Kitchen v. Winn et al

Filing 10

ORDER DENYING without Prejudice Plaintiff's 6 Motion --Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL KITCHEN,
Case No. 2:17-cv-11627
Judge George Caram Steeh
Magistrate Judge Anthony P. Patti

Plaintiff,
v.
O’BELL T. WINN, et al.,
Defendants.
__________________________/

ORDER REGARDING PLAINTIFF’S JUNE 26, 2017 MOTION (DE 6)
Michael Kitchen (#189265), who is currently in the MDOC’s custody at
Earnest C. Brooks Correctional Facility (LRF), has filed the instant lawsuit in pro
per against ten (10) named defendants, each of whom is described as located at the
Saginaw Correctional Facility (SRF). (DE 1.) To date, the Court has entered: (1)
an order waiving prepayment of the filing fee and directing payment of the initial
partial filing fee and subsequent payments (DE 4), which also granted Plaintiff’s
application to proceed in district court without prepaying fees or costs (DE 2); and
(2) an order directing service without prepayment of costs and authorizing the U.S.
Marshal Service (USMS) to collect costs after service is made (DE 8). In addition,
the USMS has acknowledged receipt of service of process documents. (DE 9.)
Thus, service upon the Defendants is ongoing.

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Judge Steeh has referred this case to me for all pretrial proceedings. (DE 7.)
Currently before the Court is Plaintiff’s motion for “proper interpretation” of the
Court’s May 30, 2017 order, to require refund and to impose sanctions. (DE 6.)
At issue are the order’s provision for an “initial partial filing fee” of $53.07, as
well as “monthly payments of twenty percent (20%) of the preceding month’s
income credited to plaintiff’s account[,]” see also 28 U.S.C. § 1915(e)(2), and the
order’s directive that “in subsequent months, or from time to time, forward
payments of twenty percent (20%) of the preceding month's income credited to
plaintiff's account to the Clerk of this Court until plaintiff has paid the entire filing
fee of $350.00.” (DE 4.) In sum, Plaintiff seeks a court order requiring the
MDOC “to properly interpret its order concerning the federal filing fee and to
refund $60.00 to Plaintiff’s prison account . . . .” (DE 6 at 1.)
Upon consideration, Plaintiff’s June 26, 2017 motion (DE 6) is DENIED
WITHOUT PREJUDICE.

Preliminarily, Plaintiff claims that an Exhibit C

evidences that he was left with a spendable balance of $0.00 following the
aforementioned withdrawals and “the withdrawal of other outstanding obligations .
. . .” (DE 6 at 4.) However, Plaintiff’s filing only contains two exhibits: (1) an
account statement for the date of June 5, 2017, which indicates a same-day receipt
of $300.00, followed by federal filing fee debits of $53.07 and $60.00, and five
postage debits of $0.46, and shows a balance of $184.63 (Exhibit A); and (2)
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Plaintiff’s June 7, 2017 letter challenging the simultaneous withdrawals totaling
$113.07 (comprised of the initial partial filing fee and a monthly payment), to
which K. Weiner appears to have responded on June 8, 2017 (Exhibit B). (DE 6 at
6-7.)1

As for Plaintiff’s claim that the simultaneous federal filing fee debits

violated the statute, the provision at issue provides:
After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
month's income credited to the prisoner's account. 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.
28 U.S.C. § 1915(e)(2) (emphases added). While the handwritten note indicates
that the simultaneously withdrawn $60.00 was 20% of the June 5, 2017 $300.00
deposit (see DE 6 at 7), and without giving further interpretation to this Court’s use
of the phrase, “in subsequent months, or from time to time,” (DE 4), it remains that
the one-day account statement does not clarify for the Court the amount of “the
preceding month’s income” credited to Plaintiff’s account. As such, Plaintiff may
renew his request if and when he can convince the Court that the practice
employed in this case violates Section 1915(e)(2).
IT IS SO ORDERED.

1

Perhaps this is because there two page 3’s in Plaintiff’s motion. (See DE 6 at 45.)
3 

Dated: July 5, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent parties of record on
July 5, 2017, electronically and/or by U.S .Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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