STOKES v. DEGREEF et al

Filing 9

ORDER Granting 5 Motion to Amend filed by WALTER STOKES and 2 Motion for Leave to Proceed in forma pauperis filed by WALTER STOKES. Plaintiff must return documents referenced herein by 9/7/2017. Signed by Magistrate Judge Brian K. Epps on 08/08/2017. (pts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
WALTER STOKES,

)
)
Plaintiff,
)
)
v.
)
)
ALAIN DEGREEF; WILLIAM BAILEY;
)
BRYAN CANNATA; ADRIAN TILLMAN; )
and VINCENT MULLER,
)
)
Defendant.
)
_________

CV 117-090

ORDER
_________
Plaintiff, an inmate at Lee State Prison in Leesburg, Georgia, has submitted to the
Court for filing a complaint brought pursuant to 42 U.S.C. § 1983 regarding events allegedly
occurring in Richmond County, Georgia. Plaintiff seeks to proceed in forma pauperis. After
reviewing Plaintiff’s application, it appears that he lacks sufficient resources to prepay the
filing fee. (Doc. no. 2.) Accordingly, the Court GRANTS Plaintiff leave to proceed in
forma pauperis, subject to compliance with the conditions of this Order.
Plaintiff is hereby advised that under the Prison Litigation Reform Act, Pub. L. No.
104-134, 110 Stat. 1321, all prisoners, even those who are allowed to proceed in forma
pauperis, must pay the filing fee of $350.00 in full. 28 U.S.C. § 1915(b)(1). Plaintiff must
also pay the full appellate court filing fee if a Notice of Appeal is filed. Prisoner litigants
allowed to proceed in forma pauperis must pay an initial partial filing fee of twenty percent
(20%) of the greater of the average monthly deposits to, or the average monthly balance in,

the prisoner’s account for the six-month period immediately preceding the filing of the
complaint. Prison officials are then required to collect the balance of the filing fee by
deducting twenty percent (20%) of the preceding month’s income credited to Plaintiff’s
account. 28 U.S.C. § 1915(b)(2). This payment shall be forwarded to the Clerk of Court
“each time the amount in the account exceeds $10 until the filing fees are paid.” Id. The
entire filing fee must be paid even if this suit is dismissed at the outset because it is frivolous,
malicious, fails to state a claim, or seeks monetary damages against a defendant who is
immune from such relief.
In addition to requiring payment of the full filing fee, the Act requires prisoners to
exhaust all administrative remedies prior to filing a federal lawsuit which challenges “prison
conditions.” 42 U.S.C. § 1997e; see 18 U.S.C. § 3626(g)(2). All prisoner civil rights actions
are subject to dismissal if the prisoner has not exhausted the available administrative
remedies with respect to each claim asserted. Moreover, even if the complaint is dismissed
for failure to exhaust, the prisoner will still be responsible for payment of the full filing fee.
The law also provides that a prisoner cannot bring a new civil action or appeal a
judgment in a civil action in forma pauperis if the prisoner has on three or more prior
occasions, while incarcerated, brought a civil action or appeal in federal court that was
dismissed because it was frivolous, malicious, or failed to state a claim upon which relief
may be granted. The only exception to this “three strikes” rule is if the prisoner is in
“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Because of these requirements in the law, the Court will give Plaintiff an opportunity,
at this time, to voluntarily dismiss the complaint pursuant to Fed. R. Civ. P. 41(a)(1). Such a
2

voluntary dismissal will not require Plaintiff to pay the filing fee or count as a dismissal
which may later subject him to the three-dismissal rule under section 1915(g). Plaintiff may
dismiss his case at this time by filing a notice of dismissal.
However, should Plaintiff choose to proceed with his case, Plaintiff MUST comply
with the following instructions:
(1)

Plaintiff must furnish the enclosed Prisoner Trust Fund Account Statement

to the trust (financial) officer of each prison where he has been confined for the past six
months. The trust officer will complete and sign the form and return the form and supporting
documents to Plaintiff for submission to the Court. Two copies of the form are enclosed for
this purpose.1
(2)

Plaintiff must sign and date the enclosed Consent to Collection of Fees from

Trust Account. By signing this form, Plaintiff gives his consent to the collection of the
entire filing fee from his prison account in installments, in accordance with the provisions of
the Prison Litigation Reform Act.
(3)

Plaintiff must return both the Prisoner Trust Fund Account Statement and

the Consent to Collection of Fees from Trust Account to the Clerk within thirty days of
this Order.
Once Plaintiff has returned the required forms, the Court will review Plaintiff’s

The Court is aware that Plaintiff has submitted an account statement for Plaintiff’s
prison account in conjunction with the motion to proceed in forma pauperis. (Doc. no. 2.)
Nevertheless, Plaintiff must follow the instructions set forth in this Order regarding the
enclosed Prisoner Trust Account Statement so that the trust officer can provide the Court
with the information needed to determine the amount of any appropriate initial filing fee.
1

3

complaint to determine which, if any, claims are viable and which, if any, Defendant should
be served with a copy of the complaint.
Plaintiff is cautioned that while this action is pending, he shall immediately inform
this Court of any change of address. Failure to do so will result in dismissal of this case,
without prejudice.
If Plaintiff fails to respond to this Order within thirty days, the Court will
presume that Plaintiff desires to have this case voluntarily dismissed and will dismiss
this action, without prejudice.
Plaintiff has also filed a motion to amend seeking to correct the name of Defendant
Alan DeGreef to Alain DeGreef. (Doc. no. 5.) Because no responsive pleading has been
served, Plaintiff may amend his complaint once as a matter of course. Fed. R. Civ. P. 15(a).
Thus, the Court GRANTS Plaintiff’s motion to amend. (Doc. no. 5.)
Because Plaintiff only wishes to change his complaint to reflect the correct name of
Alain DeGreef, the Court will not require Plaintiff to file a new complaint. Accordingly, the
Court DIRECTS the Clerk to amend the caption so that Alan DeGreef is now reflected as
Alain DeGreef on the docket.
SO ORDERED this 8th day of August, 2017, at Augusta, Georgia.

4