Gillespie (ID 102828) v. McGee

Filing 5

ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $18.50. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as requi red herein may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed for failure to state a federal constitutional claim. Plaintiff's motion 3 to appoint counsel is denied. Signed by Senior District Judge Sam A. Crow on 2/20/2013. (Mailed to pro se party Christopher A. Gillespie by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHRISTOPHER A. GILLESPIE,
Plaintiff,
v.

CASE NO.

13-3014-SAC

LISA McGEE,
Defendant.
O R D E R
This pro se civil complaint was filed pursuant to 42 U.S.C.
§ 1983 by an inmate currently confined at the Sedgwick County
Jail

in

initial

Wichita,
partial

Kansas.

filing

Plaintiff

fee,

cure

is

other

required

to

deficiencies

pay
in

an

this

complaint, and to show cause why this complaint should not be
dismissed for failure to state a claim.

INITIAL PARTIAL FILING FEE ASSESSED
The
federal

statutory
court

is

fee

for

$350.00.

filing

a

Plaintiff

civil
has

rights
filed

a

action

in

motion

to

Proceed without Prepayment of Fees (Doc. 2), and has attached an
Inmate

Account

Statement

in

support

as

statutorily

mandated.

Under 28 U.S.C. § 1915(b)(1), being granted such leave does not
relieve an inmate of the obligation to pay the full filing fee.
Instead, it merely entitles him to proceed without prepayment of
1

the

full

fee,

payments

and

deducted

to

pay

the

filing

automatically

from

fee
his

over
inmate

account as authorized by 28 U.S.C. § 1915(b)(2).
1915(b)(1),

requires

filing

of

fee

the

twenty

court

percent

to
of

assess
the

time

an

through

trust

fund

Furthermore, §
initial

greater

partial

of

average

the

monthly deposits or average monthly balance in the prisoner’s
account for the six months immediately preceding the date of
filing

of

a

civil

action.

Having

examined

the

records

of

plaintiff’s account, the court finds the average monthly deposit
to plaintiff’s account during the relevant time was $93.65, and
the average monthly balance was $26.15.

The court therefore

assesses an initial partial filing fee of $18.50, twenty percent
of

the

average

dollar.

monthly

deposit,

rounded

to

the

lower

half

Plaintiff is required to pay the statutory fees for

each action that he files in this court.

Plaintiff must pay the

initial partial filing fee assessed in this action before it may
proceed further, and will be given time to submit the fee to the
court.

His

failure

to

submit

the

initial

fee

in

the

time

allotted may result in dismissal of this action without further
notice.

COMPLAINT NOT ENTIRELY LEGIBLE
This
court’s

complaint

electronic

was
filing

submitted
system,
2

by

plaintiff

through

the

and

parts

it

not

of

are

legible.

Plaintiff is required to file a legible complaint upon

court-approved forms.
within

the

time

He is warned that if he fails to comply

specified

by

the

court,

this

action

may

be

dismissed without further notice.

FAILURE TO STATE A CLAIM
Because Mr. Gillespie is a prisoner, the court is required
by statute to screen his complaint and to dismiss the complaint
or any portion thereof that is frivolous, fails to state a claim
on which relief may be granted, or seeks relief from a defendant
immune from such relief.

28 U.S.C. § 1915A(a) and (b); 28

U.S.C. § 1915(e)(2)(B).

“To state a claim under § 1983, a

plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under
color

of

state

(1988)(citations

law.”

West

omitted);

v.

Atkins,

Northington

v.

487

U.S.

Jackson,

42,
973

48-49
F.2d

1518, 1523 (10th Cir. 1992).
It appears from the portions of the complaint that can be
read, that Mr. Gillespie is attempting to sue a private citizen
who was the victim of the state crime of which he was convicted
that involved the use of her credit card.
victim made a false claim.

He alleges that this

Plaintiff alleges no facts to show

that this private citizen was “acting under color of state law.”
3

Accordingly, plaintiff is required to show cause why this action
should not be dismissed for failure to state a claim.

If he

fails to show such cause within the time specified by the court,
this action may be dismissed without further notice.

MOTION TO APPOINT COUNSEL
The

court

has

considered

plaintiff’s

Motion

Counsel (Doc. 3) and finds it should be denied.

to

Appoint

There is no

right to assistance of counsel in a civil rights lawsuit, and it
appears that this action has no merit.

IT IS THEREFORE BY THE COURT ORDERED

that plaintiff is

granted thirty (30) days in which to submit to the court an
initial partial filing fee of $18.50.

Any objection to this

order must be filed on or before the date payment is due.
failure

to

pay

the

fees

as

required

herein

may

result

The
in

dismissal of this action without prejudice.
IT

IS

FURTHER

ORDERED

that

period, plaintiff is required
should

not

be

dismissed

within

the

same

thirty-day

to show cause why this action

for

failure

to

state

a

federal

constitutional claim.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint
Counsel (Doc. 3) is denied.
IT IS SO ORDERED.
4

Dated this 20th day of February, 2013, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

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