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Filing Fee Refund Period Discussed
The plaintiff voluntarily discontinued his appeal and sought the return of his filing fee. At 79: "We write to clarify that the six month period to which 28 U.S.C. § 1915(b)(1) and Leonard v. Lacy, 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." Because the court ordered records from the wrong time period, it holds plaintiff's motion in abeyance pending getting the right records. See: Spaight v. Makowski, 252 F.3d 78 (2nd Cir. 2001).
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Related legal case
Spaight v. Makowski
| Year | 2001 |
|---|---|
| Cite | 252 F.3d 78 (2nd Cir. 2001) |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
Spaight v. Makowski, 252 F.3d 78 (2d Cir. 05/25/2001)
[1] U.S. Court of Appeals, Second Circuit
[2] Docket No. 00-0221
[3] 252 F.3d 78
[4] May 25, 2001
[5] LAWRENCE G. SPAIGHT, PLAINTIFF-APPELLANT,
v.
A. MAKOWSKI, KENNETH ZYDEL, BETTY HOFFMAN, & FRANK IRVIN, SUPERINTENDENT, WENDE FACILITY, DEFENDANTS-APPELLEES.
[6] Lawrence G. Spaight, pro se, Attica, Ny, for plaintiff-appellant. William Lonergan, Assistant Attorney General, Buffalo, NY (Eliot Spitzer, Attorney General of the State of New York, on the brief), for defendants-appellants.
[7] Before: Feinberg, Van Graafeiland and Sotomayor, Circuit Judges.
[8] The opinion of the court was delivered by: Per Curiam
[9] Submitted: May 16, 2001
[10] 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.
[11] 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.
[12] 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.
[1] U.S. Court of Appeals, Second Circuit
[2] Docket No. 00-0221
[3] 252 F.3d 78
[4] May 25, 2001
[5] LAWRENCE G. SPAIGHT, PLAINTIFF-APPELLANT,
v.
A. MAKOWSKI, KENNETH ZYDEL, BETTY HOFFMAN, & FRANK IRVIN, SUPERINTENDENT, WENDE FACILITY, DEFENDANTS-APPELLEES.
[6] Lawrence G. Spaight, pro se, Attica, Ny, for plaintiff-appellant. William Lonergan, Assistant Attorney General, Buffalo, NY (Eliot Spitzer, Attorney General of the State of New York, on the brief), for defendants-appellants.
[7] Before: Feinberg, Van Graafeiland and Sotomayor, Circuit Judges.
[8] The opinion of the court was delivered by: Per Curiam
[9] Submitted: May 16, 2001
[10] 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.
[11] 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.
[12] 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.