Chisholm v. Officer Fazion et al

Filing 8

ORDER Granting re 6 MOTION for Leave to Proceed in forma pauperis filed by Jonathan Raymond Chisholm. Signed by Magistrate Judge G. R. Smith on 1/10/18. (jrb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOHNATHAN RAYMOND CHISHOLM,
Plaintiff,
v.
OFFICER FAZION, CHATHAM COUNTY
SHERRIF’S DEPARTMENT
Defendants.

FILED
Scott L. Poff, Clerk
United States District Court

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By James Burrell at 1:25 pm, Jan 10, 2018

CV417-234

ORDER
Plaintiff Johnathan Chisholm, an inmate at Chatham County
Detention Center, has submitted a 42 U.S.C. ' 1983 Complaint alleging
Officer Fazion subjected him to excessive force.
proceed in forma pauperis (IFP).

See Doc. 1.

Docs. 3 & 6.

He seeks to

After reviewing

plaintiff's amended application, it appears that he lacks sufficient
Accordingly, the Court GRANTS

resources to prepay the filing fee.

plaintiff leave to proceed in forma pauperis.

Docs 3 & 6.

Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110
Stat. 1321 (PLRA), all prisoners, even those who are allowed to proceed
IFP, must pay the full filing fee of $350.00.
1

28 U.S.C. ' 1915(b)(1).

Prisoner IFP litigants must pay an initial partial filing fee of 20 percent
of the greater of the average monthly deposits to, or average monthly
balance in, the prisoner’s account for the 6-month period immediately
preceding the filing of the Complaint.

Prison officials are then required

to collect the balance of the filing fee by deducting 20 percent of the
preceding month’s income credited to the prisoner's account.
' 1915(b)(2).

28 U.S.C.

This payment shall be forwarded to the Clerk of Court

Aeach time the amount in plaintiff's account exceeds $10 until the full
filing fees are paid.@

Id.

The entire filing fee must be paid even if the

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 PLRA
now requires prisoners to exhaust all administrative remedies before
challenging Aprison conditions@ in a civil action.
18 U.S.C. ' 3626(g)(2).

42 U.S.C. ' 1997e; see

All prisoner civil rights actions filed after April

26, 1996 are subject to dismissal if the prisoner has not exhausted the
available administrative remedies with respect to each claim asserted.

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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 PLRA 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 Athree strikes@ rule is if

the prisoner is in Aimminent danger of serious physical injury.@

28

U.S.C. ' 1915(g).1

1

Plaintiffs are generally required to pay a filing fee in order to institute a civil action
in a federal district court. 28 U.S.C. ' 1914. Indigent prisoners may avoid
prepayment of the filing fee under 28 U.S.C. ' 1915, but must surmount ' 1915(g):
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. ' 1915(g). A three-striker who fails to show “imminent danger” must pay
the complete $350 filing fee when he initiates suit. Vanderberg v. Donaldson, 259
F.3d 1321, 1324 (11th Cir. 2001). Short of that, the court dismisses the Complaint
without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
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Because of these legal parameters, 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 voluntary dismissal will not require

plaintiff to pay the filing fee or count as a dismissal which may later
subject plaintiff to the three-dismissal rule under section 1915(g).
IT IS HEREBY ORDERED that:
(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.
(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.

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(3)

Plaintiff must return both the Prisoner Trust Account

Statement and the Consent to Collection of Fees from Trust
Account to the Clerk within thirty days of the date this Order is served.
The Clerk of Court is DIRECTED to serve along with a copy of this
Order (1) a Prisoner Trust Account Statement form, and (2) the Consent
to Collection of Fees from Trust Account form.
Plaintiff shall have thirty days from the service of this Order to fill
out and return both forms.

Once plaintiff has complied with the

conditions of this Order, the Court will review plaintiff's Complaint to
determine which, if any, claims are viable and which, if any, defendants
should be served with a copy of the Complaint.

If no response is timely

received from plaintiff, the Court will presume that plaintiff desires to
have this case voluntarily dismissed.
Failure to comply with this Order within thirty days of the
date this Order is served shall result in the recommendation of
dismissal of plaintiff's case, without prejudice.
SO ORDERED, this 10th day of January, 2018.

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