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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

ROBERTO FRANCO, ANALESE FRANCO, GILBERT CASTILLO, MICHAEL CASTILLO, NANCY CASTILLO, THOMAS BOSTWICK, R.F., A.F. and A.F., Plaintiffs, v. STATE OF MINNESOTA, COUNTY OF RAMSEY, CITY OF ST. PAUL, ST. PAUL POLICE DEPARTMENT, SHAWN SCOVILL, STEVE ANDERSON, PATRICK CHESIER, CRAIG GROMEK, TERRY ECKER, ANDY GUBASH, MIKE HESKI, RICK PORRAS, JOE ROBERTSON, JEREMIAH SIMONSON, TOMMY BOOTH, JASON POLINSKI, and CHRIS MELTON, Defendants.

Civil No. 12-1706 (ADM/JJG)

ORDER

Plaintiffs commenced this action by filing a civil complaint that purports to state various claims against the above-named Defendants. (Docket No. 1.) They did not pay any filing fee for this action, but the Clerk of Court filed their complaint, (provisionally), because one of the Plaintiffs, Analese Franco, has applied for leave to proceed in forma pauperis, (AIFP@). (Docket No. 2.) However, the Court finds that Plaintiffs cannot be granted IFP status at this time, for the reasons discussed below. The Court initially notes that this action is being brought by nine Plaintiffs, but only one of those Plaintiffs (Analese Franco) has applied for IFP status. Because the other eight named Plaintiffs have not applied for IFP status, the Court has no reason to conclude

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that they are indigent and should be excused from paying the filing fee and costs associated with this action. Plaintiffs will be granted IFP status only if all of them are indigent, and unable to pay the filing fee and costs for this action. If all Plaintiffs are seeking IFP status in this case, then each one of them must file his or her own individual IFP application. The Court secondly notes that one of the named Plaintiffs, Roberto Franco, reportedly is in prison at this time.1 Because Roberto Franco is a prisoner, he cannot be granted IFP status unless he complies with 28 U.S.C. ' 1915(b). This statute provides that: (1) Notwithstanding subsection (a), if a prisoner brings a civil action . . . 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 ofB (A) the average monthly deposits to the prisoner=s account; or (B) the average monthly balance in the prisoner=s account for the 6-month period immediately preceding the filing of the complaint . . . (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. (3) In no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action . . . (4) In no event shall a prisoner be prohibited from bringing a civil action ... for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee. According to this statute, which is part of the Prison Litigation Reform Act of 1995,
1

A website maintained by the Minnesota Department of Corrections confirms that Roberto Franco is presently incarcerated at the Minnesota Correctional Facility at Willow River, Minnesota.

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(APLRA@), prisoners who are granted IFP status are not excused from paying the court filing fee altogether, (as is the case for non-prisoner IFP litigants). Instead, a prisoner who is granted IFP status is merely granted permission to pay the filing fee in installments, rather than paying the entire amount in advance. Ashley v. Dilworth, 147 F.3d 715, 716 (8th Cir. 1998) (A[t]he purpose of the [PLRA] was to require all prisoner-litigants to pay filing fees in full, with the only issue being whether the inmate pays the entire filing fee at the initiation of the proceeding or in installments over a period of time@). Section 1915(b)(1) requires prisoner IFP applicants to pay an initial partial filing fee at the outset of the case, and ' 1915(b)(2) requires that the remaining balance be paid in installments through regular deductions from the prisoner=s trust account. The PLRA also specifically requires that prisoners seeking IFP status must submit not only the normal affidavit in support of their claim of indigence, (which is required of all IFP applicants pursuant to ' 1915(a)(1)), but also Aa certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint... obtained from the appropriate official of each prison at which the prisoner is or was confined.@ 28 U.S.C. ' 1915(a)(2). Current certified trust account information is required so that the Court can correctly determine the amount of the initial partial filing fee that the prisoner must pay pursuant to ' 1915(b)(1). Thus, if Plaintiff Roberto Franco elects to apply for IFP status in this case, (rather than paying the full filing fee), he will have to file an IFP application that includes the certified trust account information required by ' 1915(a)(2), and he will also have to pay the initial partial filing fee required by ' 1915(b)(1).2 Plaintiffs will not be granted IFP status in

According to ' 1915(b)(1), (quoted in the text above), that fee will be twenty 3

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this case unless Roberto Franco complies with both of these requirements. In sum, if all of the named Plaintiffs intend to seek leave to proceed IFP in this action, then each of them (with the exception of Analese Franco) must file his or her own individual IFP application. In addition, if Roberto Franco intends to seek IFP status in this case, he must not only file the normal IFP application that is required for NON-prisoner IFP applicants, but he must also submit the prisoner trust account information required by ' 1915(a)(2), and he must pay the initial partial filing fee required by ' 1915(b)(1). If any Plaintiff elects not to seek IFP status, then that Plaintiff must pay the full filing fee and costs of this action.3 Plaintiffs must fully comply with all of the requirements of this order by no later than August 31, 2012. Any Plaintiff who elects to withdraw from this action, rather than complying with the requirements of this order, must file a Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a), by no later than August 31, 2012. If any Plaintiff fails to comply with this order (or voluntarily withdraw) in a timely manner, then the Court will recommend that this entire action be summarily dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). Based upon the above, and upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED that: Plaintiffs must fully comply with all of the requirements of this order by no later than

percent (20%) of the greater of (A) the average monthly deposits to Roberto Franco=s account; or (B) the average monthly balance in his account, during the 6-month period immediately preceding the filing of the complaint. There is only one $350.00 filing fee for this action. If any Plaintiff (or combination of Plaintiffs) pays the full $350.00 filing fee, then any IFP applications filed by other Plaintiffs will become moot.
3

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August 31, 2012, failing which the Court will recommend that this action be summarily dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b).

Dated: August 1, 2012

s/ Jeanne J. Graham JEANNE J. GRAHAM United States Magistrate Judge