United States District Court, E.D. Wisconsin
DEWHITE D. JOHNSON, Plaintiff,
DONALD STONEFELD, MARY SAUVEY, J. ZWEIRS, PETE ERIKSON, BRIAN FOSTER, PRAPTI KUBER, SUE PETERS, OFFICER EVERSON, and JODENE PERTTU, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
a prisoner proceeding pro se, filed a complaint in
the above captioned action. (Docket #1). Plaintiff has also
filed a petition for leave to proceed in forma
pauperis. (Docket #2). 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, which amended the in forma pauperis
statute, the court must assess an initial partial filing fee
of twenty percent of the average monthly deposits to
Plaintiff's account or average monthly balance in
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,
Plaintiff must make monthly payments of twenty percent of the
preceding month's income until the filing fee is paid in
full. 28 U.S.C. § 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). A review of this information reveals that, for
the six-month period immediately preceding the filing of the
instant complaint, both the average monthly deposit and
average monthly balance to the account were $0.00. Because
Plaintiff is totally destitute, the Court will waive payment
of the initial partial filing fee in this case. Id.
§ 1915(b)(4) (“In no event shall a prisoner be
prohibited from bringing a civil action or appealing a civil
or criminal judgment for the reason that the prisoner has no
assets and no means by which to pay the initial partial
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. Even though the Court has waived payment
of the initial partial filing fee, it will nevertheless
afford Plaintiff an opportunity to voluntarily dismiss this
action to avoid incurring a “strike” under §
to Plaintiff: If you do not wish to proceed with
this action to avoid incurring a “strike” under
§1915(g), you must notify the court by filing a letter
with the Clerk of Court on or before July 13,
2018, 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 §1915(g).
the Court will address Plaintiff's pending motion to pay
the filing fee from his release account. (Docket #4).
“A release account is a restricted account maintained
by the Wisconsin Department of Corrections to be used upon
the prisoner's release from custody upon completion of
his sentence.” Wilson v. Anderson, No.
14-C-798, 2014 WL 3671878 at *3 (E.D. Wis. July 23, 2014)
(citing Wis. Adm. Code § DOC 309.466). Given the purpose
of the release account, federal courts do not deem it prudent
to focus on that account as the source of funds to satisfy
the filing fee payment requirements. Smith v.
Huibregtse, 151 F.Supp.2d 1040, 1042 (E.D. Wis. 2001).
As the Seventh Circuit has instructed, “like any other
civil litigant, [a prisoner] must decide which of [his] legal
actions is important enough to fund, ” Lindell v.
McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003); thus, if
a prisoner concludes that “the limitations on his funds
prevent him from prosecuting [a] case with the full vigor he
wishes to prosecute it, he is free to choose to dismiss it
voluntarily and bring it at a later date.” Williams
v. Berge, No. 02-CV-10, 2002 WL 32350026, at *8 (W.D.
Wis. Apr. 30, 2002). The Court will, therefore, deny
Plaintiff's motion. Though he need not pay an initial
partial filing fee, the full filing fee will be collected
from his prison trust account in monthly installments as
IT IS ORDERED that on or before July
13, 2018, Plaintiff may file a letter with the court
stating that he does not wish to proceed with this action, in
accordance with the directions provided above. If no such
letter is received by that date, the court will determine
whether the action can continue to proceed in forma
pauperis. The court will review the complaint to
determine that the action is not frivolous or malicious and
that the complaint states a claim upon which relief can be
granted. If the complaint does not meet this standard, the
action will be dismissed;
IS FURTHER ORDERED that copies of this order be sent
to the officer in charge of the institution where the inmate
is confined; and
IS FURTHER ORDERED that Plaintiff's motion to
pay the filing fee from his release account (Docket #4) ...