Lawrence G. Spaight v. A. Makowski, Kenneth Zydel, Betty Hoffman, & Frank Irvin, Superintendent, Wende Facility ( 2001 )

252 F.3d 78 (2nd Cir. 2001)

LAWRENCE G. SPAIGHT, PLAINTIFF-APPELLANT,
v.
A. MAKOWSKI, KENNETH ZYDEL, BETTY HOFFMAN, & FRANK IRVIN, SUPERINTENDENT, WENDE FACILITY, DEFENDANTS-APPELLEES.

Docket No. 00-0221
August Term, 2000

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Submitted: May 16, 2001
Decided May 25, 2001

Lawrence G. Spaight, pro se, Attica, N.Y., for plaintiff-appellant.

William Lonergan, Assistant Attorney General, Buffalo, N.Y. (Eliot Spitzer, Attorney General of the State of New York, on the brief), for defendants-appellants.

Before: Feinberg, Van Graafeiland and Sotomayor, Circuit Judges.

Per Curiam

1

Plaintiff-appellant, pro se and incarcerated, moves for the return of the $105 filing fee deducted from his prison trust account for a voluntarily discontinued appeal in which he had sought to proceed in forma pauperis. Motion held in abeyance pending the receipt of plaintiff- appellant's prison trust account statements for the six month period preceding the filing of his notice of appeal. Lawrence G. Spaight ("Spaight"), pro se and incarcerated, moves for the return of the $105 filing fee deducted from his prison trust account for a voluntarily discontinued appeal in which he had sought to proceed in forma pauperis. We write to clarify that the six month period to which 28 U.S.C. § 1915(b)(1) and Leonard v. Lucy, 88 F.3d 181, 186-88 (2d Cir. 1996), refer is the period immediately preceding the filing of the notice of appeal, not preceding the motion for in forma pauperis status. See 28 U.S.C. § 1915(b)(1)(B) ("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 average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal."). Because we erroneously ordered defendants-appellants to provide us with Spaight's prison trust account statements for July though December 2000, the six month period preceding the filing of his motion for in forma pauperis status, we now order that the motion for the return of the filing fee be held in abeyance pending the receipt of Spaight's prison trust account statements for January through June 2000, the six month period preceding the filing of his notice of appeal.