U.S. v. Feist, Case No. 1:08-mc-006.

• Decision Date: 28 January 2009
• Docket Number: Case No. 1:08-mc-006.
• Citation: 594 F.Supp.2d 1101
• Parties: UNITED STATES of America, Plaintiff, v. Sebastian Joseph FEIST, Defendant.
• Court: U.S. District Court — District of North Dakota

594 F.Supp.2d 1101

UNITED STATES of America, Plaintiff, v. Sebastian Joseph FEIST, Defendant.

Case No. 1:08-mc-006.

United States District Court, D. North Dakota, Southwestern Division.

January 28, 2009.

Clare R. Hochhalter, U.S. Attorney's Office, Bismarck, ND, for Plaintiff.

Sebastian Joseph Feist, Florence, CO, pro se.

ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDEATION

DANIEL L. HOVLAND, Chief Judge.

The defendant, Sebastian Joseph Feist, submitted an application requesting to proceed in forma pauperis to appeal an adverse order in this action. See Docket No. 11. On January 12, 2009, the Court granted Feist's request to proceed in forma pauperis and assessed an initial filing fee of $13.40 payable to the Clerk of Court. See Docket No. 13. The Court ordered that Feist's remaining payments be paid in an amount of 20% of each future month's income until the statutory filing fee of $455.00 is paid in full. See Docket No. 13. On January 20, 2009, Feist filed a motion to reconsider the Court's order for payment of the filing fee. See Docket No. 15. Feist contends that "he needs $70.00 a month (sic) for the phone, and personal items. Paying even a partial amount is unreasonable." See Docket No. 15.

Pursuant to 28 U.S.C. § 1915(b), Feist can be required to pay the statutory filing fee of $455.00 for this appeal. 28 U.S.C. § 1915(b)(1) requires the prisoner to pay an initial partial filing fee of 20% of the greater of (1) the average monthly deposits to the prisoner's account, or (2) the average monthly balance in the prisoner's account for the six months immediately preceding the filing of the notice of appeal. Following the initial partial payment, the prisoner is required to make monthly payments in an amount of 20% of each future month's income until the statutory filing fee is paid in full.

It is clear and undisputed that 28 U.S.C. § 1915 permits district courts to require the payment of full filing fees, to waive all fees, or to impose partial filing fees under the in forma pauperis statute. It is well-established that the district court has the authority and discretion to require prisoners to pay partial filing fees, and the court may consider the defendant's own economic choices about how to spend his money as between the filing fee and comforts purchased in the prison commissary. See Olivares v. Marshall, 59 F.3d 109 (9th Cir.1995); Lumbert v. Illinois Dept. of Corrections, 827 F.2d 257 (7th Cir.1987). An order requiring a pro se prisoner to pay a $5.16 initial partial filing fee to proceed in forma pauperis in a civil rights action was found to be proper under the Prison Litigation Reform Act, even though the prisoner had a negative balance in his inmate spending account, since he had monthly deposits to the account averaging $25.78. Moore v. Bachmeier, 315 F.Supp.2d 1029, 1031 (D.N.D.2004).

The Court is mindful of the fact that no prisoner should be denied the opportunity to pursue a civil rights action in federal court. The judicial branch should never erect unduly onerous obstacles to the pursuit of a lawsuit. Bounds v. Smith, 430 U.S. 817, 822-823, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). However, "[r]equiring the payment of fees according to a plaintiffs ability to pay serves the in forma pauperis statute's goal of granting equal access to the courts regardless of economic status. At the same time, requiring a partial payment within a plaintiffs ability to pay serves the dual aims of defraying some of the judicial costs of litigation and screening out frivolous claims." Olivares, 59 F.3d at 111. Thus, reasonable costs may be imposed on persons who choose to pursue lawsuits in federal court. The decision to impose partial filing fees is an appropriate exercise of authority under 28 U.S.C. § 1915. In re Williamson, 786 F.2d 1336, 1339 (8th Cir.1986).

Sebastian Feist provided a "Certificate of Inmate Account and Assets" which indicated that the...