Monty Shelton v. United States

Case: 13-5057 Document: 20 Page: 1 Filed: 06/27/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MONTY SHELTON,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5057
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-0519, Judge Francis M. Allegra.
______________________
ON MOTION
______________________
PER CURIAM.
ORDER
Federal prisoner Monty Shelton has appealed from an
adverse judgment of the United States Court of Federal
Claims. He sought waiver of the docketing fee for an
appeal, which was denied by this court on April 26, 2013
on the ground that such fees could not be waived pursu-
ant to 19 U.S.C. § 1915(b)(1). That statute provides “if a
prisoner brings a civil action or files an appeal in forma
Case: 13-5057 Document: 20 Page: 2 Filed: 06/27/2013
2 MONTY SHELTON v. US
pauperis, the prisoner shall be required to pay the full
amount of a filing fee.”
In accordance with this court’s order directing the
agency with custody of Mr. Shelton to forward an initial
partial payment of 20% of the greater of (a) the average
monthly deposits to the prisoner’s account or (b) the
average monthly balance in the prisoner’s account for the
six-month period immediately preceding the filing of the
notice of appeal, see 28 U.S.C. § 1915(b)(1), $1.03 was
deduced from Mr. Shelton’s prisoner account as payment
for the initial partial payment. Mr. Shelton now seeks
“clarification” and a refund of the $1.03 that was with-
drawn from his prisoner account.
The motion is denied. The action taken by the custo-
dian of Mr. Shelton’s prisoner account was authorized by
§ 1915(b)(1), which mandates an initial partial payment
“when funds exist.” See Whitfield v. Scully, 241 F.3d 264,
272 (2d Cir. 2001) (noting that “[s]ection 1915(b) provides
that “the prisoner shall be required to pay the full amount
of a filing fee,” and mandates collection, when funds exist,
of an initial partial filing fee equal to 20 percent of the
average monthly balances or deposits (whichever is
greater) as shown on the prisoner account statement.”);
Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997) (“Section
1915 requires a modest initial filing fee before a case may
proceed[.]”). Here, there is no question that funds existed
at the time of withdrawal, and Mr. Shelton does not
contest the calculation of $1.03 as the proper amount.
Contrary to Mr. Shelton’s suggestion, there is no re-
quirement that his account exceed $10 before his initial
partial payment is made; that limitation is only imposed
on subsequent monthly payments. See 28 U.S.C.
1915(b)(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
Case: 13-5057 Document: 20 Page: 3 Filed: 06/27/2013
MONTY SHELTON v. 3
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.”).
To the extent Mr. Shelton does not wish to have his
account withdrawn for purposes of paying the filing fee
once his account exceeds $10, he may submit a motion to
withdraw his appeal.
Accordingly,
IT IS ORDERED THAT:
The motion for “clarification” and a refund is denied.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel O’Toole
Clerk