Michelson v. Duncan et al

Filing 199

ORDER: Plaintiff's 196 Motion Contesting Filing Fee, is STRICKEN and, alternatively, DENIED. Signed by Chief Judge Frank D. Whitney on 3/14/2020. (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-50-FDW
CHRISTOPHER LEE MICHELSON,

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Plaintiff,
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vs.
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VAN DUNCAN, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on the pro se Plaintiff’s pro se Motion Contesting
Filing Fee, (Doc. No. 196). He claims that prison officials are holding back funds from his prison
account, which his father funds from his social security payments, for the filing fee. This has
resulted in decreased access to commissary.
Plaintiff filed this pro se Motion while represented by counsel, and counsel has not adopted
the Motion. Therefore, the Motion is not properly before the Court and will be stricken. See
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (noting there is no constitutional right to a “hybrid
representation” in which defendant is represented both by himself and by counsel); Cain v. Peters,
972 F.2d 748, 750 (7th Cir.1992) (representation by counsel and self-representation are mutually
exclusive entitlements in light of McKaskle).
Even if the Motion was properly before the Court it would be denied. The Prison Litigation
Reform Act (“PLRA”) provides that, “if a prisoner brings a civil action … in forma pauperis, the
prisoner shall be required to pay the full amount of the filing fee….” 28 U.S.C. § 1915(b)(1). Thus,
the PLRA “makes prisoners responsible for their filing fees the moment the civil action or appeal
is filed, … [and] by filing the complaint or notice of appeal, the prisoner waives any objection to
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the fee assessment by the district court.” McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir.
1997) (citation omitted), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007); see
also Goins v. Decaro, 241 F.3d 260, 262 (2d Cir. 2001) (“we are not at liberty to read into the
PLRA judicial authority to cancel remaining indebtedness for withdrawn appeals.”); Williams v.
Roberts, 116 F.3d 1126, 1127 (5th Cir. 1997) (“the filing fee is to be assessed for the privilege of
initiating an appeal, without regard to the subsequent disposition of the matter.”). Plaintiff is still
required to pay the full filing fee even though the action has been dismissed. Therefore, the Motion
would be denied even if it was properly before the Court. See McGore, 114 F.3d at 607; 28 U.S.C.
§ 1915(b)(1).
IT IS THEREFORE ORDERED that Plaintiff’s pro se Motion Contesting Filing Fee,
(Doc. No. 196), is STRICKEN and, alternatively, DENIED.
Signed: March 14, 2020

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