|U.S. Judge R. David Proctor|
Perhaps Proctor deserves high marks for creativity. But when it comes to ethics, and his willingness to uphold the law (as he took an oath to do), he is an abject failure.
We've shown that Proctor cited a case from the Seventh Circuit -- Bryan v. Johnson, 821 F. 2d 455 (7th Cir., 1987) -- in an effort to keep the court from issuing summonses and effecting service, as it is required by law to do for in forma pauperis (IFP) litigants, a status for which two judges (including Proctor) have found we are qualified.
Bryan, of course, is not controlling law in the Eleventh Circuit, which covers Alabama, Georgia, and Florida. But we have found Eleventh Circuit law that is based largely on Bryan and reaches the same conclusion. The case is styled Herrick v. Collins, 914 F. 2d 228, (11th Cir., 1990), and its key finding is as follows:
“We hold, accordingly, that when the district court has granted an in forma pauperis motion and required payment of a partial filing fee, the court MUST issue the summons.”
Proctor granted our IFP motion and required us to pay a partial filing fee, which we did. Is there any excuse then for him to get it wrong on simple law from his own circuit? I can't think of one.
Here is how Proctor screwed up -- and it almost certainly was not accidental. He coined the phrase "partial IFP status" to support his claim that we were not entitled to have court-issued service. There is no such status, under the law; you either are IFP, with no obligation to pay fees, or you are IFP with an obligation to pay a partial fee. Either way, you are an IFP litigant, and the court is required to issue summonses and effect service on your behalf.
This is the third post we have published, with timely citations to law, that shows the actual law on this issue.
What is the purpose of partial payments for some IFP parties? A case styled Irons v. Pennsylvania, 407 F. Supp. 746 (M.D., PA, 1976) explains. It also is spelled out in numerous law-journal articles.
Partial payment plans are designed to help curb the indiscriminate filing of frivolous lawsuits `by weeding out those [actions] where it appears the plaintiff himself has some financial resources but has such a lack of good faith in his action that he is unwilling to make any contribution, however small, towards meeting its filing costs.
What have we learned? There is no such thing as "partial IFP status." Partial IFP payments do exist, and they are designed to discourage the filing of frivolous lawsuits. Once Proctor ordered us to make a partial payment, and we paid it, we had cleared the bar for frivolous lawsuits, and the court had to complete service on our behalf. (Our Rule 60 motion challenging Proctor's rulings is embedded at the end of this post.)
In fact, under the law, Proctor does not have authority to keep that process from happening.
(To be continued)