Local Rule DUCivR 3-2: PROCEEDING WITHOUT PREPAYMENT OR PAYMENT OF FILING FEES
D. Utah — Civil rule
DUCivR 3-2 PROCEEDING WITHOUT PREPAYMENT OR PAYMENT OF FILING FEES
(a) Motion to Proceed In Forma Pauperis.
(1) A Non-Incarcerated Party. A non-incarcerated party may request that the court waive or reduce the filing fee and the cost of service of process. The party must complete and file a Motion to Proceed In Forma Pauperis at the same time as filing the action (e.g., complaint for a civil case, petition for a writ of habeas corpus, or petition for agency review). A form motion is available from the Clerk's Office and on the court's website.
(A) In Forma Pauperis Qualifications. The court may find a party indigent based on the information provided on the form motion or if a party's monthly income is equal to or below 200% of the United States poverty guideline as issued each year in the Federal Register by the Department of Health and Human Services for the 48 Contiguous States and the District of Columbia.
(B) Review of the Motion. A magistrate judge will review the motion to determine whether the party qualifies as indigent and may review whether the complaint meets the conditions of section 3-2(b). The magistrate judge may request additional facts or documentary evidence necessary to make this determination. A party who seeks leave to proceed without prepayment of filing fees must use the procedures, forms, and instructions available on the court's website or from the Clerk's Office and in these rules.
(C) Conditions for Filing the Action. The clerk will file the action under the following conditions:
(i) as of the date of the order if the order waives the filing fee;
(ii) upon payment of the required fee if the order reduces the filing fee; or
(iii) upon payment of the full filing fee if the order denies the motion.
(D) Payment. A party will have 30 days from the date of the order to submit the required fee. Failure to timely pay the filing fee will result in closure of the case without filing the action. When a party attempts to pay the filing fee after the case has been closed, the clerk will accept the payment, open a new case, and file the action as of the date of the payment.
(2) An Incarcerated Party. Under 28 U.S.C. § 1915, an incarcerated party may request authorization to proceed in a civil action without prepayment of the filing fee by filing a Motion to Proceed Without Prepayment of Fees. A form motion is available from the Clerk's Office and on the court's website.
(A) Account Statement and Consent. In addition to the motion, a party must submit:
(i) a certified copy of the incarcerated party's trust fund account statement (or institutional equivalent) from each institution in which the incarcerated party was confined in the 6 months before the motion is filed. The account statement must be submitted with the motion; and
(ii) written consent authorizing the appropriate prison official to collect fees and submit payments to the clerk if the motion is granted. If the motion is granted, the court will send a written consent form to the incarcerated party to sign and return to the court.
(B) Initial Partial Filing Fee. If the motion is granted, the court will assess and, when funds exist, collect an initial partial filing fee of 20% of the greater of:
(i) the average monthly deposits to the account during the six-month period preceding the filing of the action; or
(ii) the average monthly balance in the account for the six-month period preceding the filing of the action.
(C) Monthly Payments. After the initial partial filing fee is paid, the incarcerated party must make monthly payments of 20% of the preceding month's income credited to the account but only if the account balance exceeds $10.
(D) Collecting Payments. The agency having custody of the incarcerated party must forward any payment required under this rule in the proper amount to the clerk until the filing fees are paid.
(E) Conditions for Filing the Action. The clerk will file the action as of the date of the order granting the motion. If the motion is denied, the clerk will notify the incarcerated party of the decision and will file the action only upon receipt of the required fee.
(b) Screening the Case.
(1) At any time, including when reviewing the motion, a magistrate judge may recommend dismissal of the action or a district judge may order dismissal of the action if:
(A) the allegation of indigence is untrue;
(B) the court lacks jurisdiction;
(C) the claims are frivolous or malicious;
(D) it fails to state a claim on which relief can be granted; or
(E) it seeks monetary relief against a defendant who is immune.
(c) Service of Process.
(1) The clerk will not issue a summons to an unrepresented party until directed to do so by the court.
(2) After the motion is granted, or after the case has been screened and a decision has been made to proceed with service, the court will order:
(A) Regarding a non-incarcerated party's action:
(i) the plaintiff to complete and return to the Clerk's Office a summons and a Service of Process form (both available from the Clerk's Office and on the court's website) for each defendant;
(ii) the clerk to issue the summons when the forms are returned; and
(iii) the United States Marshal to serve on each defendant the completed summons, the complaint, and a copy of the order; or
(iv) if the plaintiff fails to submit the forms as directed, the action may be dismissed.
(B) Regarding an incarcerated party's action:
(i) each defendant to waive service of process, under Rule 4 of the Federal Rules of Civil Procedure; or
(ii) the United States Marshal to serve on each defendant the completed summons, the complaint, and a copy of the order.