United States District Court, D. Minnesota
Humberto Castillo-Alvarez, Reg. No. 235086, MCF-Stillwater,
970 Pickett Street North, Bayport, MN 55003, pro se.
MEMORANDUM OPINION AND ORDER ON MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION
R. TUNHEIM Chief Judge
Juan Humberto Castillo-Alvarez, currently a state prisoner,
filed a civil rights action under 42 U.S.C. § 1983 on
September 7, 2016. (Compl., Sept. 7, 2016, Docket No. 1.)
Instead of paying the filing fee, Castillo-Alvarez filed an
application to proceed in forma pauperis
(“IFP”). (IFP Appl., Sept. 7, 2016, Docket No. 2;
see also Second IFP Appl., Sept. 7, 2016, Docket No.
IFP application is subject to the requirements of 28 U.S.C.
§ 1915, under which prisoners granted IFP status are not
excused altogether from paying the court's statutory
filing fee. § 1915(b)(1). Rather, if funds exist, a
prisoner granted IFP status must pre-pay an initial portion
of the filing fee, which is calculated based on either the
average monthly deposits or the average monthly balance in
the prisoner's account. Id. Then, the statute
provides that the remainder of the filing fee be deducted
from the prisoner's account in installments over time.
§ 1915(b)(2). In order for the Court to calculate the
amount due as an initial filing fee, the IFP application must
include a “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.”
did attach a financial record to his IFP application, but
this was a “Compensation Statement, ” for
September 1, 2016, showing compensation and deductions for
what the Court presumes to be one pay period as well as
year-to-date figures. (IFP Appl, Ex. 1.) But Castillo-Alvarez
did not include a “certified copy of the trust fund
account statement (or institutional equivalent) . . . for the
6-month period immediately preceding the filing of the
complaint.” Without seeing details of deposits into and
balances of Castillo-Alvarez's prison account for the
past six months, the Court cannot calculate the initial
filing fee that is due.
November 10, 2016, United States Magistrate Judge Janie S.
Mayeron ordered Castillo-Alvarez to provide, within 30 days,
“an amended IFP application that satisfies the
requirements of 28 U.S.C. § 1915(a)(2) and pay the
initial partial filing fee required by 28 U.S.C. §
1915(b)(1).” (Order at 4, Nov. 10, 2016, Docket No. 7.)
After Castillo-Alvarez failed to comply, on December 21,
2016, United States Magistrate Judge Leo I.
Brisbois issued a Report and Recommendation
(R&R) recommending summary dismissal for failure to
prosecute pursuant to Fed.R.Civ.P. 41(b). (R&R at 2, Dec.
21, 2016, Docket No. 9.)
the issuance of the R&R and within the fourteen-day
window for objections available under Fed.R.Civ.P. 72(b)(2)
and D. Minn. LR 72.2(b)(1), Castillo-Alvarez mailed a
handwritten letter to the Court - which the Court construes
as an objection to the R&R - requesting that the Court
“accept his filing fee” and explaining that
Castillo-Alvarez has limited English proficiency and little
understanding of “the rules and procedures of the
court.” (Obj. to R&R at 1, Jan. 3, 2017, Docket No.
10.) The letter states that Castillo-Alvarez
“misinterpreted the court's request to proceed in
forma pauperis. Plaintiff can afford $5.00 dollar filing fee.
But he is unable to afford the full Plaintiff docketing fee
as request[ed] for filing.” (Id. at 2.) Along
with the objections, Castillo-Alvarez sent five dollars to
the Court. (Id. at 3.)
Castillo-Alvarez did not strictly comply with the Magistrate
Judge's Order directing him to provide an amended IFP
application, because Castillo-Alvarez has provided some money
to pay the initial filing fee and Castillo-Alvarez
misunderstood the Magistrate Judge's Order dated November
30, 2016, the Court finds that it is in the interests of
justice to allow Castillo-Alvarez an additional thirty (30)
days to attempt to provide the necessary information.
on the foregoing, and all the files, records, and proceedings
herein, the Court SUSTAINS Castillo-Alvarez's Objections
to the Report and Recommendation [Docket No. 10]. The Court
REJECTS the Report and Recommendation of the Magistrate Judge
[Docket No. 9] and REMANDS for further proceedings consistent
with this Order. Accordingly, IT IS HEREBY ORDERED that:
Within thirty (30) days of the date of this Order,
Castillo-Alvarez send to the Court a certified copy of
the trust fund account statements (or institutional
equivalent) for the six months before he filed the
Complaint. Castillo-Alvarez should submit trust fund
account statements, not compensation statements, if
the Court receives the proper documentation, the Court will
notify Castillo-Alvarez of the remaining amount of the
initial filing fee due, if any. The five dollars ($5.00)
Castillo-Alvarez has already provided will count toward this
initial filing fee.
Castillo-Alvarez fails to provide the necessary financial
documentation within thirty (30) days, the Complaint will be
dismissed without prejudice for ...