Owens v Coe et al

Filing 7

ORDER: The Clerk is hereby DIRECTED to STRIKE the unsigned complaint (Doc. 1) and return a copy of the pleading to Plaintiff along with this Order. The Clerk is further DIRECTED to provide Plaintiff with a copy of a blank civil rights complaint form .Plaintiff is ORDERED to file a properly signed complaint within thirty (30) days (on or before February 20, 2015). In addition, Plaintiff shall resubmit any exhibits he wishes the Court to consider along with the complaint. Finally, as it appears that Plaintiff is able to pay the $400.00 filing fee in this case, his motion for leave to proceed IFP (Doc. 4) is DENIED. Plaintiff is ORDERED to pay the $400.00 filing fee in this case within thirty (30) days (Action due by 2/20/2015, Amended Pleadings due by 2/20/2015). Signed by Chief Judge Michael J. Reagan on 1/21/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYRONE OWENS, #B09385,
Plaintiff,
vs.
DR. JON COE, et al,
Defendants.

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Case No. 14-1421-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This matter is before the Court for consideration of Plaintiff’s complaint (Doc. 1)
and his motion for leave to proceed in forma pauperis (“IFP motion”) (Doc. 4). As discussed in
more detail below, the Court shall strike Plaintiff’s unsigned complaint (Doc. 1) and deny his
IFP motion (Doc. 4).
The Complaint
Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983, and he is
proceeding pro se. Upon review of the complaint, the Court notes that Plaintiff did not sign the
pleading. Federal Rule of Civil Procedure 11 states, “Every pleading, written motion, and other
paper must be signed . . . by a party personally if the party is unrepresented.” In order to proceed
with this action, Plaintiff must file a complaint containing his signature within thirty (30) days
(on or before February 20, 2015). In addition, Plaintiff shall resubmit any exhibits he wishes the
Court to consider along with the complaint. If Plaintiff fails to comply with this order, this
action shall be dismissed. See Fed. R. Civ. P. 41(b). The Clerk shall be directed to return the
Complaint (Doc. 1) to Plaintiff along with this order.

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The Court also notes that the unsigned pleading addresses numerous claims
against twelve prison officials at two institutions. The claims arise from conduct that has
occurred since 2013. The complaint includes allegations that Plaintiff faces “imminent danger”
of harm, but Plaintiff seeks no immediate relief, either in the form of a temporary restraining
order (“TRO”) or a preliminary injunction. The only relief sought in the “Request for Relief” is
monetary damages. The Court takes claims of imminent danger very seriously. Should Plaintiff
seek any sort of immediate relief, whether in the form of a TRO or a preliminary injunction, he
should file a separate motion pursuant to Federal Rule of Civil Procedure 65 that sets forth the
specific relief sought and each of the reasons that said relief is warranted. He must sign the
pleading.
IFP Motion
Plaintiff filed a properly signed motion for leave to proceed in forma pauperis
(“IFP motion”), in which he seeks leave to proceed without prepayment of the Court’s ordinary
filing fee of $400.00 1 in civil cases. See 28 U.S.C. § 1914(a). Pursuant to 28 U.S.C. § 1915, a
federal court may permit an indigent prisoner to bring a “suit, action or proceeding, civil or
criminal,” without prepayment of fees upon presentation of an affidavit stating the prisoner’s
assets, as well as “the nature of the action . . . and affiant’s belief that the person is entitled to
redress.” 28 U.S.C. § 1915(a)(1). In the case of civil actions, a prisoner’s affidavit of indigence
must be accompanied by “a certified copy of the trust fund account statement (or institutional
equivalent) for the prisoner for the 6-month period immediately preceding the filing of the
1

Effective May 1, 2013, the filing fee for a civil case was increased to $400.00, by the addition of a new
$50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See Judicial
Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914, No. 14.
A litigant who is granted IFP status, however, is exempt from paying the new $50.00 fee and must pay a
total fee of $350.00.

