United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, UNITED STATES DISTRICT JUDGE.
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.
Motion for Leave to Proceed In Forma
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. §
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.
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.
Directions to Petitioner's Custodian
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.
Petitioner's Obligations Upon Release
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.
Preliminary Review of the Petition
Standard of Review
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.
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 ...