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

Second Circuit

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

252 F.3d 78, 2001 U.S. App. LEXIS 10989

CourtCourt of Appeals for the Second Circuit

DecidedMay 25, 2001

Docket2000

StatusPublished

This text of 252 F.3d 78 (Lawrence G. Spaight v. A. Makowski, Kenneth Zydel, Betty Hoffman, & Frank Irvin, Superintendent, Wende Facility) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lawrence G. Spaight v. A. Makowski, Kenneth Zydel, Betty Hoffman, & Frank Irvin, Superintendent, Wende Facility, 252 F.3d 78, 2001 U.S. App. LEXIS 10989 (2d Cir. 2001).

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Opinion

PER CURIAM:

Lawrence G. Spaight (“Spaight”), pro se and incarcerated, moves for the return of the $105 filing fe.e deducted from his pris *79 on 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. 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. 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-appellees 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.

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PER CURIAM:

Lawrence G. Spaight (“Spaight”), pro se and incarcerated, moves for the return of the $105 filing fe.e deducted from his pris *79 on 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. 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. 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-appellees 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.

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252 F.3d 78, 2001 U.S. App. LEXIS 10989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawrence-g-spaight-v-a-makowski-kenneth-zydel-betty-hoffman-frank-ca2-2001.

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