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complaint . . . , obtained from the appropriate official of each prison at which the prisoner is or
was confined.” 28 U.S.C. § 1915(a)(2). Upon tender of a proper affidavit and certified copy of a
trust fund account statement, a prisoner is assessed an initial partial filing fee of twenty percent
of the greater of: (1) the average monthly deposits to the prisoner’s trust fund account; or
(2) the average monthly balance in the prisoner’s trust fund account for the six-month period
immediately preceding the filing of the suit. See 28 U.S.C. § 1915(b)(1)(A)-(B). After payment
of the initial partial filing fee, a prisoner is required to make monthly payments of twenty percent
of the preceding month’s income (including all deposits to the inmate account from any source)
credited to the prisoner’s trust fund account. See 28 U.S.C. § 1915(b)(2). The agency having
custody of the prisoner must forward payments from the prisoner’s trust fund account to the
clerk of the district court where the prisoner’s case is pending each time the amount in the
account exceeds $10.00 until the filing fee in the case is paid. See id.
For purposes of calculating the average monthly balance in a prisoner’s trust fund
account for the six-month period preceding the filing of a lawsuit, 28 U.S.C. § 1915 does not
specify whether a court should use opening monthly balances, daily balances, or closing monthly
balances. See Pinkin v. Ayzenberg, No. 98 C 5637, 1999 WL 410035, at *1 n.1 (N.D. Ill.
May 27, 1999) (noting that, because Section 1915 is ambiguous as to whether opening monthly
balances, daily balances, or closing monthly balances should be used to calculate a prisoner’s
initial partial filing fee, a court is free to use any one of the three or to rely solely upon average
monthly deposits to a prisoner’s trust fund account in calculating the fee). Relying upon the
information contained in Plaintiff’s certified copy of his trust fund account statement, the Court
finds that twenty percent of the average closing monthly balance in Plaintiff’s trust fund account
for the six-month period immediately preceding the filing of this suit is $865.24.

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Accordingly, Plaintiff’s initial partial filing fee would be $865.24, a sum considerably greater
than the $400.00 filing fee in this case. Accordingly, the Court will require Plaintiff to pay the
$400.00 filing fee within thirty (30) days of this Order. The Court will complete its preliminary
review of the complaint pursuant to 28 U.S.C. § 1915A, once Plaintiff tenders payment of the
$400.00 filing fee for this action and files a properly signed complaint.
Disposition
The Clerk is hereby DIRECTED to STRIKE the unsigned complaint (Doc. 1)
and return a copy of the pleading to Plaintiff along with this Order. The Clerk is further
DIRECTED to provide Plaintiff with a copy of a blank civil rights complaint form.
Plaintiff is ORDERED to file a properly signed complaint within thirty (30) days
(on or before February 20, 2015). In addition, Plaintiff shall resubmit any exhibits he wishes the
Court to consider along with the complaint.
Finally, as it appears that Plaintiff is able to pay the $400.00 filing fee in this case,
his motion for leave to proceed IFP (Doc. 4) is DENIED. Plaintiff is ORDERED to pay the
$400.00 filing fee in this case within thirty (30) days (on or before February 20, 2015). Payment
of the $400.00 filing fee shall be sent to: United States District Court, Clerk’s Office, 750
Missouri Avenue, P.O. Box 249, East St. Louis, Illinois, 62201. At the time payment is made,
Plaintiff’s name and the case number assigned to this action shall be clearly identified.
Failure to comply with these orders will result in dismissal of this action for
failure to comply with an Order of this Court. Fed. R. Civ. P. 41(b). See generally Ladien v.
Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994).
Plaintiff is FURTHER ADVISED that he is under a continuing obligation to
keep the Clerk and each opposing party informed of any change in his address, and that the

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Court will not independently investigate his whereabouts. This shall be done in writing and not
later than seven (7) days after a transfer or other change in address occurs. Failure to comply
with this order will cause a delay in the transmission of court documents, and may result in a
dismissal of this action for want of prosecution. The Clerk is DIRECTED to mail a copy of this
Memorandum and Order to the Trust Fund Officer at the Pinckneyville Correctional Center upon
entry of this Memorandum and Order.
IT IS SO ORDERED.
DATED: January 21, 2015

s/ MICHAEL J. REAGAN
CHIEF UNITED STATES DISTRICT
JUDGE

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