at 555). Claims without an arguable basis in law or fact ...


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