United States District Court, E.D. Wisconsin
TOMMIE L. CARTER, Plaintiff,
TORRIA VANBUREN and CO DEREK SCHOUTEN, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
a prisoner proceeding pro se, filed a complaint in
the above-captioned action. Plaintiff has also filed a motion
for leave to proceed in forma pauperis. (Docket #2
and #6). The total cost of filing a civil action is $400.00,
which includes the $350.00 statutory filing fee and a $50.00
administrative fee. However, the $50.00 administrative fee
does not apply to persons granted in forma pauperis
status. Pursuant to the Prison Litigation Reform Act
(“PLRA”), a prisoner plaintiff proceeding in
forma pauperis is required to pay the statutory filing
fee of $350.00 for any civil action. See 28 U.S.C.
the PLRA, the court must assess an initial partial filing fee
of twenty percent of the average monthly deposits to the
plaintiff's account or average monthly balance in the
plaintiff's prison account for the six-month period
immediately preceding the filing of the complaint, whichever
is greater. Id. After the initial fee is paid, the
prisoner must make monthly payments of twenty percent of the
preceding month's income until the filing fee is paid in
full. Id. § 1915(b)(2). “The agency
having custody of the prisoner shall forward payments from
the prisoner's account to the Clerk of the Court each
time the amount in the account exceeds $10 until the filing
fees are paid.” Id.
filed a certified copy of his prisoner trust account
statement for the six-month period immediately preceding the
filing of the complaint as required under 28 U.S.C. §
1915(a)(2). (Docket #8). A review of this information reveals
that, for the six-month period immediately preceding the
filing of the instant complaint, the average monthly deposit
in Plaintiff's prison account was zero and the average
monthly balance to the account was zero. Thus, Plaintiff has
neither assets nor means to pay the initial partial filing
a prisoner will not be prohibited from bringing a civil
action for the reason that he lacks the assets and means to
pay an initial partial filing fee. 28 U.S.C. §
1915(b)(4). Therefore, Plaintiff will be granted a waiver of
payment of the initial partial filing fee in this case.
However, he is still obligated to pay the full filing fee
pursuant to the statutory formula set forth in 28 U.S.C.
§ 1915(b)(2). See Id. § 1915(b)(1).
PLRA also provides that if a prisoner files more than three
actions or appeals which are dismissed as frivolous,
malicious, or for failure to state a claim upon which relief
can be granted, the prisoner will be prohibited from bringing
any other actions in forma pauperis, unless the
prisoner is in imminent danger of serious physical injury. 28
U.S.C. § 1915(g). In the event that his action is later
dismissed for any of the above reasons, it will have an
impact on the prisoner's ability to bring other actions
in forma pauperis. This analysis of the complaint is
not undertaken by the court until after the initial partial
filing fee is paid. Accordingly, Plaintiff will be afforded
an opportunity to voluntarily dismiss this action to avoid
incurring a “strike” under Section 1915(g).
to Plaintiff: If you do not wish to proceed with this action
to avoid incurring a “strike” under Section
1915(g), you must notify the court by filing a letter with
the Clerk of Court on or before January 25, 2017, stating
that you do not wish to prosecute this civil action. If you
write such a letter, this case will be dismissed without
prejudice. Voluntary dismissal will not be counted as a
“strike” under Section 1915(g).
IT IS HEREBY ORDERED that, pursuant to 28 U.S.C. §
1915(b)(4), Plaintiff will not be required to pay an initial
partial filing fee. If Plaintiff fails to file a notice of
dismissal by January 25, 2017, the court will review the
complaint to determine whether the action is frivolous or
malicious and whether the complaint states a claim upon which
relief can be granted. If the complaint does not meet this
standard, the action will be dismissed; and
FURTHER ORDERED that Plaintiff's motion for an order
directing that the initial partial filing fee be withdrawn
from his release account (Docket #7) be and the same is
hereby DENIED as moot;
FURTHER ORDERED that a copy of this order be sent to the
warden of the ...