United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING PLAINTIFF'S MOTION
FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE AND
ORDERING PLAINTIFF TO FILE A COMPLETE COMPLAINT
JOSEPH UNITED STATES MAGISTRATE JUDGE
Jonathan Lee Saldaña, a Wisconsin state prisoner who
is representing himself, filed a civil rights complaint under
42 U.S.C. §1983. This matter is before me on
Saldaña's motion to proceed without prepayment of
the filing fee (Docket # 2) and for screening of his
complaint (Docket # 1).
Motion to Proceed without Prepayment of the Filing Fee
Prison Litigation Reform Act gives courts discretion to allow
prisoners to proceed with their lawsuits without prepaying
the $350 filing fee, as long as they comply with certain
requirements. 28 U.S.C. §1915. One of those requirements
is that the prisoner pay an initial partial filing fee. On
December 9, 2016, I ordered Saldaña to pay an initial
partial filing fee of $16.70. Saldaña paid that fee on
January 10, 2017. As such, I will grant his motion to proceed
without prepayment of the full filing fee; he must pay the
remainder of the filing fee as set forth at the end of this
reviewing Saldaña's complaint, I noted that
Saldaña had a second case: Case No. 16-CV-1573, which
he filed two days prior to this case and over which Judge JP
Stadtmueller was presiding. The Case No. 16-CV-1573 complaint
is nearly identical to the complaint in this case. The only
difference is that pages 2 and 3 of the complaint in this
case are not included in the Case No. 16-CV-1573 complaint.
December 9, 2016, the plaintiff sent a letter to the court,
which was docketed in Case No. 16-CV-1573 (Docket # 8.) In
that letter, Saldaña explained that he had filed his
complaint on November 23, 2016. Shortly thereafter, he
noticed that some of the pages were missing, so he gave the
complete complaint (with the missing pages) to prison staff
to file. However, he did so without explaining his intentions
to the court, so when the court received the complete
complaint, it assumed it was a different complaint
and opened up a second case (this case, Case No. 16-CV-1577).
The fact that the second filing was intended only to
replace the first filing was not discovered until I
began to review the complaint in order to screen it pursuant
to 28 U.S.C. §1915A.
January 9, 2017, Judge Stadtmueller dismissed Case No.
16-CV-1573 because plaintiff failed to pay the initial
partial filing. Thus, for practical purposes, we are
currently in the position we should be: namely,
Saldaña has a single case pending. The only problem is
that, in Case No. 16-CV-1573, Saldaña indicated that
he did not want a U.S. Magistrate Judge to preside over his
case. He has not filed such a refusal in this action;
however, that is likely because he did not intend to have
two different cases pending. Accordingly, I will
order Saldaña to file a consent/refusal form in this
case. If he does not want a U.S. Magistrate Judge to preside
over his case, the clerk of court will reassign this case to
a U.S. District Court Judge.
in reviewing Saldaña's complaint, I noted that
page 5 of the complaint ends mid-sentence and is not
continued on page 6. Thus, it appears that plaintiff's
complaint is still missing pages. I will not screen
an incomplete complaint. I will give plaintiff time to file a
complete complaint. Before he submits his complaint to prison
staff for filing, he should carefully review the entire
document to ensure that it is complete.
THEREFORE, IT IS ORDERED that plaintiff's motion for
leave to proceed without prepaying the full filing fee
(Docket # 2) is GRANTED.
ALSO ORDERED that the warden of the institution where
plaintiff is confined, or his designee, shall collect from
plaintiff's prisoner trust account the $333.00 balance of
the filing fee by collecting monthly payments from
plaintiff's prison trust account in an amount equal to
20% of the preceding month's income credited to the
prisoner's trust account and forwarding payments to the
Clerk of Court each time the amount in the account exceeds
$10 in accordance with 28 U.S.C. § 1915(b)(2).
Payments shall be clearly identified by case name and number.
FURTHER ORDERED that plaintiff shall complete and submit the
enclosed form regarding magistrate jurisdiction by February
ALSO ORDERED that plaintiff shall submit a complete complaint
by February 3, 2017. If plaintiff fails to submit a complete
complaint by the deadline, the court may ...