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John Rushing v. Gary andrew Gerst

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS


April 19, 2011

JOHN RUSHING, PLAINTIFF,
v.
GARY ANDREW GERST, PHYSICIAN ASSISTANT, PINCKNEYVILLE CORRECTIONAL CENTER, DEFENDANT.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Plaintiff John Rushing's pro se Motion for Leave to Proceed in Forma Pauperis (Doc. 9). Previously, the Court reserved ruling on the instant motion so that Rushing could supplement the Court with his prisoner trust fund account statements, which he has since done. See Docs. 17, 19.

A federal court may permit an indigent party to proceed without pre-payment of fees. 28 U.S.C. § 1915(a)(1) (2006). Nevertheless, a court can deny a qualified plaintiff leave to file in forma pauperis or can dismiss a case if the action is clearly frivolous or malicious. § 1915(e)(2)(B)(i).

Here, as the Court mentioned in its Memorandum and Order (Doc. 12) of March 11, 2011, it is clear from Rushing's declaration that he is indigent. Said declaration has since been bolstered by the contents of Rushing's prisoner trust fund account statements.

That said, Rushing has already paid the $350.00 filing fee in this matter. Furthermore, Rushing is not currently liable for any further costs, and it is unlikely that he will be liable for any such costs in the near future. For these reasons, at this time, the Court fails to see the need for Rushing to proceed in forma pauperis and Rushing has not so argued. Accordingly, the Court DENIES the instant motion (Doc. 9) without prejudice. The Court makes no finding as to whether Rushing's claims are frivolous or malicious.

IT IS SO ORDERED.

J. Phil Gilbert

20110419

© 1992-2011 VersusLaw Inc.



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